Leadership in Research, Service, & Education
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Clerkship Connections

Berkeley Judicial Institute confronts nagging lack of diversity in judges’ chambers

The federal clerkship hiring process is famously high stress and opaque — and a near-certain career-maker for those who nab a coveted spot.

But the demographics of these clerks lag even the composition of law school cohorts, despite years of good intentions and earnest effort. Informal studies show the ranks are dominated by white men who went to top law schools, particularly Yale and Harvard.

Researchers from the Berkeley Judicial Institute (BJI) set out to understand why the mix has been so difficult to change. In a groundbreaking study featuring interviews with 50 federal judges, they teased out some trends and potential new practices for hiring — and found that “diversity” doesn’t mean the same thing to every judge.

Retired judge Jeremy Fogel, the institute’s founding executive director, joined Pepperdine Law Professor Mary Hoopes and California Supreme Court Associate Justice Goodwin Liu on the project, leveraging their connections to both design the study for maximum participation and land the interviews.

Fogel is a former U.S. District Court judge for the Northern District of California who spent seven years leading the Federal Judicial Center, the federal courts’ education and research agency. Liu, a former Berkeley Law professor, clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg. Hoopes earned her Ph.D. from Berkeley Law’s Jurisprudence and Social Policy Program and was BJI’s research director when the study began.

Their combined experiences gave the researchers a unique advantage, Fogel says.

“Two of the authors each have many years of judicial experience, and all three have trusting relationships in the federal courts,” he says. “Those relationships, and the confidential interview format used instead of a more typical survey, allowed the participating judges to speak candidly and thoughtfully about their hiring processes.

“Their contributions not only reflect the complexity and sensitivity of the issues, but also underlie the concrete best practices we propose.”

The group of judges included 35 men and 15 women; 32 judges appointed by Democrats and 18 appointed by Republicans; and 30 who identified as Black, Asian American, or Hispanic.

They said they value diversity, although the dimensions vary, and try to build an ensemble of complementary clerks in each cohort. Republican appointees tend to weigh socioeconomic diversity more heavily than their Democratically appointed counterparts. And judges who prioritized racial diversity reported difficulty hiring Black and Hispanic clerks.

“The judges who hired the largest number of minority clerks are the ones who make a conscious effort to bring diverse candidates into their hiring pool, or value candidates based on components other than grades or class rank,” Fogel says.

The study, which will be published later this year in the Harvard Law Review, suggests how to diversify the clerk pool and urges judges to discuss hiring.

“Judges are likely to be most receptive to the views and practices of their peers,” the authors write.
— Gwyneth K. Shaw