Introduction

I have been fortunate to have been asked to comment on the remarkable article Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals by Judge Jeremy D. Fogel, Professor Mary S. Hoopes, and Judge Goodwin Liu.1 Drawing on a rich vein of data collected pursuant to a carefully crafted research design and extensive interviews, the authors provide the most detailed account to date of the selection criteria used by federal appellate court judges to select their law clerks. The authors pay particular attention to the role that diversity plays in the selection of law clerks,2 an important element that has not been fully explored until now. Before I share my thoughts on the article, I want to offer a brief history lesson on the lack of diversity among law clerks in federal and state courts. The employment barriers faced by women, ethnic minorities, and Jewish law clerks throughout the twentieth century help put into context the current interest among judges in hiring candidates from diverse backgrounds; I believe this interest includes an appreciation of the value of diversity, a sincere desire to rectify the discriminatory hiring practices of previous generations of judges, and a concern that failure to expand the selection criteria for clerk judges will attract public scrutiny. In what follows, I will focus on the findings of Fogel, Hoopes, and Liu and offer some thoughts on future research questions.

 A Brief History Regarding the Lack of Diversity in the Supreme Court Law Corps

A. Gender, Racial, and Ethnic Diversity Among Supreme Court Law Clerks

Although Supreme Court justices began employing law clerks in the late 1880s,3 the first female law clerk on the Supreme Court was not hired until 1944.4 Her name was Lucile Lomen, a graduate of the University of Washington School of Law who was selected by Justice Douglas because qualified male candidates were serving in the military.5 Justice Douglas took his time in extending an offer to Lomen despite her strong letters of recommendation and impeccable credentials,6 and reached out to such reliable sources as former law clerk Vern Countryman to see “how [he] thought a girl would perform as a law clerk in this environment.”7 By all accounts, Lomen was an excellent law clerk. In a letter of recommendation written after her clerkship, Judge Douglas described Lomen as possessing “a brilliant mind and a solid foundation in the law . . . . “She has a great capacity for work, is thorough, reliable, and responsible in all respects.”8

Despite Judge Douglas’s success in hiring a first-class law clerk, his colleagues were not inspired to embrace gender diversity. Judge Kravitch of the Fifth and Eleventh Circuit Courts of Appeals graduated second in her class from the University of Pennsylvania Law School in 1943.9 After being unsuccessful in applying to clerk for judges on the Third Circuit, Judge Kravitch sent a clerkship application to Supreme Court Justice Murphy.10 “He [Judge Murphy] told me that preference would be given to a male student because there had never been a female clerk,” Judge Kravitch recounted.11

But after the interview he told me that it was his birthday and that his secretary had bought him a cake. The other justices were coming to share, and [she asked me] if I would do her the honor of staying and cutting the cake. So I didn’t get the clerkship, but I did hostess. 12

She was also turned down by a law firm after they found out she was Jewish. 13 Judge Kravitch later became the first woman to be appointed to the Fifth Circuit Court of Appeals. 14

In 1960, another young Jewish law school graduate named Ruth Bader Ginsburg was turned down for a Supreme Court clerkship by Judge Frankfurter. 15 Fort McDowell Yavapai Nation Chief Justice Bender clerked for Justice Frankfurter from 1959 to 1960, and recalled the judge’s reaction to having a woman in the office:

One day during term, Justice Frankfurter came into our office and announced, “Guess who [Harvard Law School professor] Al Sacks wants to send me as a law clerk next year: Ruth Bader Ginsburg.” My co-clerk and I told him it was a wonderful idea, but Justice Frankfurter responded that “she has a couple of kids [(Ginsburg had a daughter)], and her husband has been sick [(Martin Ginsburg had recovered from cancer)], and you know I make you guys work very hard, and sometimes I curse” as reasons why it would not be a good idea. Well, that was not the case. We had the softest job of all the law clerks on the court—we didn’t work nights or weekends—and the judge didn’t use four-letter words. I concluded that the judge was not comfortable with a female law clerk.16

Justice Ginsburg was not surprised by Justice Frankfurter’s decision, although she was disappointed. “There were no anti-discrimination laws on the books when I graduated from law school, and men of a certain age were not accustomed to dealing with women in a work environment,”17 Justice Ginsburg noted. She added that having a young child also reduced her chances of receiving a clerkship offer.18

Twenty years after Justice Kravitch “hosted” Justice Murphy, not much had changed on the Supreme Court. Although Stanford Law School student Brooksley Born was at the top of her class and the first female editor-in-chief of the law review,19 Born was not recommended by the Stanford Law School clerkship committee for a Supreme Court clerkship. 20 Undeterred, Born secured interviews with Justices Stewart and Goldberg. 21 Justice Stewart told Born that he was “not ready” for gender equality on his bench, while Justice Goldberg declined to extend her a clerkship offer but wrote a memo supporting her requests for a lower court clerkship. 22 Born ended up clerking for Judge Edgerton of the U.S. Court of Appeals for the District of Columbia—at the time, the only federal circuit judge to hire female law clerks—before joining Arnold & Porter.

A year later, Yale Law School graduate Barbara Paul Robinson also discovered that attending an elite law school and holding an editorial position at a top-tier legal journal was not enough to overcome the gender bias in clerkship applications. 24 She had two “painful” interviews with Supreme Court justices, neither of whom extended her an offer of employment. 25 “I wondered if they were doing this to be polite to whoever arranged it,” Robinson recalled. 26 Rather than work as an intern, Robinson accepted a position at Debevoise & Plimpton, eventually becoming the first female partner in the firm’s history. 27 It would not be until 1966 that the second female law clerk at the Supreme Court, Margaret Corcoran, was hired by Justice Black. 28 While Justice Black should be commended for selecting a female intern, his selection had less to do with gender equity and more to do with Justice Black’s friendship with Margaret’s father, former New Dealer and prominent Washington lawyer Tommy “the Cork” Corcoran. Corcoran.29 Two years later, Justice Fortas hired Martha F. Alschuler as the third female law clerk on the Supreme Court.30

The Supreme Court was also slow to embrace racial diversity in law clerks. William T. Coleman, Jr., a graduate of Harvard Law School, was the first African American to be a law clerk on the Court.31 Despite graduating magna cum laude from law school, Coleman struggled to find legal employment because of his race, a fact he bluntly shared in a clerkship application to Judge Black: “Despite my training, because of the fact that I am Negro, I have encountered considerable difficulty in securing a suitable position.”32

Coleman was hired in 1948 by Judge Frankfurter (the same Judge Frankfurter who refused to hire a female law clerk).33 Judge Frankfurter’s election made headlines across the country.34 Decades later, Coleman explained that he was the beneficiary of changing attitudes toward race:

I knew I was the first… But I knew that under different circumstances Charlie [(Charles Hamilton)] Houston and Bill [(William H.)] Hastie would have been the first because they were brighter and more capable people… but they lived in a different time and did not have the same opportunities.35

However, times were not changing fast enough. It was nearly two decades before Tyrone Brown became the second African-American law clerk when he joined Chief Justice Warren’s staff in 1967. 36 Brown did not apply for the clerkship but was nominated for the position by a professor at Cornell Law School. 37 When asked if the Chief Justice had sought to hire a minority law clerk, Brown said:

I would be very surprised if it were not true that Chief Justice Warren had said it would be nice to have a qualified black law school graduate on the Court…but I have no indication that Warren “cast a net” for qualified black students. 38

Brown later described Chief Justice Warren as a “beloved man” and one of his heroes. 39

When the first black law clerk, William Coleman, served on the Supreme Court, Jim Crow segregation laws prohibited him from dining at Justice Frankfurter’s favorite restaurants. 40 In contrast, Tyrone Brown recounted that he was “not a black law clerk” and “not a black law clerk.” that the chief justice routinely took his law clerks to lunch at the University Club, which remained segregated into the late 1960s.41 The practice continued when Brown joined the chambers.42 “Earl Warren loved to take me to lunch,” Brown said. “What were they going to do?”43

The first African American woman to clerk on the Court was Karen Hastie Williams, who was hired by Justice Marshall in 1974.44 Williams later described Justice Marshall not only as her godfather, but also as “a mentor and an inspiration.”45 Discussing her internship for an oral history project, Williams argued for the importance of hiring law clerks from diverse backgrounds:

I think it’s very important that the court clerks represent a broad cross-section of American society because the cases that are heard and the opinions that are written are going to affect Americans all over the country and I think that for the court to be truly representative of all American citizens, having clerks that come from different backgrounds means that the dialogue of the clerks with the Judge and the clerks with each other, the dialogue is going to look at different perspectives.46

Williams stated that Justice Marshall also valued diversity among his law clerks.

“[He said], ‘I want my clerks to be representative of the American population. I want women as clerks and I want clerks of color, but that doesn’t mean there have to be four women clerks or four black clerks. ’”48 However, he acknowledged criticism that Justice Marshall did not hire enough minority clerks. 49 “I think he was aware of the criticism that was being leveled at him, but his goal was to do everything he could to get a strong representative group within his clerkship pool.”50

Hiring of minority and female clerks to the Supreme Court increased in the 1970s and 1980s. 51 But, as noted in the Fogel, Hoopes, and Liu article, 52 in the late 1990s, Supreme Court clerks were still predominantly male and white. 53 In addition, some of the Rehnquist Court justices, including Chief Justice Rehnquist and Justices Kennedy, Scalia, and Souter, had not yet hired a black clerk. 54

B. Law Clerk Diversity in the Federal Courts of Appeals

Given the lack of comprehensive data on employment by gender and race in these positions, it is more difficult to determine when women and minorities began to be hired as law clerks in the lower federal and state courts. Using newspaper archives and law journal articles, I attempted to gather accurate records of law clerks using a combination of search terms (such as “first woman” or “first female” and “law clerk”). Given the racial terms of the time, the terms “first black” and “first Negro” were also used, along with “law clerk.” 55 While I believe my data collection efforts have uncovered many “firsts,” hires of law clerks from diverse backgrounds that were not covered in newspapers or immortalized in law journals would not have been recorded.

A second problem in identifying the incidence of law clerks from underrepresented backgrounds arises from the initial ambiguity of the term “law clerk.” Justice Holmes referred to his young clerks as law clerks, although the Harvard Law School graduates who worked for Justice Holmes did substantial legal work. 56 Others who worked on the Court and were called law clerks were actually stenographers. 57 And some newspaper articles use the phrase “law clerk” to refer to people who worked in clerks’ offices. Finally, accounts of the job duties of early law clerks are lacking and cannot affirmatively support the conclusion that, regardless of having the title “law clerk,” such individuals performed substantial legal work.

Federal appeals court judges were first authorized to hire law clerks in 1930. 58 While historical accounts have commonly identified Carmel Prashker Ebb as the first woman to clerk in the appellate courts, 59 there is evidence to suggest that Florence Anna de Haas Dembitz was the first woman to achieve that honor. 60 A 1934 graduate of Columbia Law School and the daughter of a prominent Zionist leader, Dembitz was working, according to newspaper accounts written at the time of her death, as a “law clerk” 61 or law clerk for Judge Mack of the Second Circuit Court of Appeals. 62 If Dembitz was a law clerk, it was a short-lived position; By late 1934, he was working for prominent New York lawyer and reformer Adolph A. Berle, Jr.63 Dembitz subsequently held multiple legal positions in New Deal agencies before his tragic death in an automobile accident in 1955.

If Dembitz was not the first woman to clerk on a federal appeals court, then the title probably belongs to Ida Oranovich Creskoff. 65 In 1914, she graduated in the top four of her class from the University of Pennsylvania Law School. 66 For the next fifteen years, Creskoff practiced law, serving as a law clerk to Judge Thompson of the Third Circuit Court of Appeals from 1937 to 1938. 67 Creskoff subsequently served as a law clerk to Judge Maris of the Third Circuit Court of Appeals from 1939 to 1947. 68 Creskoff described Judge Maris as an “intolerant” man—“intolerant of injustice, intolerant of prejudice, intolerant of insincerity.” 69 She was later appointed clerk of the court for the Third Circuit,70 a position she held until 1966. 71 In retirement, Creskoff reflected on her pioneering career. “Today, women who go into law have fewer problems—they are taken for granted, which is all you can ask for,” she told the Philadelphia Daily News.72 “The law firm that hired me when I was in private practice had courage, as did the judges who appointed me to the bench in 1947.”73

About the same time Creskoff clerked for Judge Thompson, Mildred M. Spalding began clerking for the Sixth Circuit.74 Spalding clerked for Judge Hamilton of the federal district court and “read [the] law.”75 Spalding had previously worked for Judge Hamilton in his private practice, and she was a trusted member of his legal team; she was assigned substantive duties (such as collecting criminal defendants’ backgrounds before sentencing) and was known as “Judge Hamilton’s virtual ‘law partner.’” 76 Spalding was promoted to law clerk when Judge Hamilton was elevated to the Sixth Circuit Court of Appeals in 1938. 77 Judge Hamilton clearly valued Spalding’s dedication; when he died in 1946, he left Spalding a legacy of two thousand dollars. 78 Spalding finished her career working as a clerk for federal district court judge Shelbourne. 79

These progressive hiring practices in gender diversity began to slowly spread across the circuits. Like Spalding, Nell Rhodes Fisher began her legal career as a clerk for federal judge Murrah. 80 After Judge Murrah suggested she become a lawyer, Fisher enrolled in night law school while continuing to work as a clerk and raise a son as a single mother. 81 Fisher’s secretarial duties were not limited to filing and taking dictation; On one occasion, she was temporarily appointed as an acting assistant U.S. marshal and assigned the task of transporting a female prisoner by train to a federal prison in West Virginia without the benefit of a sidearm. 82

Upon Fisher’s graduation from law school in 1940, Judge Murrah promoted her to law clerk. 83 “I think it was a shock to men,” Fisher remarked of the beginning of her “cutting-edge” legal career. 84 Her grandson Tad Rhodes recalls that balancing work and family obligations was a challenge for Fisher. 85 Rhodes described his grandmother as a “tough, firm” woman who did not mince words: “We went out to dinner after I took the bar exam. ‘Better men than you fail the bar on their first try.’ That’s what [my] grandmother told me at dinner. She was salty.”86

While Carmel Prashker Ebb was not the first woman to work as a law clerk for a federal court judge in 1940, she was a “tough, firm” woman who did not mince words: “We went out to dinner after I took the bar exam. ‘Better men than you fail the bar on their first try.’ That’s what [my] grandmother told me at dinner. She was salty.”87

While Carmel Prashker Ebb was not the first woman to work as a law clerk for a federal court judge in 1940, she was a “tough, firm” woman who did not mince words: “We went out to dinner after I took the bar exam. ‘Better men than you fail the bar on their first try.’ That’s what [my] grandmother told me at dinner. She was salty.”88
appeals, she was the first to speak publicly about her experience. 87 After graduating from Columbia Law School in 1945, she was hired by Judge Frank of the Second Circuit. 88 “[F]EMALE graduates could not expect to be recommended as law clerks to sitting judges, no matter how well their records compared with those of their male classmates,” Ebb wrote. 89 Undaunted, Ebb put her new advocacy skills to use:

So I was delighted to read an article in the Saturday Evening Post by Judge Jerome Frank of the United States Second Circuit Court of Appeals in New York, who opined that women were just as intellectually competent as men, and that there was no reason not to hire a woman to do what was traditionally a man’s job. . . . After reading Frank’s words of encouragement, I wrote him a letter outlining my credentials and ambitions. . . And to my surprise, I received an invitation to come and speak with him. It was love at first sight and Columbia confirmed that I was qualified to be a paralegal, although I would never have thought about it.

Despite having served as a law clerk on the appeals court under a judge of the caliber of Jerome Frank, Ebb’s efforts to subsequently clerk on the U.S. Supreme Court were also thwarted by her gender; while Ebb was interviewing with a judge, he told her that his wife would not allow him to clerk with a woman.91 However, Ebb took pride in the fact that her husband later served as a law clerk to Chief Justice Vinson.92

Ebb’s two-year clerkship may have led Judge Frank to hire his second law clerk, future Judge Wald of the D.C. Circuit Court of Appeals.93 There is a familiar pattern in Judge Wald’s story. A 1951 graduate of an elite law school94 and a member of its law journal, she struggled to find legal employment. 95 Judge Wald recounted an interview she had with a major New York law firm and the role gender played in the decision not to hire her: “‘It’s really a shame,’ she recalled the man [(a hiring partner)] saying. ‘If only you had been here last week. ’ She was told that they had hired one woman at the time, and that it would be a long time before the firm would consider bringing another on board.”96 At the time of her appellate clerkship in 1951, Judge Wald was the only female law clerk in the entire Second Circuit. “Frank was very, very pro-women,” she explained.97 “[A]head of his time.”98

In a 2018 oral history interview, Judge Wald explained the importance of diversity in selecting law clerks:

I had 70 law clerks over a 20-year period. By the way, half of them were women, about half. I made it my goal to get as many women as possible. I tried to get some of the elite law schools that weren’t fancy, so I had several over the period. I tried to get diversity, but it wasn’t always easy because some of the best female candidates that came to us in terms of diversity went to other judges who were better “feeders” than I was on the Supreme Court.99

Judge Wald’s observations about gender and academic diversity and the challenges faced by judges who want to select diverse candidates echo those reflected in the article written by Fogel, Hoopes, and Liu.

In 1947, the D.C. Circuit Court of Appeals Kennedy joined the Second, Third, and Sixth Circuits by hiring its first female law clerk when Chief Justice Stephens hired University of Michigan Law School graduate Cornelia Groefsema Kennedy. 100 While she was a pioneer in terms of female law clerks on the D.C. Circuit, she was not a legal pioneer in her own family: Kennedy’s sister, Margaret Groefsema Schaeffer, graduated from the University of Michigan Law School before Kennedy and accepted a clerkship with Sixth Circuit Judge McAllister. 101 Kennedy credited her sister Margaret with helping her obtain a clerkship. 102 “My judge had never had a female law clerk before,” Kennedy explained. 103 “I actually got my job because I was Margaret’s sister and Judge McAllister had written to Judge Stevens to recommend me.” 104 Judge McAllister must have been impressed with Kennedy’s talents because he wrote the recommendation letter after Kennedy’s appointment. 105 Kennedy added that she had suspected that Judge McAllister’s wife also pressured him to hire a secretary. 106

In a joint interview, the sisters recalled the gender discrimination prevalent at the time. 107 During their clerkships in the Sixth and D.C. Circuits, neither sister could recall ever seeing a female attorney argue an appeal, 108 and, when they began private law practice together, new clients assumed they were secretaries. 109

The two sisters continued parallel career paths, with Kennedy later serving as a federal district court judge before being appointed to the federal appeals court and Schaeffer sitting on a state court. 110 They were most likely the first sisters to serve as judges. 111 Justice Kennedy was the first woman appointed to the federal district court in Michigan and was later on the short lists of Presidents Nixon, Ford, and Reagan to be appointed to the federal court of appeals. the first woman to sit on the Supreme Court.112

Even on the appeals court, Justice Kennedy was reminded of the gender discrimination faced by women in the law:

Upon arriving at her new post in Cincinnati, Justice Kennedy was surprised to be presented with a hot plate. The only previous female justice

C. Law Clerk Diversity in the Federal District Courts and State Supreme Courts

Federal district court judges were first authorized to hire law clerks in 1936,114 and, like their appellate counterparts, were slow to adopt gender parity in hiring law clerks. However, unusually high concentrations of female law clerks were found in some federal trial courts in the 1950s and 1960s. Judge Burnita Shelton Matthews, the first female federal district court judge, hired only women as law clerks because none of the other judges hired women.115 And by the mid-1950s, all five federal judges in the Eastern District of Michigan had one female law clerk.116 In a 1952 issue of the Women Lawyers Journal, Chief Judge Lederle discussed the educational background and accomplishments of each law clerk as follows:

From the wealth of this experience in working with law clerks graduated from various universities, together with our knowledge of the admirable judicial services of our good friend, Judge Florence E. Allen, of our Sixth Circuit Court of Appeals at Cincinnati, and our observation of women practicing before us, we know that women have earned a place of honor in the profession. legal.117

Chief Judge Lederle could not hide his pride when he spoke of his own law clerk, Ruth Riddell, who had worked at his side for fourteen years.118

Federal Judges in the Eastern District of Michigan continued to hire women as law clerks, which caught the attention of the Detroit News.119 Judges interviewed for a 1966 article praised not only their own female clerks but also female attorneys in general.120 “Women intuitively have a sense of the law that most men do not have,” Judge Thornton said.121 His comments were seconded by Judge Machrowicz. “I think women enjoy and do a better job of reading and searching for laws than their male counterparts.”122 Both judges’ female law clerks had served in their positions for more than a decade. 123

In the spring of 1959, Judge Palmieri of the Southern District of New York made a fateful decision that subsequently impacted not only the professional career of a young law school graduate but also, arguably, the future of the Supreme Court: he extended a clerkship offer to then-attorney Ruth Bader Ginsburg. 124 Hiring a law clerk with such a diverse background was not an aberrant decision by Judge Palmieri:

[I]n his first ten years on the federal bench, three of his law clerks were Jewish women (Jeanne Ritchie Silver, Ruth Bader Ginsburg, and Malvina Ha[l]berstam) and four were Jewish men (Benjamin M. Sheiber, Alvin Hellerstein, Alvin Schulman, and Gordon I. Gordon). All of these law clerks were exceptionally outstanding students who had attended either Columbia or Yale Law School.125

Judge Palmieri’s record on law clerk diversity is remarkable, given the gender and religious discrimination that existed at the time.

However, discriminatory hiring practices prevailed in the federal courts. Women and minorities faced many of the same religious and gender barriers in the hiring process for law clerk positions in lower federal courts as they did on the Supreme Court.126 When Justice Ginsburg decided to seek a law clerk position during her third year at Columbia Law School, she was rejected by both Judge Frankfurter and Second Circuit Judge Learned Hand.127 She later explained:

In the 1950s, few judges even interviewed women for law clerk positions. (Judge Palmieri’s very excellent and dear friend Judge Learned Hand, for example, did not want any women as law clerks in his chambers and did not hesitate to say so.) In my case, there was some hesitation on Judge Palmieri’s part. I was a woman, and that was not a problem for him. But I was also the mother of a four-year-old. Luckily, at the urging of one of my professors at Columbia Law School, Judge Palmieri decided to take a chance on me. He thereafter hired other mothers, satisfied that they could do the job. 128

By all accounts, Judge Palmieri was thrilled with his decision to hire Justice Ginsburg. 129 She clerked for Judge Palmieri for two years, and he became her lifelong mentor and friend. 130 While it is impossible to know whether Justice Ginsburg would have enjoyed the same level of remarkable professional success without Palmieri’s clerkship, it is not far-fetched to argue that without a judge like Edmund Palmieri, there might not have been a “Notorious RBG.”

With the exceptions noted above, few women clerked in the lower federal courts in the 1950s and 1960s;131 when women began to be hired as legal secretaries in greater numbers, newspaper stories chronicling their successes were sexist, condescending, and fixated on their physical appearances.132 The Boston Globe ran the headline “Don’t Call Her ‘Lawyer’” when Sandra Lynch became the first woman to clerk in the federal courts in Rhode Island.133 The article described Lynch as a “tall, slim” woman with “large hazel eyes, long brown hair and a soft voice.”134 The Los Angeles Times informed its readers that the first woman to clerk in the Ninth Circuit (Lana Ruth Borsook) had brown hair and eyes,135 while the Charlotte News observed that the first woman hired by a federal district court judge in North Carolina (Sally Hall) “looks like a model but thinks like a model.”136 The Times also noted that the first woman to be hired by a federal district court judge in North Carolina (Sally Hall) “looks like a model but thinks like a model.”137 lawyer she is” and “reads Glamour Magazine and can’t live without Vogue.”136

The Tampa Times became obsessed with physical appearance and femininity when it covered the hiring of Stella Louise Ferguson by federal district court Judge Simpson.137 “Lawyers and court attachés are sure to note that she is an attractive 24-year-old blonde woman with a charming smile and a quietly friendly personality,” the paper reported.138 The article went on to describe her height, build, and eye color in more detail and was accompanied by a photo of Ferguson, with the caption “Career Girl.”139 The paper reassured its readers that Ferguson was “prettier than her photo shows.”140 Based on this misogynistic account, is it any wonder that “try as she might, Miss Ferguson will not be able to separate her femininity from her work”?141

Yet the Asbury Park Sunday Press outdid its competitors. He published several photographs of newly hired paralegal Kathy Flicker in a bathing suit and called her “a girl [who] has everything going for her” and who “considers herself very feminine” despite her athletic career as a competitive swimmer.142 The article ends with the journalist questioning Flicker about the attributes her “‘ideal man’” would have.143

Some female attorneys found that state court judges were more willing to adopt gender-neutral hiring practices for law clerks than their federal counterparts. For example, New Mexico Supreme Court justices hired several female law clerks in the 1930s.144 Among them was Marcia Hertzmark Freed, who was one of the first women to clerk in an American court.145 And in the 1940s and 1950s, the majority of Louisiana Supreme Court law clerks were women, several of whom would spend decades working on the high court.146

African Americans slowly found job opportunities as law clerks in the lower federal and state courts. Before becoming the first black man to serve as a Supreme Court clerk,147 William Coleman clerked for federal appeals court Judge Goodrich in 1947.148 He is likely the first racial minority to clerk on a federal appeals court. As with his position as Supreme Court clerk,149 Coleman’s hiring was covered by the media. “The day I started working for Judge Goodrich, both Philadelphia newspapers… “It carried pictures of Judge Goodrich and me, and the caption said I was the first non-white law clerk in the entire federal court system in the United States,” Coleman recalled.150

In the fall of 1948, Clifford R. Moore, a graduate of Temple University Law School and a law journal editor, was elected to clerk for Judge Forman of the District of New Jersey.151 Remarkably, Moore worked as Judge Forman’s bailiff while attending law school.152

There are scattered accounts in the media of African Americans being selected to clerk in federal and state courts in the 1940s and 1950s.153 The appointment of Herbert O. Reid, Sr., a graduate of Harvard Law School, as clerk of the Massachusetts Supreme Court in 1945 was covered by newspapers across the country,154 suggesting that the court was not a white law clerk.155 that Reid was probably the first minority man to clerk in any court. Of Reid’s hiring, Chief Justice Field told a local newspaper that Reid was “selected on merit and on the basis of the information we had about him.”155 The chief justice did not mention race. However, a North Carolina newspaper clumsily broached the subject of race when it noted that Reid, like his father (a messenger for the Speaker of the U.S. House of Representatives), “brought honor to his race.”156 Reid later taught for forty-one years at Howard University School of Law.157

The earliest accounts of racially minority women working as law clerks in federal courts date back to 1964, when then-federal district court judge Higginbotham hired Yale Law School graduate Eleanor Holmes Norton to work as his law clerk. 158 However, some newspapers have misidentified Norton as the first woman to serve as a law clerk for a federal district court judge. 159 Judge Higginbotham was one of the first African-American judges appointed to the federal bench, and he valued diversity among his law clerks:

In my 29 years on the federal bench, I hired more than 50 law clerks. This pluralistic mix included African-American women and men, white women and men, Asian-Americans, and Hispanics. For some of them, I had to look beyond what people consider the list of legitimate credentials to see their talent.160

Describing Judge Higginbotham’s clerks as “the rainbow coalition,”161 former law clerk Margaret Chon notes that “[t]he judge demonstrated that there is a large pool of qualified and competent minority law clerks available to those willing to look beyond elitist and exclusionary criteria.” 162 Chon wrote these observations in 2000, anticipating similar conclusions from the Fogel, Hoopes, and Liu article. 163

Joyce Hughes, the first black woman to graduate from the University of Minnesota Law School, was selected to clerk for federal district court Judge Larson in 1965. 164 Hughes’ desire to go to law school stemmed from an encounter she had with a law school recruiter when she was a student at Carleton College. 165 “I ended up going to law school because I was angry at a recruiter from Columbia Law School who suggested that I [(a Phi Beta Kappa graduate)] couldn’t be a lawyer,” Hughes explained. 166 In comments about her career, Hughes noted how her gender secured her a longer clerkship:

When my appointment was announced only because of my race, its importance to women was overlooked… [T]he judge received a benefit for being a woman. What was then to have been the usual one-year clerkship was extended to two years when draft deferments for federal law clerks were no longer available because of the Vietnam War. The man chosen to succeed me thus became immediately eligible to be drafted… [And] I agreed to serve another year.167

Women law school graduates seeking clerkships benefited from the Vietnam War and the recruitment of their male counterparts. Penelope Dalton Coffman, the first woman to clerk on the Virginia Supreme Court, was interviewed and subsequently hired by Judge Spratley in 1966, after the judge lost two of his law clerks in the draft and requested that William & Mary Law School recommend a candidate for the clerkship who was not “recruitable.”168 Coffman fit the bill.

African Americans selected for clerkships continued to be front-page news throughout the 1970s. 169 These newspaper articles help document the gradual gains made by minority candidates in both federal and state courts, as well as the motivations of the jurists who helped end discriminatory hiring practices. When Monmouth County Superior Court Judge Yaccarino was interviewed in 1973 about his decision to hire Lawrence Lawson, he carefully summarized Lawson’s talents and credentials before addressing the issue of race: “He had worked very hard and was very active in law school, and I thought it was about time we had a black law clerk.” 170

In conclusion, racial and gender diversity in law clerk hiring developed slowly in federal and state courts. While specific search terms can be used to track the hiring of women and African American law clerks, it is more difficult to document the demands and presence of other types of diversity, such as religious, academic, socioeconomic, or sexual orientation. 171 Part of the difficulty stems from the fact that some diverse law clerks remained hidden due to prejudice and hate, such as clerks who were LGBTQA+. New York Times journalist Adam Liptak writes that before the 1990s, there were no Supreme Court law clerks who publicly identified as gay, but that today clerks are more willing to disclose their sexual orientation. 172 Professor John Jeffries, a former law clerk and official biographer of Justice Powell, has observed that “everything in the world has changed. The fact that there are gay law clerks is a grain of sand on that beach.” 173 However, given current attitudes toward sexual orientation and gender fluidity, it is a safe bet that many paralegal candidates remain in the closet and therefore undermine efforts to further diversify the paralegal corps.

II. The Current Demand for Law Clerk Diversity in the Federal Appeals Courts

This historical appreciation of the lack of diversity among federal and state court law clerks provides critical context for Fogel, Hoopes, and Liu’s article Law Clerk Selection and Diversity. As noted above, the article provides a comprehensive analysis of how federal appeals court judges select and hire law clerks.174 Some of the selection criteria are not surprising. Judges want bright (top of their class), hard-working, well-educated (strong academic pedigree and law review experience) law clerks who excel at legal research, writing, and analysis.175 And judges want law clerks who can work together as a team, which the article’s authors refer to as “assembling an ensemble.”176

The authors’ findings that “nearly all judges . . . The reasons for valuing diversity are fascinating.177 Reasons for valuing diversity vary among judges, from those who believe that selecting diverse candidates offers groups traditionally underrepresented in law school the opportunity to benefit from a federal clerkship to those who think that clerks with a variety of backgrounds and experiences affect the quality of the decisions judges make and the opinions they write.178 Surely, judges are also affected by changes in clerk hiring practices in federal courts.179 And some may be motivated by publicity negative effect that comes with non-diverse hiring practices.180 Given the historic lack of diversity among law clerks in federal courts, and the undeniable implication that past generations of federal judges followed discriminatory hiring practices or failed to value diversity in their hiring decisions, this finding alone is encouraging.

Recognizing that “diversity” is a vague term, the authors also carefully discuss the different dimensions of diversity (such as academic, racial, gender, socioeconomic, sexual orientation, and ethnic) and the emphasis that judges place on various forms of diversity in the hiring process. 181 The article also explores the links between judges’ own diverse backgrounds, their goals of having a diverse chamber staff, and how applicant self-selection can undermine or help judge efforts to hire diverse candidates. 182 This discussion is invaluable because it helps the reader (who hopefully includes federal judges) appreciate how judges give weight to different dimensions of diversity and the fact that wanting diverse law clerks (regardless of how diversity is defined) is a necessary but not sufficient condition for hiring diverse clerks.

Unlike many academic studies, which seem to offer no solutions to the problems they analyze, the article concludes with some practical suggestions on how judges, who are independent and do not typically discuss their hiring processes with their peers, can share their best practices in selecting law clerks and achieve their goals of a diverse corps of law clerks. 183 Given the fact that the judges interviewed by the authors reported some success in attracting diverse candidates,184 sharing tips on how to attract and hire diverse candidates is an important first step toward selecting law clerks who more accurately reflect our rich and complex society.

If the authors continue their pioneering work on the role diversity plays in law clerk hiring, they should consider the tension between law clerk diversity, substantive job duties, and ideological compatibility. My own research on law clerks confirms the findings in Section 185 that judges are less willing to seek out diverse or nontraditional candidates for clerkships if they routinely assign them substantive job duties. In other words, judges are afraid to deviate from the familiar if they fear negative consequences regarding mediocre chamber work.

Consider the following example. A student at American University Washington College of Law once asked the late Justice Scalia how she could be “outrageously successful” without the requisite insider connections. 186 Although Justice Scalia urged her to “work hard and be very good,” she admitted that a Supreme Court clerkship was out of reach given her law school’s ranking:

In general… I’m going to choose from the law schools that are basically the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a fuss out of a silk purse. If the best and the brightest get in, the best and the brightest will probably leave. 187

To bolster his argument, Justice Scalia mocked the fact that he shared the position of law clerk and now federal appeals court judge Sutton with retired Justice Powell, and that Justice Sutton would never have been selected by Justice Scalia. “For God’s sake, he went to Ohio State! And he’s one of the best law clerks I’ve ever had.” 188

Why do judges like Justice Scalia need “the best and the brightest”? Because judges require their law clerks to review and summarize petitions for certiorari, prepare court memoranda, and write opinion drafts. Because of these responsibilities, the goal of hiring law clerks who are guaranteed to be “the best and the brightest” outweighs the goal of hiring more clerks from diverse backgrounds—for example, clerks who do not come from a handful of elite law schools or who have had no prior experience working for a small group of trusted judges.

Like Supreme Court justices, federal appellate court judges have delegated significant job responsibilities to their clerks. In a survey my colleagues and I submitted to appellate court judges, we found that nearly all respondents reported requiring their law clerks to prepare the first draft of opinions and that most respondents had their clerks review opinions written by other chambers. 189 Federal district court judges reported a similar delegation of substantive duties. 190 These practices will undoubtedly remain the same as federal judges continue to struggle with increased workloads. A pertinent question is this: While judges sincerely desire diverse candidates, do they believe they can afford to take risks, real and imagined, with clerks from obscure law schools? Do other types of diversity raise similar concerns for federal judges?

The article also raises questions about the influence of law clerks. The authors write that “the judges we interviewed uniformly described their clerks as essential to the quality of their firms’ work product.”191 But are these same federal appeals court judges concerned about the influence law clerks exert on judicial outcomes? While there is no evidence to suggest that federal judges have turned over their decision-making authority to their clerks, the process of drafting an opinion (and interpreting how the law supports a preferred outcome) has been assigned to relatively young and junior lawyers.

The notion that judges discover, rather than create, the law has been challenged by generations of legal scholars. In situations where traditional tools of legal interpretation do not work (such as textualism, drafters’ intent, and stare decisis), alternative theories of judicial decision making have been proposed and tested. Social background theory posits that a judge’s personal characteristics (from gender and race to religion and birth order) help explain judicial outcomes.192 The attitudinal model asserts that judges consult their own political preferences to determine whether a judge’s decision is correct or not.

If we assume that a judge’s personal attributes, policy preferences, and strategic decisions help us explain and predict judicial behavior, then the same argument can be made about law clerks. 195 And if judges themselves appreciate that background characteristics and preferences infiltrate the work of the bench, shouldn’t their hiring decisions take into account the relationship between who they hire to clerk and judicial outcomes? In short, a candidate’s ideology is relevant in hiring. “I won’t hire law clerks who have profound disagreements with me,” Justice Thomas once explained. 196 “It’s like trying to train a pig. It wastes your time and it annoys the pig.” 197 Instead, Justice Thomas focuses on recruiting “trench buddies.” 198 These buddies may be diverse in terms of gender, race, and sexual orientation, but they lack ideological diversity. And studies suggest that ideological compatibility is valued by all judges.199

Does the fact that the judges in the Fogel, Hoopes, and Liu study claim that law clerks’ ideology is not important in their selection (a claim also reflected in my own work on the selection of federal appellate court clerks) contradict the suggestion that law clerks have the power to shape decisions to reflect their own political preferences? Are these judges reluctant to admit that ideology, not the law, shapes decision making? I hope that Fogel, Hoopes, and Liu will continue their impressive research and explore whether law clerks’ duties, and the related question of influence, are in tension with various hiring practices.