Clerkships Are a Pipeline to the Bench. We Need to Diversify Them

Diversity among judges affects diversity among clerks. And the deficit in law clerk diversity feeds the persistent lack of diversity in the judiciary.

Twenty-five of the 94 federal district courts have never had a non-White judge. This includes many districts with substantial non-White populations. The state courts aren’t much more diverse.

Judges preside over cases implicating litigants’—including criminal defendants’—livelihoods and liberty. When judges can’t empathize with those they serve, decisions are less fair and equitable.

Ideally, judges’ lived experiences would match those they serve. Yet there’s a significant pipeline problem for creating a judiciary that reflects the public. It takes decades to chart a career from law student to judge, and that path often starts with being a judicial law clerk. But clerks are notoriously homogenous, creating a persistent lack of diversity among judicial nominees.

The lack of diversity in judicial clerkships and the judiciary has larger implications for fairness in judicial decision-making and the future face of the legal profession. As we consider who rises through the legal profession—including to the judiciary—diversifying the profession starts with diversifying clerks.

How homogenous are clerks? In 2019, 79% of federal law clerks and 72% of state court clerks were White. Clerks are also disproportionately male and from a handful of top schools. As law students and the profession generally have diversified, judicial clerks and the judiciary haven’t. Both judges and law schools can make clerkships and pathways to the bench more accessible.

According to recent research, a handful of diverse federal appellate judges do the majority of diverse hiring (with “diversity” encompassing gender, gender identity, racial, socioeconomic, geographic, political, disability, law school, and veteran status). Ultimately, increasing the number of diverse judges could diversify clerk hiring. Sitting judges should also hire more diverse clerks. Diversifying the profession can’t fall on diverse judges alone.

Judges are constrained by who applies for clerkships. But they’re also limited by their assumptions based on past hiring experiences, as well as their hesitancy to take risks, to deviate from preconceived notions about what a law clerk should look like, and to intentionally diversify hiring.

Graduates beyond a few top law schools and the top of their classes can handle clerking. Hiring outside established methods is viewed as risky, considering the high stakes of the work and the intimacy of law clerk/judge relationships, but it benefits the profession overall.

Transparency is a missing piece in conversations about diversity and law school clerkship advising. Students lack candid information about clerkship experiences, judges as managers, and chambers culture that would enable them to make informed employment decisions. If diverse clerks were set up to succeed, then it would feed a virtuous cycle of more transparency and more diverse hiring.

Previous efforts to diversify judicial clerkships have focused on attorney-to-student mentorship programs: Connecting diverse candidates with former clerks for one-on-one application assistance. However, similar to the challenges clerkship advisors encounter, no mentor—and no law school—has information about all the judges applicants will apply to. Therefore, the best way to correct informational asymmetries and empower diverse students to clerk is by providing candid information about judges through robust post-clerkship surveys and information sharing across law schools.

Many law schools don’t conduct surveys, but even among law schools that survey their law clerk alumni, survey responses don’t represent diverse experiences because clerks are disproportionately White and male. The experience of a White male clerk with a White male judge could be different from that of a Black female clerk with the same judge. Furthermore, due to clerks’ fears of retaliation and reputational harm for saying anything negative about judges, survey responses are overwhelmingly positive.

Additionally, law schools “gatekeep” their support for students applying for clerkships. Schools disproportionately invest in the students with the highest grades—who are disproportionately White, male, and not first-generation—even though many students could succeed as clerks.

Students with the highest grade-point averages receive disproportionate outreach, support, and encouragement from faculty. Schools also overemphasize more “prestigious”—and more competitive—federal clerkships while de-prioritizing state court clerkships. However, emphasizing state clerkships would enable significantly more students to clerk.

Law schools also lack culturally sensitive clerkship advising. Clerkship advisers aren’t sufficiently diverse. Yet many historically marginalized groups seek advice from someone who can empathize with their lived experience, as well as information about clerkship experiences that mirror their identities.

Right now, students’ options are limited: Go it alone, or don’t clerk. The latter has significant implications for attorneys’ future career success because the legal profession prioritizes clerks in hiring. Rather than overhaul clerkship advising, we should empower students to efficiently “do their research” about judges by investing in robust information that reflects a diversity of experiences.

Furthermore, the messaging around clerkships is alienating to historically marginalized groups, who disproportionately enter law school not knowing about clerkships. This includes telling students they must accept the first clerkship they’re offered; that even a “challenging” clerkship (a euphemism for mistreatment) is “worth it” for the prestige; and that students should research judges by reaching out to their networks.

These students from diverse backgrounds disproportionately lack the formal networks and information channels that help their peers obtain clerkships, and they also have unique considerations, including whether judges hire diverse clerks and are sensitive to diverse identities.

The pathway to the bench starts with clerkships. Today’s law clerks are tomorrow’s prosecutors, public defenders, professors, law firm partners—and judges. Diversifying pathways to the bench necessitates providing more expansive and more candid information to applicants.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Aliza Shatzman is president and founder of the Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who don’t.

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