A Concrete Proposal For Improving Diversity In Law Clerk Hiring

Civil Law ClerkHere’s an excellent idea, from Judge Vince Chhabria (N.D. Cal.).


Judge Vince Chhabria (N.D. Cal., at right) being sworn in by Judge Gregg Costa (5th Cir.). (Public domain photo via the U.S. Court of Appeals for the Ninth Circuit.)

The problem of diversity (or the lack thereof) in law clerk hiring isn’t going to solve itself. It will require concerted effort from a variety of constituencies, including judges themselves.

For example, Justice Brett Kavanaugh, back when he was a circuit judge, would meet with minority student groups at law schools around the country to offer them advice and encouragement about applying for clerkships. This proactive effort helped then-Judge Kavanaugh assemble one of the most diverse clerk rosters in the entire federal judiciary.

But much more can be done. Writing in the National Law Journal, Judge Vince Chhabria (N.D. Cal.) — a former Supreme Court clerk (OT 2001/ Breyer), and now a feeder judge himself — argues that federal judges, when hiring law clerks, should adopt their own version of the NFL’s “Rooney Rule,” which requires NFL teams to interview at least one minority candidate when hiring head coaches.

Judge Chhabria has already implemented such a rule when it comes to his own clerkship hiring:

When I took the bench around five years ago, I was struck by how many law clerks are white and from privileged backgrounds. This is to the detriment of the legal profession (in which people from all walks of life should have a chance to rise to the top) and the judiciary (which benefits from having people with different perspectives involved in the decision-making process). I thus adopted my own version of the Rooney Rule: I will not fill a law clerk slot until I’ve interviewed at least one minority candidate and at least one candidate from a non-“T-14” law school (since those schools tend to have more students from less-privileged backgrounds).

Obviously, I don’t always hire law clerk candidates who meet this description. But interviewing off-the-radar candidates has sometimes led me to hire a fantastic person who might not originally have been given an interview. Other times I’ve not hired the person, but the interview with me has led to interviews with other judges (often on my recommendation). Overall, my hiring process has been better because of this practice, and it has resulted in stronger chambers.

This approach is not without its costs, as Judge Chhabria points out:

[I]mposing a Rooney Rule on yourself makes hiring more difficult. It requires reaching out to law schools to make sure they know you want diverse candidates. It involves interviewing more people. And it requires self-discipline: you might lose the chance to hire a candidate you really like because they accept another offer while you’re waiting to comply with the rule. (I must sheepishly admit that occasionally in the first couple of years I violated my rule because of that time pressure.)

And as he also notes, the new Law Clerk Hiring Plan creates added complexities for judges who both follow the Plan and hope to implement some type of Rooney Rule.

But at the end of the day, according to the judge, the benefits — to clerks, to judges, and to the federal judiciary as a whole — far outweigh the costs. As Judge Chhabria, an avid fantasy-football player, concludes, “Who would have guessed that the endless time I’ve spent following football would help me serve more effectively as a judge? But it has. I urge federal judges to consider adopting their own version of the Rooney Rule for law clerk hiring.”

Why We Should Adopt a Rooney Rule for Law Clerks [National Law Journal]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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