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Opinion Are federal judges violating the Constitution when they hire their clerks?

Luke McCloud, former law clerk for Brett M. Kavanaugh, and attorney Rochelle Garza, right, testify before the Senate Judiciary Committee in 2018. (AP Photo/J. Scott Applewhite)

Are federal judges violating the Constitution when they hire their law clerks? It sure looks as though the Supreme Court is about to rule that many are — which would be a grave mistake.

For new law graduates, there’s no job more prestigious than clerking for a federal judge. The position generally lasts just a year, but the credential endures a lifetime. Depending on the level of clerkship, elite law firms pay bonuses to former clerks approaching $500,000 — on top of six-figure salaries. It matters who lands these jobs; securing a coveted clerkship is part of the pipeline to success — in government, academia and the private sector.

And guess who’s not in the pipeline? Men outnumber women and, even more, White clerks outnumber Black and Hispanic ones. Black people accounted for 8.7 percent of law school graduates in 2019, but just 4.1 percent of those clerking for federal judges the following year. Asians accounted for 8.5 percent of graduates and 6 percent of federal clerks; Hispanics 11.9 percent of graduates and 7.9 percent of federal clerks, according to the National Association for Law Placement.

Men obtain the lion’s share of federal clerkships — 53.4 percent to 46.6 percent in the class of 2016. This is particularly puzzling because women now outnumber men among law students; one explanation may be an “ambition gap” in which female students are less likely to seek clerkships than their male peers.

Ruth Marcus: Originalism is bunk. Liberal lawyers shouldn’t fall for it.

Judges are aware of this imbalance and, a new study shows, taking steps to address it. The study, based on confidential, in-depth interviews with 50 federal appellate judges, found that the vast majority take diversity into account in their clerkship hiring.

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“Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate,” concluded the authors, retired federal judge Jeremy Fogel, executive director of the Berkeley Judicial Institute; California Supreme Court Justice Goodwin Liu; and Pepperdine law professor Mary Hoopes.

The judges they interviewed were remarkably candid about their hiring practices. “I see racial diversity as a bonus for me,” one Democratic appointee said. “If I see a candidate with a different background than your typical White candidate, I give them an opportunity. … I’ll be honest: If I have two equal candidates, I pick the one of color.”

Another judge, nominated by a Republican president, said that once an applicant had the “objective factors” — top 5 to 10 percent of the class at a top-ranked law school, “then diversity is a plus.” Said another judge, a Democratic appointee, “I do, to some extent, take race into account. I have a lot of South Asian and Asian applicants. But I actively look for Hispanic and African American candidates.”

Only two judges, both Republican appointees, expressed “firm opposition to any consideration of race or ethnicity in hiring,” the study reported.

Which brings us to the knotty question at the start of this column: Is this allowed? The question is front and center before the Supreme Court this term, as the justices consider whether college and university admissions officers can engage in the same kind of enterprise their colleagues described: taking race into account as one factor among many.

Justice Elena Kagan raised the clerkship analogy with the lawyer challenging Harvard University’s race-conscious admissions program. She didn’t mention him by name, but her colleague, Justice Brett M. Kavanaugh, boasted — with good reason — about his record of hiring female and minority clerks during his confirmation hearings, and he’s continued that performance on the high court, where just three of the 20 clerks he has hired have been White men. This doesn’t happen by accident.

“If you’re a judge, and you want to have a diverse set of clerks, do you think a judge can’t think about that in making clerkship decisions?” Kagan asked.

“That is an admirable goal,” replied the lawyer, Cameron T. Norris, who clerked for Justice Clarence Thomas. “I don’t think a judge could implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to Black and Hispanic applicants. I think you need to treat people equally based on race.”

Kagan pressed on: “The question is, when race-neutral means can’t get you there, don’t get you there, when you’ve tried and tried and they still won’t get you there, can you go race-conscious?”

Norris: “I don’t believe so, Justice Kagan.”

And this is highly likely to be where the Supreme Court comes out. In previous rulings, the court has said that admissions officers can consider race as a “plus factor” in assembling a diverse student body.

The judges are engaged in a similar exercise, for similarly legitimate reasons. “I hope it doesn’t sound trite, but I do think our institutions need to look like America,” a Republican appointee said.

Just when the numbers show judges are doing too little on clerk diversity, the Supreme Court appears poised to tell them the opposite. If those challenging race conscious admissions win, Fogel said in an interview, the consequences could be drastic. “The judges are going to be told you’re not supposed to consider” race, he said. “How can a judge do something that is illegal for other people to do? I think it will have a significant chilling effect on efforts to diversify.”

If so, the pipeline into the top echelons of law firms, government and academia will get whiter. How is this good for America?