Paul Mirengoff, Substack, December 4, 2022
A senior partner at a firm I once worked at liked to tell the story of his interview for a clerkship with Justice Hugo Black. At the end of the interview, the partner (as he later became) promised that if selected for the clerkship, he would do everything in his power to help the Justice. Black replied that he didn’t select clerks so they could help him, he selected clerks so he could help them.
To the extent that a judicial clerkship is a favor, we shouldn’t be surprised that, in selecting clerks, some judges are influenced by connections (both Hugo Black and the partner were from Alabama), affinities, and even prejudices. That’s human nature.
However, the law forbids hiring decisions based on certain prejudices because they are to be despised. Foremost among such prejudices are those in favor or against members of a racial group.
Title VII’s prohibition against discriminatory employment decisions does not apply to federal judges; nor would a rejected clerkship applicant be inclined, at the start of his or her career, to sue a judge, in any event. When it comes to employment discrimination, including sexual harassment by the way, judges appear to be above the law.
Nonetheless, it was disheartening, though not surprising, to learn that many federal court of appeals judges, by their own admission, discriminate on the basis of race in choosing their law clerks. Judges, of all people, should adhere to the standards the law sets for the rest of society.
That many judges blithely ignore society’s anti-discrimination dictates is clear from a survey of 50 such judges undertaken by two former judges and a law professor. Of the 50 jurists who participated, only two said that conscious consideration of race is inappropriate.
Most of the judges who participated were appointed by a Democrat. A disproportionate number of them are minority group members themselves. Not surprisingly, these minority judges were the most prone to take race and/or ethnicity into account, according to the survey.
Some judges said they viewed being black or Hispanic as a “plus” when they select among clerkship candidates. But viewing race and ethnicity in themselves as plusses is discrimination on its face.
Some judges said the plusses they assign aren’t for race and ethnicity in themselves, but rather for the value that diversity brings to their chambers. These judges used the same kind of language colleges and universities employ to justify race-based admissions policies.
The study confirms that a significant portion of the federal appellate judiciary (the survey encompassed nearly 30 percent of it) strongly favors race-based preferences for certain minority groups. In the post Harvard/UNC environment, some of these judges will be deciding cases challenging such preferences under whatever standard the Court tries to lay down.