Federal Judges Hire Few Minorities For Elite Federal Clerkships

Federal judicial clerkships are among the most coveted jobs young lawyers can obtain — if not the most coveted job. Law clerks spend a year as one of a judge’s closest aides, advising the judge on how to decide cases and often drafting opinions. Elite law firms pay signing bonuses as high as $60,000 to former clerks, even though these clerks are normally recent law school graduates with little legal experience outside of clerkship. One of the best predictors that a new lawyer is destined for a prominent career in their new profession is the fact that the lawyer scored a federal clerkship shortly after graduation.

According to new data by the Administrative Office of the U.S. Courts, however, most judges are not extending this opportunity to minorities:

The decrease for African-American clerks between fiscal years 2006 and 2010 was most pronounced, with a decline from 3.5 percent of appellate level clerks in 2006 to 2.4 percent in 2010, the new report states. The number of Hispanic appellate level clerks dropped from 3.1 percent to 2 percent during the same period.

At the district court level, the percentage of African-American clerks declined from 3.5 percent to 3.2 percent, while Hispanic clerks remained steady at 3.3 percent.

This latest breakdown of law clerks by race shows African-Americans fill fewer of those spots now than they did in 2000.

Federal judges obviously wield enormous power. They have broad discretion to decide how many years a person will spend in prison. They can breathe life into essential protections for workers and consumers — or invent new ways to immunize corporations from the law. And they can shape how our Constitution itself is understood. Among other things, it is very unlikely that the frivolous constitutional argument against the Affordable Care Act would have picked up any steam if two federal district court judges had not handed down opinions legitimizing this view.

Yet a judge’s power to shape the legal profession by hiring law clerks should not be neglected as an exercise of power. When judges hire minority clerks, they welcome these lawyers into the highest eschelons of a profession that remains dominated by white attorneys. Nor is the impact of this power limited to racial diversity. When a federal judiciary that remains dominated by Republican appointees disproportionately doles out elite clerkships to conservative lawyers, it shifts the upper reaches of the legal profession rightward.