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Saturday, July 08, 2006

Clerk hiring, demographics and empiricism

Amber at Prettier than Napoleon started an interesting blog debate with this post asking why there are so few female Supreme Court clerks.  Eugene Volokh jumped in here, and Ann Althouse chimes in here.  Comments at all three locales add greatly to the discussion.

Though the gender hiring realities for SCOTUS Justices (and circuit judges) are intriguing, I am also struck by the lack of "feeder" diversity reflected in this list of SCOTUS clerks.  Nearly all of the clerks arrive at the Supreme Court after a year with a federal circuit judge (and most from a small set of feeders).  I think the perspectives and insights of the clerks as a group would be greatly enhanced if more came from state court clerkships or district court clerkships or even positions in other government branches.

Moreover, I have long thought that many important issues surrounding law clerk hiring and service, especially in lower courts, are woefully under-explored.   In the on-going debate over gender, there is a lot of speculation and little data or serious empirical analysis of SCOTUS clerk hiring.   And I do not recall ever seeing a rigorous exploration of lower court clerkship application and hiring patterns.   

Notably, the law clerk hiring market has experienced interesting "shocks" in recent years — e.g., a major shift in the hiring timelines, a new on-line application system.  I keep hoping to see an analysis of how these developments might be changing who applies for and receives clerkships.   Is anyone out there working on these issues?

Posted by Douglas A. Berman on July 8, 2006 at 11:12 PM in Life of Law Schools | Permalink


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Political scientists Todd Peppers and Art Ward have recent books on exactly these topics. Chapter 2 of Peppers' book is especially good in presenting data on these questions.

Posted by: C. Zorn | Jul 11, 2006 11:25:31 AM

"Hiring from a broader cross-section of law schools would certain add to the experiential diversity of the clerk pool."

Probably not going to happen any time soon. People love to preach egalitarianism, except when it affects them personally.

Posted by: Bob | Jul 11, 2006 12:18:47 AM

The striking thing about the list to me is the lack of diversity among feeder law schools. (Yale, Yale, Harvard, Chicago, Yale, Yale, Harvard, Columbia, Yale, Yale, Harvard, Stanford . . .) The only justice to depart regularly from this pattern in recent years was the late Chief Justice Rehnquist. Justice Thomas' hiring has been more varied lately, and several of the other current justices branch out every once in a while by hiring one clerk from Notre Dame, BYU, Georgia, etc.

Hiring from a broader cross-section of law schools would certain add to the experiential diversity of the clerk pool. For what it is worth, though, I am agnostic about the claim that diversity of experiences improves clerks' performance and decidely skeptical about the claim that it influences the Court's performance.

Posted by: Nicole Garnett | Jul 10, 2006 9:26:29 PM

I and many (if not all) of my classmates received a survey from a group of professors (the only name I specifically recall is Christine Jolls) regarding the interviewing process in the fall of 04. I don't know what they are doing with the info though, or what the response rate was, or if they have sent the same survey to later classes.

Posted by: YLS 05 | Jul 10, 2006 9:12:53 AM


I would guess that about 10% of recent Supreme Court clerks have experience as district court clerks. You don't often hear about it, as most of them go from the district court to an appeals court before the Supreme Court. Also, a number of Supreme Court clerks have experience elsewhere in government before clerking. It's hard to guess the percentage; maybe 20%?

Posted by: Orin Kerr | Jul 9, 2006 9:24:46 PM

According to my judge, the government keeps records, but (IIRC) it only includes accepted offers and maybe applicants. It's also apparently not public information. The various law schools keep some records of interviews and offers, but at least at HLS the data is not gender-encoded and it's based on self-reporting.

Posted by: Amber | Jul 9, 2006 10:14:21 AM

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