After Affirmative Action | Crooked Media
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September 04, 2023
Strict Scrutiny
After Affirmative Action

In This Episode

Juvaria Khan, founder of The Appellate Project, joins Melissa, Kate, and Leah to catch up on the fallout of the Supreme Court’s affirmative action decision in June. Then, Melissa talks with Justice Goodwin Liu of Supreme Court of California and Mary Hoopes of Pepperdine’s Caruso School of Law about their research on how judges consider diversity when hiring clerks.

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TRANSCRIPT

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Show Intro Mister Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex all I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. And today we are bringing you a special episode focused on diversity in the legal profession. This is a rare two part episode. For the first part of the episode, we will be in conversation with returning guest Juvaria Khan, the founder of The Appellate Project. And we’re going to discuss with Juvaria the work that The Appellate Project is doing, especially in the wake of the court’s affirmative action decision this past June. So welcome back to the show, Juvaria.

 

Juvaria Khan Thank you so much for having me.

 

Leah Litman So can you remind our listeners or maybe tell our first time listeners for the first time what The Appellate Project is, what it does and we’ll ask you again later in the episode how to get involved. But, you know, feel free to mention that as well.

 

Juvaria Khan Absolutely. So at The Appellate Project, we believe our highest courts should reflect our communities. And to share a little bit about why we do the work we do. You all do an amazing job educating all of us on why the Supreme Court matters and why it’s so important who’s in those spaces. But the Supreme Court only hears 2% of the cases it receives, which means 98% of appellate decisions. Final rulings come from intermediary appellate courts and the federal and state level, which means the attorneys and judges in those spaces also wield enormous power. Appellate attorneys, as you often talk about, strategically, bring these cases, often years in the making, where they’re trying to shape how the law goes. They present the issues, they decide which issues and facts they’ll bring. And not infrequently, they end up becoming the judges or receiving other political appointments where they have great power to shape laws and policy from other branches of the government. And of course, appellate judges on the federal level have lifetime tenure where they’re shaping our laws and deciding what these laws mean and how they apply to all of us. And these are not abstract issues. It’s how we are policed, how we vote, how we access health care, any issue. There’s an appellate ruling that deals with it. And so who is in these spaces really matters. And the worst kept secret in the appellate bar is the extreme and continuing lack of diversity, particularly racial diversity, both on the attorney side and the judges. And this has real life consequences. Appellate cases often disproportionately impact communities of color. So you have a system where the communities most impacted are often the least represented. It erodes trust in these institutions, and it has a real impact on the law that is produced because the result is a very homogenous group of attorneys and judges, predominantly white male, and from the same very narrow elite networks and schools who are deciding issues that they often have no lived experience or connection with.

 

Leah Litman That’s a great explanation for the importance of focusing on diversity in the appellate world. When was The Appellate Project founded, and what are some of the initiatives that you all are doing right now?

 

Juvaria Khan Yes, So I’m a lawyer by background, and I really became cognizant of these issues when I started doing civil rights impact litigation. And, you know, seeing my clients basically get pummeled by the courts all the time. I was focusing on the Muslim community, which is very racially and socioeconomically diverse and never seeing anyone on the attorney or judge side who reflected any of them and knowing what the outcome of a case would be because of that was really demoralizing and for my clients, very dehumanizing. And it made me wonder why these issues keep happening. So I started The Appellate Project in 2019. I left litigating to create programing that targets students of color, particularly those who are first generation to become the next generation of appellate lawyers and judges. And we do that by providing innovative appellate resources that target the systemic barriers they too often face when it comes to trying to access the appellate field. Our flagship program is our mentorship program. In the past three years, we’ve had nearly 500 law students go through it. We provide them with mentors in the appellate bar, clerkship, resources, really helping them connect with judges, current law clerks, helping them with their clerkship applications. We provide a lot of networking and connections. Who, you know, in the space really matters. And our students are often outside of those insular networks where appellate connections are formed. We share job opportunities with them. We help develop their core appellate skills, such as legal writing through workshops and one on one writing coaching. Just sort of making them feel like they have the tools and the encouragement and a community of hundreds of people who really believe in them and want to see them succeed and know the value they bring at top. We do not believe in a colorblind society. We believe that our students should show up as their full, authentic selves because if they do our lives. Our system and our laws will be better for it. So it’s been incredible to see how many of them have already gotten really competitive appellate internships, clerkships, jobs and the domino effect that has already on their careers. They’re amazing. And now the right people are saying they’re amazing and are hiring them.

 

Melissa Murray So Juvaria, we did a same day episode not too long ago on the Supreme Court’s decision in Students for Fair Admissions versus Harvard. And we’ve seen even since that episode aired that that decision has had some pretty immediate fallout. And it may likely prompt things that we haven’t even begun to contemplate. So there’s probably more on the horizon still. But I wanted to just note two things that have happened at various universities and colleges around the country since the decision. So one is some colleges and universities have announced that they are ending legacy admissions. And of course, legacy admissions were not the subject of the lawsuit. It was only about race conscious admissions policies. But legacy admissions refers to the policy of giving the children of alumni of the school and maybe those who donate money or have some kind of relationship with the school, a preference in the admissions process. And a number of studies have made clear that legacy admissions, given the history of discrimination in education, as well as wealth disparities in this country, basically amount to a preference for white students. So one of the things that we’ve seen is some schools have voluntarily undertaken the stripping of legacy preferences and their admissions policies. And even more recently than that, we’ve seen a number of groups really press for investigations of schools that concurrently conduct legacy admissions. And the Biden administration has actually decided to launch an investigation into Harvard’s legacy admissions policy with the Department of Education. So lots of stuff happening in terms of legacy admissions. I do want to note there are a number of minorities who are arguing that ending legacy admissions at this moment when they are now only in a position to be able to pass on that legacy status to their children feels like a double whammy at this point. First, affirmative action, now ending legacy admissions. But that’s a huge place where people are trying to address some of the inequities that are endemic in the system of admissions. And Leah, you wanted to point out another really clear repercussion from the decision that’s also popping up throughout colleges and universities.

 

Leah Litman Yeah. And this is, you know, in an absolutely epic move, Sarah Lawrence College included an essay in their application inviting students to respond to Chief Justice Roberts opinion in Students for Fair Admissions, or at least passages of it. And I just think that’s incredible.

 

Kate Shaw Should we just read the grounds? Sarah Lawrence basically is like kind of daring the Supreme Court or maybe just asking the court if it is serious in the paragraph that it included near the end of the opinion in which it basically said admissions have to be race blind, but then said, but maybe essays are okay. So here’s what Sarah Lawrence admissions office came up with in a 2023 majority decision of the Supreme Court of the United States, Chief Justice Roberts wrote, quote, Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to equality of character or unique ability that the particular applicant can contribute to the university and quote, the prompt continues, drawing upon examples from your life, quality of your character, and or a unique ability you possess. Describe how you believe your goals for a college education might be impacted, influenced, or affected by the court’s decision.

 

Melissa Murray I mean President Crystal Collins Judd coming at them. Come at me, bro. Right?

 

Leah Litman This is the energy we need in the Democratic Party more broadly. In progressives, I just love it to me.

 

Melissa Murray We should also note, Juvaria, that on the other side, some groups and individuals have been so emboldened by the court’s decision and students for Fair Admissions that they are now attacking other ways of achieving diversity in the admissions pool or or even just the ability to talk about and acknowledge the importance of diversity. And we should also say that this is part of our concern with the Supreme Court changing the law in the directions. It’s changing it. You know, we saw in 303 Creative that now we are inviting reimagining law and society along lines that are more hostile to racial diversity and equity more broadly. But let’s just tick through some of the examples that Students for Fair Admissions has wrought. So Stephen Miller’s group, America First Legal, is recruiting white plaintiffs to challenge GEI policies in schools and in the workplace. And this was initially reported by Chris Geidner at Law Dork.

 

Leah Litman And Adbloom, the architect of the challenges to affirmative action, has started advertising to try and challenge affirmative action in military academies because the court in Students for Fair Admission did at least a temporary carve out of military academies from the ban on affirmative action. Because the new conservative legal movement’s last GOP strategy is fuck the military, that one goes out to youth Senator Tuberville.

 

Kate Shaw Adbloom has also been very busy devising. New lawsuits against private entities. So he has sued a venture capital fund that supports black women who own small businesses, accusing it of unlawful racial discrimination.

 

Leah Litman And one of Adbloom’s organizations sued two law firms, saying that the diversity fellowships the firms offered discriminated against white men. And one other example, touching on a theme that we’ll mention in a second. So last week, Justice Anita Earls, the only black woman on the North Carolina Supreme Court and the author of several important majority and dissenting opinions we’ve talked about on the show, filed a lawsuit in federal court against the North Carolina Judicial Standards Commission. The complaint alleges that the commission has been investigating Justice Earls and sending her inquiries because Justice Earls has been talking about diversity and specifically the lack of it on the North Carolina Supreme Court and around that court, among other things. You should sit down to read the complaint, which includes a picture that the conservative North Carolina justices apparently have up at the court that depicts all of the elected conservative appellate judges as the Justice League, the investigation and complaints against Justice Earl’s recall, the deeply unfair and wildly without basis complaints against another progressive state Supreme Court justice. Justice Jakosky on the Wisconsin Supreme Court Justice Cross had complaints filed against her because of comments she made at oral arguments in the 2020 election case seeking to throw out votes in Wisconsin. Justice Gorecki had said the suit smacks of racism because it challenged ballots in the two most diverse counties fact check true, and that the allegations of fraud were nothing short of shameful. Also true, These are deeply disheartening developments that we are going to be continuing to follow.

 

Kate Shaw So that’s a long list in just the, you know, half summer that has passed since this opinion came down. So to bring you back in Juvaria, in light of all this, two groups that are working to increase diversity feel like there’s a target on your back. Like how are you thinking about continuing to do this work in the wake of the court’s decision and some of the fallout from it?

 

Juvaria Khan Yes, I think the work is more important than ever. It also feels like there’s a giant foghorn going off all the time and just a feeling of what’s next and what impact will it have. I think anybody trying to do this work right now is both trying to respond to the moment and what they’re their students in my case, need, but also protecting ourselves and not knowing when the other shoe is going to drop and how we’ll be attacked for just trying to level the playing field. And one of the cases you mentioned, Kate, by Adbloom about going after D.C. funding for black women, I mean, I think I just want to I just want to underscore that case, because Crunchbase reported that black women startup founders received less than 1% of VC funding in the United States. And even after George Floyd’s murder, when all these funders came forward saying, We really want to support black entrepreneurs and black business owners, that number decreased in 2022. So that’s who you are concentrating your resources in going after because it’s racist to try and help support them. I think there’s just such a anger that I feel and I imagine many who do this type of work feel at how far are we going to go with this sort of farcical reality before you have to be real about the situation and how unfairly the deck is stacked against certain communities. It’s very, very hard to see the victim card being played in that way, and I certainly feel it with the work at The Appellate Project and, you know, concerns about will our funding change, Will people pull out, will people still want to support us, will be targeted? I think everyone is feeling that for sure.

 

Leah Litman You mentioned the kind of construction of a farcical reality, and I think part of that is an additional attack or front we are seeing in the post Students for Fair admissions world, and that is attacks on efforts to even talk about diversity. And so one example of that is at the end of July, as the latest Wisconsin Supreme Court term was drawing to a close before the court turned over to a new progressive majority. The previous conservative majority rejected a petition from the state bar to provide clear continuing legal education credit for category of classes related to diversity, equity and inclusion. And, you know, we’ve talked about some of the special snowflakes on the Wisconsin Supreme Court before, like the ones that would have thrown out, you know, thousands of ballots from Milwaukee in the 2020 election under the guise of just asking some questions while in judicial robes or, you know, declaring ballot drop boxes illegal while likening the 2020 election to elections in Iraq, North Korea, Syria and more. And we have another entry into this canon in this case, where Justice Rebecca Bradley wrote an opinion explaining her decision to reject this petition. It opens with a footnote that amounts to like, debate me, bro, criticizing the dissenters for not engaging with her. She uses the court’s affirmative action decision to question efforts to talk about diversity like these DEI classes and then says that creating a DEI CLE credit is a first step to creating. And I’m just going to quote this here a goose stepping brigade of attorneys to enforce DEA efforts, you know, quickly escalating to Nazi analogies. It cites Ben Shapiro’s piece, how to debate Leftists and destroy them, as well as some Heritage Foundation programing. And the same Rebecca Bradley has been having some real meltdowns on Twitter ever since Justice Janet took her seat on the progressive majority. She’s also been editing her Wikipedia page and like, these are literally going to be the future of Republican nominations in future administrations. And this is where they are taking the law. And so like when people express concern about students for fair admissions, like it is partially about what it has emboldened and the next frontier it has opened up.

 

Melissa Murray And along similar lines Juvaria, Christopher Rufo, who has been a very vocal proponent of attacks on critical race theory and attacks on the prospect of discussing the existence of LGBTQ people in schools. Just had an op ed in the New York Times that was titled DEI Programs are Getting In The Way Of A Liberal Education. So there’s a lot going on here. It’s a big clusterfuck, I guess is the right word. Is that the word?

 

Leah Litman Yeah, it’s a legal term.

 

Melissa Murray Like res ipsa loquitur clusterfuck.

 

Juvaria Khan Yeah. And I’m always just so interested in the psychology behind that. What makes someone react that strongly and feel so threatened by these types of things? How much of an echo chamber they must be living in? And going back to the Wisconsin case you mentioned earlier, I mean, this sort of underscores why it’s so important who’s in the room. It’s a lot harder to make really inflammatory decisions. You know, the language that you cited, that’s pretty provocative way of framing your position when people of color are in the room, and especially when you have a multitude of diversity in the room, It’s kind of like, say it to my face. Really? You really want to say that to me? You cannot deny someone’s lived experience. And so I think as we have more diversity in spaces, that it’s a threat to these folks and they know it. And to me, it feels very much the last gasp of air trying to be an optimist here, because the reality is we are going to be majority minority very soon. People of color are already here. We’re not going anywhere. And so they can spin this however they want. But the reality is the reality.

 

Kate Shaw Yeah, I think that’s a very good take on some of the sor of data points that we just identified as this sort of last gasp. And I think you’re right, that’s an optimistic but I think hopefully correct prediction and assessment, which is a kind of white conservative grievance machine that has like ramped up to whatever the highest level is in response to kind of changing demographic realities.

 

Leah Litman Ginni. That’s what we call the highest level. Ginni. Zero to Ginni.

 

Kate Shaw It’s gone zero to Ginni. So I think that’s the best way to understand, like this summer in our kind of national life. Okay, so the backlash is happening for people who want to ensure that all of that is a last gasp, who do want to live in a multiracial democracy, who do not want a white patriarchy, who want the law to help facilitate the project of multiracial democracy rather than to help bring it to an end. Let’s get practical. So what can be done? And specifically, what is The Appellate Project doing and what can our listeners roll up their sleeves and get to work doing to make sure that that comes about?

 

Juvaria Khan Yeah, I would say three things come to mind. First is keep going, keep fighting. This is just the most recent iteration of a long struggle, and change only happens when we continue. So as a demoralizing as this moment might feel, keep pushing. And like I said, reality is reality. We are not in a colorblind world, and wherever lane you’re in, don’t give up what you’re doing. I would say. Second, it’s more critical than ever to support organizations who are trying to do this work, whether it’s The Appellate Project or others. We certainly are not going anywhere. We are you know, this only emboldens us to continue the work that we’re doing. But we are under attack now more than ever. So really, you know, whether it is donating or signing up as a volunteer or if you’re a law student, you know, pushing yourself to try and be in these spaces, it is not easy. I’m not trying to diminish what that challenge feels like, but, you know, keep going and support those doing the work. And then I think the third and sort of big picture thing is really a cultural shift that needs to happen. And it relates that I’ll say specifically to the lawyers in the room, this all relates it’s part of the same conversation of the attacks on what history is taught in schools, which books are being banned. We as lawyers need to educate ourselves on history and how it impacts the present history. Learning that. Educates us on the legal institutions that are still what we practice in the law that we currently litigate. It didn’t just fall from the sky. It’s the people who are in power in those stages and now who get to shape it. And so really understanding that history means that when we are in those spaces, we can make more informed and just decisions. I think that that often gets lost in the conversation in the legal field when it comes to diversity, especially racial diversity and why it’s so important. And that is something I would just like. My dream would be if there is a legal doctrine where when you make a ruling, you also have to discuss the impact it’s going to have on the marginalized groups that is disproportionately affected by it. I think more people in the room who are talking about these issues will ultimately move the needle. My parents are Pakistani. I am South Asian. There is a lot of ideological diversity within this community, which I find very you know, obviously, you look at the decision that we’re talking about, but I think it’s incumbent on me as the daughter of immigrants and communities of color, especially immigrant communities, to understand the history of this country and how many rights we have that are based on struggles that black communities, indigenous communities, communities that came before us went through so that we able to do what we do now. You know, learning about the Civil Rights Act, learning about its influence on the Immigration Naturalization Act, and how that allowed my parents to come and what our reality was like versus many of my friends who come from different backgrounds. I think that is that is incumbent on all of us, regardless of if you are white or a person of color, to to kind of go on that ongoing journey. And that is a cultural shift I really hope starts to happen. And again, being an optimist perhaps, is the silver lining from the affirmative action ruling in that let’s have more nuanced conversations about race and class and who’s benefiting and who’s not and why.

 

Kate Shaw I think that’s a great place to leave it. Juvaria, thank you so much for joining us and for the work that you were doing. For people who want to support The Appellate Project or law students who want to join, where should they go to learn more?

 

Juvaria Khan Check us out online. We’re at The Appellate Project board. You can find us on Twitter at Appellate Proj. We’re also on LinkedIn. Our next mentorship program application will be opening in September. So if you’re a student, definitely check it out. If you want to volunteer, you’re a judge or attorney or law clerk. We would love to work with you. The sign up forms on the website. Please sign up to our listserv for the latest updates. And if you are in a position to support, whether as a donor or a law firm that really truly keeps our programing cost free and allows us to do it, we are able to do.

 

Melissa Murray Thank you, Juvaria. That was really fantastic and we really appreciate you reminding us about the great work that The Appellate Project is doing and continues to do.

 

Juvaria Khan Thank you so much for having me.

 

Melissa Murray For those of you in the audience who are thinking about clerking, well, guess what? We have a great segment coming up with an associate justice of the California Supreme Court, Goodwin Liu and his coauthor, Professor Mary Hoopes, on the nuts and bolts of clerkship hiring, including the surprising ways that diversity may shape the way clerkship hiring actually works.

 

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Melissa Murray We know that many of our listeners have lots of questions about the mechanics of applying for a clerkship. We’ve been fielding lots of questions about how judges go about selecting their clerks, and since we are not judges, we really didn’t know what to tell you. So we decided to go straight to a source. Our guests today are the perfect duo to help us sort out this question. Joining us are the Honorable Goodwin Liu, an associate justice of the California Supreme Court and my former colleague at Berkeley law, as well as Professor Mary Hoopes, an associate professor of law at Pepperdine’s Caruso School of Law and the co-director of their William Matthew Burns Junior Judicial Clerkship Institute. Justice Liu and Professor Hoopes are the coauthors with former federal Judge Jeremy Fogel of a qualitative study of federal judges and their methods for selecting clerks. The study will be published in a forthcoming issue of the Harvard Law Review. So welcome Justice Liu and Professor Hoopes.

 

Goodwin Liu Thank you for having us.

 

Mary Hoopes Thank you so much.

 

Melissa Murray Just to get us started, can you tell us a little bit about the study? What prompted you to do the study and what were the methods and empirical parameters that you used in collecting these data?

 

Mary Hoopes We approached this from this idea that on the one hand, clerkships are highly coveted. They play this really important role in the legal profession, and yet they also operate behind this black box. And then we have this particular interest in diversity. We had a limited set of data, but they all pointed to a lack of diversity among federal law clerks in things like race, gender, the law schools and unattended and thus socioeconomic status. And so we wanted to take a qualitative approach and to interview judges in particular, because in focus groups, judges talked about how surveys were really not the way to get a deep and rich understanding of how judges did this and that they would feel comfortable talking to their peers, to people like Judge Fogel and Justice Liu, who really understood the unique demands of their job.

 

Melissa Murray Can I touch on that a little bit? Throughout the study, you note that the data that you received were so rich, in part because there was a kind of trust that existed between your subjects and at least two of you who are also judges. I’ve asked plenty of judges what their criteria are for selecting clerks, and I get a lot of anodyne responses. You got much richer information than any of us could. What is that relationship between judges like sort of a brethren, if you will, that allowed them to be so forthcoming with you?

 

Goodwin Liu I guess that’s probably all the secret handshakes that that they teach us.

 

Melissa Murray Do you all have bat phones where you call each other up? And is that what’s going on?

 

Goodwin Liu No, I think what you what you say, Melissa, rings so true. Which is that it’s a very small group of people and it’s a very in some ways insular group of people.

 

Melissa Murray One of the things that you discuss at length in the study is how much so many of your subjects prioritize diversity, at least as a first principle. But you also found in your discussions with them that despite their interest in promoting racial and ethnic diversity amongst the ranks of clerks, they actually weren’t that successful in diversifying their own chambers. So what’s the mismatch here between aspiration and practice?

 

Goodwin Liu The single most important factor I would say that we found was that most of the judges, however they define diversity, did not get what they want unless they actively took steps to go get it. In other words, waiting for the applicant pool to materialize and then hoping to find what you want in the applicant pool through the selection process is not a very surefire formula for getting the diversity that one wants. You have to actually go out and do affirmative outreach. Shape your applicant pool, make it known what your preferences are, and then you’re more likely to get what you want.

 

Melissa Murray And there’s a particular group of judges who are especially active in going and getting it. So you note in the study that the African-American judges not only talk about diversity and prioritize this in their hiring, they’re actually taking affirmative steps to make outreach efforts to African-American students, in some cases students of color more generally. And they’re actually being quite successful in recruiting a diverse chambers on, by your estimation, the black judges who comprise less than one eighth of the active circuit judges in place. During the time you feel that your study accounted for more than half of the black clerks hired each year on the courts of appeals. And that is just a staggering, staggering statistic. Like, they are responsible. They’re such a minority of the overall pool of circuit court judges, but they’re responsible for roughly 50% of African-American clerks. So what are they doing? And. How can other judges emulated and why haven’t other judges emulated it?

 

Mary Hoopes As one judge put it, being out and about making sure to visit a broad range of law schools, to go to dinners, to sit down and talk to students. And they had identified clerks that way at balls, dinners, for example. And so the outreach efforts were an important part and then also a willingness to depart from the conventional criteria of only looking at elite law schools and students at the very top of their classes. A lot of these judges said things like, I’m just not convinced that every person who’s capable of doing high quality work at a circuit court happened to end up at the top of their class at four or five law schools.

 

Melissa Murray There’s also this very stunning quote that one of the black judges made in your conversations with the judges. So one of them noted that black judges are sometimes made to feel that, quote, You don’t belong because you’re not as good. And if that’s the mindset with regard to one’s colleagues, how can it be anything else with regard to whom you’re hiring, end quote. And that, to me, was just so striking. Like, you know, part of this feels personal for the black judges, like they themselves may not have come from elite educational circumstances, So they don’t necessarily prioritize it in their hiring of clerks. But more importantly, they’ve perhaps been underestimated in their own professional environments and they’re not willing to do it with regard to the students that they think about or consider for these placements, how does that translate? I mean, that seems like such a specific kind of experience if you’re trying to figure out what are best practices here. How much of this is really about one’s personal experience as opposed to something that you can replicate across the board?

 

Goodwin Liu It is true that several of the black judges, you know, said that what we are doing in our clerk hiring is kind of like an existence proof. You know, we’re showing that diversity and excellence are not at odds with one another at all. And in fact, they are mutually interdependent. And as one judge said, you know, in one of his quotes, I’m trying to send a message that when you see my clerks, they’re doing every bit as good work as everyone else’s in this court. And I want others to know that the work is getting done and it’s being done by these people. In our sample of 50 judges. There were some 21 of whom who did not attend a top 20 school. And among that group, almost three quarters of them had at least 25% of their clerks come from not top 20 schools, compared to only a third of the judges who did attend the top 20 schools. So there’s very there’s a lot of autobiography going on there, I think, because freeing oneself from, you know, the grip of just the top five or top ten schools really enlarges your pool. But over and over again, when we spoke to judges who had gone to those schools, there was a general reluctance to go beyond and they described it as risk taking. And one note about that is that we were very interested to find out, you know, what kinds of risks people felt like they were actually taking. So we would ask them whether any clerks didn’t work out. And, you know, in the in the broad run of hiring, if you’ve hired, you know, several dozen clerks and these judges were very experienced. They had an average tenure of 14 years. Each one of them had a lot of experience in this pool. Everyone has had clerks who didn’t quite work out for one reason or another. And we asked them why. And we found almost no evidence that the school attended or the grades that a a candidate had figured at all into the reasons why a particular clerk didn’t work out. Usually it had much more to do with things like professionalism, personality, clashes, maturity, these these kinds of professionalism, qualities.

 

Melissa Murray So that’s so interesting. So it weighs so heavily on them on the front end as they’re thinking about who’s going to comprise the pool from which they’ll pick. But in terms of, you know, who works out, it really just comes down to is this person a jerk or not?

 

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Melissa Murray One place where the judges have actually been really great about prioritizing diversity and seeing actual results is in the area of gender. So the judges were very open in your study about their desire and their success in achieving gender balance among their clerks. So, you know, they talk about this openly. There are some very famous models. Justice Kavanaugh famously had the first all female class of clerks at the Supreme Court, and most chambers have a sort of even complement of male and female clerks going through the years. So gender balance is something they’ve been able to achieve pretty easily. Why has gender been so much easier to solve for than race or ethnicity or even school diversity?

 

Goodwin Liu Yeah, that’s a that’s a really interesting observation. And I think we were even a little surprised at how forthright the judges were in just kind of baldly stating, you know several of them just said.

 

Melissa Murray We love affirmative action for women.

 

Goodwin Liu They’re like, you know, I always hire two and two or I never have my chambers go without at least one of a different gender. So they were very intentional about it and very aware of the numbers, you know, as it were. And I think that if I may put a slightly more nuanced perspective on the gender, it wasn’t completely uniform, though. I think that the Democratic appointees reported a lot of ease in terms of finding lots of women applicants. But the Republican appointees reported more difficulty and they had some choice quotes.

 

Melissa Murray Would love to see these numbers post-June 2022, did they go down? Did they go up for the Republican appointee?

 

Goodwin Liu That’s outside the bounds of our study, although one of the judges did say that, you know, one Republican appointee did say, you know, it’s hard to hire women because, you know, there’s not a lot in the current Republican Party that’s very appealing to women right now. And he just said that flat out. That’s a that’s a that’s a paraphrase of a quote. So they were very honest about it and aware actually of of these dynamics and wanted to do their best, you know, by gender. Why is it more difficult to talk about race? I don’t know. I think that, you know, a lot of it has to do with the framing. And I think unmistakably there is among a very significant group of the judges we spoke to some notion that seeking racial diversity involves affirmative action, understood as lowering standards or taking risks. And what was so interesting, of course, was that the black judges, many of whom had had great success hiring black clerks, completely rejected that framing. They, in very forceful language said, I’m not engaged in any kind of affirmative action whatsoever. I’m looking for the best people. And this is how I go about finding the best people as I look in lots of different places, because I don’t think there’s any monopoly on talent. There may be a monopoly on opportunity, you know, based on where people kind of get their opportunity. But you have to look at where people can find opportunity and see what they made of it.

 

Melissa Murray We should also address the elephant and elephant issues purposefully here. The elephant in the room, which is to say the Trump administration managed to completely reshape the federal judiciary in just four short years. But the Trump appointees weren’t necessarily included in your study because of the parameters you had for judges being on the bench for some length of time before you could actually speak to them. So you didn’t really have a chance to talk to the Trump appointees. Did you talk to any of them informally outside of the study? And how are they selecting their clerks? Are they using similar criteria or are they preferencing ideology more heavily than the judges who are in your survey? What’s going on with them, if you can speak to it?

 

Goodwin Liu We undertook this study in 2020, started in 2020. Our sample parameters were that we wanted judges who had had at least three years of hiring experience and that excluded, unfortunately, most of the Trump judges, although we did have three in our sample. And so we don’t have any Trump judges and we also don’t have any Biden judges. And actually the Trump judges and Biden judges look extremely different realistically. Yeah. So it’s it’s a little bit unfortunate. I mean, there’s a time lag, of course, in terms of doing a study and writing it up. So we’re missing some of the newer judges or many of the newer judges. The first thing to realize is that most law students, especially at the top schools, trend liberal, and that’s based on political science studies, believe it or not, based on these people’s campaign donations, which are public information. So when you look at the overall pool, you’re looking at a predominantly liberal pool. Now, it turns out that in our sample, which was heavily weighted towards having minority judges because. We oversampled them. We ended up with about two thirds Democratic appointees and one third Republican appointees. And among the Democrats, basically what they see out there is a bunch of applicants who are already self-selected. They are liberal. And so when they say I don’t use an ideological screen, I think they’re dead serious. They don’t have any.

 

Melissa Murray But they don’t have to.

 

Goodwin Liu They don’t need to if that’s what they want to get. And they don’t even have to indicate a preference as to what they want to get, because that’s what appears before them. Where are all the conservative students applying? Well, that’s a part that’s a little bit missing and perhaps inferential in our study, which is that we know from our own experiences and in discussions with colleagues that a lot of the conservative students and judges match and do their hiring off plan, which is to say they’d go earlier than the end of the second year. And we heard from several of the judges that by the time that, you know, if you’re an on plan hiring judge, by the time you try to hire on plan, there are very few conservative students on the market. Now, this is also I’ll just say it’s aided by what people observe at the US Supreme Court, which is that in most in the most recent decades, there has been a strong tendency towards ideological alignment. And among the feeder judges whom we spoke to of of whom there were six, who met our definition in our pool. You know, a couple of them basically said, Oh, yeah, that ship has sailed. I cannot hire if I’m a Republican appointee, I cannot hire a liberal clerk because a liberal clerk who wants to clerked for me as a feeder judge is not going to get to the Supreme Court through me because a conservative justice isn’t going to hire a liberal clerk from me. And a liberal justice isn’t going to hire a liberal across from me. So, yeah, so unless people are kind of lockstep aligned all the way up. In that case, I think a fairly significant shadow over the clerkship process.

 

Melissa Murray Can we talk a little bit about the numbers and maybe again, this is rank speculation on my part, but I am actually really interested in what the dynamics of the new administration’s judges will mean for all of this, and particularly of the Trump appointees. You know, as you say, there’s a glut in the market of liberal students and a scarcity of conservative students. And then you may have conservative judges who go ahead of the plan. And, you know, there aren’t a lot of options left. Does not mean that for those conservative judges who aren’t part of that early off plan hiring, do they have to dig deep in the pool of conservative students and maybe go outside of the traditional band of top ten schools or even below the sort of classic markers of academic excellence in order to hire conservative students? I mean, are they basically going to get it in the way that African-American judges are going to get students of color when they hire?

 

Goodwin Liu I think we could only speculate on that because we didn’t actually answer that in our study. It’s a fascinating hypothesis, actually, but I’ll just qualify it by saying that the best data that we have is this is from a database that Adam Bonica, a political scientist at Stanford and others have assembled. Is that to the extent there is cross ideological hiring, the predominance of it is actually Republican appointees hiring liberal clerks because of the glut. Right?

 

Melissa Murray Have you all heard the term nepo-baby?

 

Goodwin Liu No.

 

Melissa Murray This is so on brand good way. I mean, it’s like I’m going to tell you something from pop culture. So a nepo-baby refers to someone who is the scion of very famous people. So a nepo-baby, for our purposes, would be someone who has benefited from their parents fame or their parents career in launching their own career. And, you know, in the law, you know, a nepo-baby might be someone who is the son or daughter of very famous lawyers. Right. You know, so if Chelsea Clinton were to be a prospective clerk applicant, she might be considered a nepo-baby for this purpose. My students are always so surprised when they see the list of Supreme Court clerks, like how many famous last names there are there that many of the people who are currently clerking for the court are the children of former clerks or the children of famous law professors or the children of judges. If you’re not the son or daughter of someone famous, if you’re just, you know, sort of Joe Schmo from Montana, how do you get into this network when so much of the field seems to be occupied by these many times deserving but still nepo-babies?

 

Goodwin Liu Well, I would just note the interesting confluence of our study with another study that was published by Mitu Gulati, Albert Yoon, and Tracy George. It’s actually out there right now in SSRN which looked at undergraduate institutions of Supreme Court clerk. And I don’t even talk about law school anymore. But but where people went to college and I think they’re finding was that, you know, attending three particular colleges and you can guess which ones they are had some disproportionate influence you know, on regardless of where you went to law school, actually. But those colleges, you know, ended up being, you know, kind of pathways to the Supreme Court. So when you say where do you go to get the pedigree? I think like, you know, the the tip of the spear is like very, very sharp. But, you know, these I think that just reflects certain kind of societal perceptions, which are now, you know, it seems quite entrenched in Supreme Court hiring practices based on the data that, you know, people have unearthed. Interestingly, I would just note there is an exception to that, which is Justice Thomas, who has hired quite widely in terms of the range of schools that he’s willing to consider. And but he stands out, you know, I think among the current nine in terms of that, I think what we heard from the judges in our sample is that they, especially the ones who did not attend an elite law school, they said, you know, look, I can think of any number of reasons why people don’t end up going, you know, to an elite school that don’t have much to do with the person’s talent.

 

Mary Hoopes One of the minority judges, for example, related this practice directly to this this need to broaden criteria and this idea of adherence to their their comfort zone and said, you know, I can’t tell you how many kids of colleagues or fellow judges I’ve been asked to hire that may not have met the traditional criteria. And if judges are comfortable with that practice and willing to do it, then how can they not be comfortable looking outside these criteria for other reasons that are possibly more justified?

 

Melissa Murray Thank you so much for taking the time. Justice Liu and Professor Hoopes to join us today. This study is absolutely fascinating. It is called Law Clerk Selection and Diversity: Insights from 50 Sitting Judges of the Federal Courts of Appeal. And it is forthcoming in the Harvard Law Review, although you can read it now and download it while it’s hot on SSRN and we encourage you to do so. Thanks so much for coming to Strict Scrutiny.

 

Goodwin Liu Thanks for having us.

 

Mary Hoopes Thanks for having us.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Kate Shaw, and me, Melissa Murray. It’s produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin and Music by Eddie Cooper with production support from Michael Martinez, Ashley Mizuho and Ari Schwartz. With digital support from Amelia Montooth.

 

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