Some Thoughts on Elite-Law-School Bias in Clerkship Hiring

The Washington Submit simply had an enormous article on October 30 about racial and gender variety amongst Supreme Court docket clerks, and adopted it up with a smaller piece on November 1 about elite law-school hiring patterns for Supreme Court docket clerks. Since that second article quoted me on elite law-school benefit (and I take advantage of “elite” as a shorthand to discuss with Harvard, Yale, and extra typically any regulation college in U.S. Information’s High 14 (T14)), I assumed I’d elaborate on my views, as a result of one’s full views are invariably extra advanced than what you get from studying a three-sentence soundbite.

When speaking about clerk hiring, a couple of questions could be attention-grabbing: (1) Is there an elite-school hiring sample for federal clerks on the highest stage? (2) If sure, is that elite-school hiring sample justifiable? (3) If the reply to (1) is sure, can regulation college students at non-elite colleges nonetheless get good clerkships? (4) If the solutions to (1) and (2) are sure, and if I am a professor at a non-elite college, am I a reliable regulation clerk advisor and recommender? Keep tuned for my 4 solutions: sure, sure, sure, and sure! Particularly:

1. Sure, for U.S. Supreme Court docket clerks; a lot much less so for different clerkships.
2. Sure, it is a not unreasonable desire for U.S. Supreme Court docket Justices who’re busy and need to make selections primarily based on very incomplete info; I’d properly do the identical if I have been a Supreme Court docket Justice.
3. Sure: even on the U.S. Supreme Court docket, college students from non-elite regulation colleges can get clerkships, and there are such a lot of positions at courts that aren’t the U.S. Supreme Court docket that many college students from good-but-not-elite regulation colleges can get glorious clerkships.
4. Sure: what a hypothetical me would do in a hypothetical scenario if I had a special set of priorities has no bearing, both logically or in apply, on my willingness that can assist you, my precise college students in the actual world, get glorious clerkships.

1. Is there an elite-school hiring sample for Supreme Court docket clerks?

The quick reply: Sure. The longer reply: Clearly sure, on the U.S. Supreme Court docket stage. On the threat of belaboring the apparent, let’s take a look at some numbers, helpfully facilitated by Wikipedia’s Supreme Court docket regulation clerks pages (which additionally comprise the identities of some future clerks, to the extent these are recognized to Wikipedia editors):

• Chief Justice Roberts: 74 clerks since 2005 — 47 are from Harvard/Yale; all however 5 are from the T14.
• Justice Kavanaugh: 28 clerks since 2018 — 17 are from Harvard/Yale; all however 2 are from the T14.
• Justice Jackson: too quickly to inform a lot, however her first 4 clerks are from Michigan, Stanford, and Harvard (i.e., none from exterior the T14).
• Justice Sotomayor: 61 clerks since 2009 — 30 are from Harvard/Yale; all however 5 are from the T14.
• Justice Kagan: 58 clerks since 2010 — 40 are from Harvard/Yale; none are from exterior the T14.
• Justice Barrett: 14 clerks since 2020 — 2 are from Harvard (none from Yale); all however 3 are from the T14.
• Justice Alito: 77 clerks since 2006 — 36 are from Harvard/Yale; all however 14 are from the T14.
• Justice Gorsuch: 37 clerks since 2017 — 13 are from Harvard/Yale; all however 4 are from the T14.
• Justice Thomas: 139 clerks since 1991 — 46 are from Harvard/Yale; all however 30 are from the T14.

The massive outliers are Thomas and Alito, every of whom have employed 20% of their regulation clerks from exterior the T14, and (with a lot much less knowledge) Barrett and Gorsuch. (It could be attention-grabbing to look into how a lot of this stems from these Justices’ personal preferences and the way a lot stems from the hiring patterns of the judges who’ve fed to these Justices. I am certain somebody on the market has higher knowledgeable views on this than I do.)

It could be an exaggeration to say that the Justices rent solely from elite regulation colleges, however I believe it is clear that coming from Harvard or Yale (or the T14 extra typically) provides you an enormous leg up, and that of two college students with equal resumes and grades (or class ranks) and recommenders, the one from Harvard/Yale/T14 is way, more likely to get employed than the one from a regulation college like mine, which (within the 13+ years I have been instructing right here) has hovered between #19 and #30 within the U.S. Information rankings. Certainly, I’ve had numerous prestigious federal judges (together with, if I bear in mind appropriately, at the very least one Supreme Court docket Justice) admit to me very candidly that they’ve extraordinarily sturdy top-law-school hiring preferences. It makes me unhappy as a result of that disadvantages my very own college students, however it’s what it’s.

In fact that is a lot much less true on the non-U.S. Supreme Court docket stage. The explanations for this are fairly apparent. There are much more federal circuit judges (179 licensed positions, plus senior standing judges, minus vacancies) and so much lot extra federal district judges (677 licensed), to not point out chapter judges, Justice of the Peace judges, administrative regulation judges, and so on., and the massive variety of state Supreme Court docket and different state judges (not all of those have regulation clerks, however many do).

Lots of these judges haven’t got sturdy elite-school preferences, and in reality it isn’t unusual to discover a decide who has a robust desire for college kids from the highest native colleges or who’ve a desire in working towards within the space, as a result of they need to help the native bar. Lots of these judges have loyalty to their very own college or have had good previous experiences with clerks from a selected college or have a very good relationship with sure recommending professors. There are many good clerkships to go round, particularly should you’re from a high-quality (however not elite) college, and particularly when you think about that not everybody from the elite colleges even needs to be a regulation clerk.

2. Is that this Supreme Court docket elite-school hiring sample justifiable?

It is modern to bash the U.S. Information rankings. And what, that is right — the U.S. Information rankings aren’t superb. For instance, the rating consists of metrics just like the status of the college amongst regulation professors, regulation college directors, attorneys, and judges. That implies that, hypothetically, Yale may go down the tubes as we speak however nonetheless spend a few years coasting on the status it might retain amongst individuals whose picture of Yale was shaped in earlier occasions. And that is even assuming individuals really feel some must reply these surveys truthfully, quite than (within the case of regulation college professors or directors) observe a rule like “rank my very own college and my associates’ colleges first, and rank my competitor colleges final”. I am certain there are many different critiques, however I am simply itemizing the one that stands out probably the most in my head.

So, if we’re satisfied that U.S. Information rankings are unhealthy, ought to we ignore a regulation college’s rating when hiring somebody (whether or not for internships, clerkships, regulation agency jobs, or no matter)? I do not assume so. Suppose I introduced a very arbitrary rating — actually randomly generated. If, for some purpose, individuals believed the rating (which they do, within the case of U.S. Information), and if the rating have been secure sufficient over time (U.S. Information’s T14 has been very secure), then the highest college students from the highest schools would are likely to go to the highest regulation colleges, and the highest regulation professors would step by step gravitate towards the highest regulation colleges. Over time, this arbitrary rating would turn into actuality — a self-fulfilling prophecy.

So should you have a look at an A scholar at Harvard and an A scholar at a lower-down college — extra rigorously, as an example that should you have a look at a Harvard scholar and a lower-down-school scholar with an identical credentials on paper, together with an identical grades or class ranks, identical-sounding suggestions, and so on. — the Harvard A scholar is prone to be a greater clerkship rent.

What do I imply by “higher”? I imply the usual traits that judges worth in clerks: higher in a position to learn and perceive numerous advanced regulation stuff, higher in a position to write clearly and persuasively, and so on. Clearly this doesn’t suggest each regulation scholar at Harvard is best than each regulation scholar additional down (together with at Emory): I’ve seen Harvard college students (as a scholar myself), and I’ve seen college students at Georgetown, Houston, and Emory (as a professor), and I do know that is clearly not the case. Faculties use varied components of their admission selections that are not the identical as what judges would worth; a scholar’s capacity might not be evident of their uncooked numbers or verifiable info, and may solely present up once they truly begin taking regulation courses at no matter college they obtained into; college students make their selections for a lot of causes aside from rankings, like private connections, geographic desire, or who provides them more cash. Because of this, the Harvard distribution and the Emory distribution overlap considerably: I’ve had Emory college students who would have been very aggressive at Harvard, and I’ve recognized some Harvard college students who weren’t superb.

Given all that, what ought to a hiring decide do, who’s busy, has an enormous pile of resumes to undergo, and has very restricted info? Is there sufficient of a correlation between regulation college rating and sure clerkship high quality that judges ought to use the regulation college rating as a robust issue of their decisionmaking?

I believe there may be. A day of interviews can solely let you know a lot, and letters of advice are normally puffery. However one’s LSAT rating has some correlation with one’s capacity, and one’s undergrad school has some correlation with one’s capacity, so moving into Harvard has some correlation with one’s capacity. And if somebody is an A scholar at Harvard, that tells you that they have been close to the highest of their class in about two dozen courses the place they have been competing with their different Harvard-accepted friends; and in the event that they have been additionally on Legislation Evaluate, that tells you that they beat out a lot of their Harvard-accepted friends on the Legislation Evaluate competitors.

There’s numerous arbitrariness in any particular person Harvard admission choice, and numerous arbitrariness in the way you do in any given regulation course, and numerous arbitrariness in whether or not you make Legislation Evaluate, but when somebody has performed all that towards a pool of different Harvard Legislation college students, that usually tells you greater than interviews and suggestions. Put all these correlations collectively, and you are still left with a correlation; and utilizing that correlation, along with the opposite private components you have noticed a couple of candidate, to make selections will save choice prices should you’re a busy individual. Heck, if I have been a Supreme Court docket Justice (which might by no means, ever occur), my hiring practices would in all probability be closely weighted towards these prime regulation colleges. I do not assume it is sensible to pay a lot consideration to small variations in rankings, particularly if these variations are inside the vary of year-to-year variation (e.g., Harvard vs. Stanford, or Emory vs. GW), however massive variations are in all probability significant.

Does that imply that Justices like Alito and Thomas are fallacious in being as non-elite as they’re? Not essentially. First, 80% of their clerks are nonetheless from the T14. Subsequent, completely different individuals can validly have completely different views about high quality variations between completely different colleges. Subsequent, some individuals have sturdy views towards some colleges, which redounds at the very least barely to the advantage of everybody else. (Witness the handful of judges who’ve just lately determined to not rent from Yale — I truly do assume it is fallacious to boycott Yale as retaliation for Yale’s unhealthy free-speech insurance policies, but when it advantages my college students, I will take it.) Subsequent (to repeat what I stated above), some Justices have good relationships with sure professors and know from previous expertise that their suggestions are reliable. Subsequent, some Justices could equally belief their feeder judges, and the feeder judges could have some purpose or different for trusting a selected non-elite candidate.

There are all types of the explanation why, even with a thumb on the size in favor of elite regulation colleges, you’d nonetheless rent some variety of college students from elsewhere. I would like Supreme Court docket Justices to be even much less elite-school-hiring than they at present are, as a result of that might assist my college students. However I can hardly blame these Justices whose non-elite numbers are very low, and it is fairly potential that I’d be a kind of should you put me in that place — particularly contemplating that there are solely about three dozen Supreme Court docket clerkships accessible yearly, and even should you solely checked out graduating college students who had been on Harvard Legislation Evaluate and Yale Legislation Journal, you’d have already got greater than twice that quantity. (And keep in mind that all these components that might make a decide select a scholar from an elite college play a a lot smaller position when you’re under the U.S. Supreme Court docket stage.)

3. Given all this elite-school hiring bias, how can I probably get a very good clerkship if I am from a non-elite college?

This query might be on the prime of the minds of many college students, together with my very own, so right here goes.

As you have already learn above, the intense elite-law-school hiring bias is a U.S. Supreme Court docket phenomenon. And even there, it’s very possible for non-elite-school college students to get employed, particularly by the Justices with the least elitist hiring practices. When you get under the U.S. Supreme Court docket stage — I am repeating myself once more — these elite-law-school biases are typically a lot much less related, and generally candidates from sturdy native colleges may even have a bonus, whether or not it is as a result of the decide needs to help the native bar, has had good previous experiences with clerks from these colleges, or has a very good relationship with specific recommenders.

So your probabilities could be good! And there are numerous issues your regulation college can do that can assist you even additional. We do numerous these items (and by we, I primarily imply Emory’s glorious clerkship-and-public-service-focused directors, although I additionally imply to partially embrace myself, who was chair of the clerkship committee for a number of years): We attempt to get college students excited about clerkship methods beginning early, to allow them to determine whether or not to do specific judicial internships/externships, community with college and different potential recommenders (e.g., by taking a number of programs with the identical professor, being a analysis assistant or paper advisee, and so on.). We do individualized clerkship advising (with journal college students, moot courtroom college students, affinity teams, and so on., however actually with anybody who’s ). Now we have varied occasions the place we herald judges, present and former clerks, alumni, and so on., to speak about their experiences. We assist individuals join with alumni or former clerks in the event that they’re focusing on a selected space. As a result of Emory has a student-edited chapter journal, the scholars on that journal are significantly well-placed to go to chapter judges, so we do a selected push on that entrance. We assist college students put together their purposes, and we assist professors write letters of advice if they do not know how you can write good ones. I may go on, however the primary level is stable: regardless of elite-school hiring biases on the U.S. Supreme Court docket, good college students at good colleges have good probabilities of getting good clerkships, and (at the very least for my college students at my very own college) I and the remainder of our employees are delighted that can assist you get one.

4. So why ought to I belief you, Volokh, to be my clerkship advisor or recommender?

However wait a minute, why must you belief me with any of this, since I am on file within the Washington Submit expressing my hypothetical-if-I-were-a-Supreme-Court docket-Justice desire for Harvard and Yale college students? Why ought to I be trusted to advise you, write you advice letters, or typically struggle for you once they’re in search of clerkships?

The straightforward and proper reply is: Effectively truly, these views of mine don’t have anything to do with my willingness to get you good clerkships, both in concept or in apply. (I would add “Simply ask a lot of my previous clerkship advisees”, however I perceive you may not have entry to these.) However to flesh this out, let’s suppose you are in my workplace and we’re excited about your clerkship software technique. Listed below are some questions you might need for me.

Q. Hey Volokh, I learn the Washington Submit . . . do you assume there’s somebody extra certified than me for the positions I need to apply to?

A. Possibly, perhaps not. Keep in mind how I stated there was overlap between the Harvard distributions and the Emory distributions? I’ve had Supreme-Court docket-quality college students right here at Emory, and I’ve tried laborious to get them prestigious feeder clerkships and Supreme Court docket interviews.

Q. O.Okay. Volokh, however supposing I am not some hot-shot famous person Emory scholar, then you definately in all probability assume there’s some Harvard/Yale scholar extra certified than me for the positions I need to apply to?

A. Fantastic, in all probability there’s some such individual on the market, who I’ve by no means met and who I am not motivated to hunt out. Possibly that individual is at Harvard or Yale, perhaps not. However what — and right here I will lapse into some authorized phrases of artwork — I truly do not give a fuck concerning the welfare or job prospects of that hypothetical Harvard/Yale scholar, as a result of they don’t seem to be my shopper. You are in entrance of me and so they’re not.

Q. However Volokh, should you have been a Supreme Court docket Justice, would you quite rent a Harvard/Yale scholar?

A. Why sure, I in all probability would (that is principally what I used to be quoted as saying within the WaPo article), if I have been a Supreme Court docket Justice and assuming that hypothetical Harvard/Yale scholar, with an identical grades/rank and the whole lot else, have been in my resume pile. However man oh man, I am by no means in one million years going to be a Supreme Court docket Justice, or certainly any kind of federal decide, as a result of I am too Democratic for the Republicans and too Republican for the Democrats. And as for this hypothetical-thought-experiment identical-looking scholar — who says I’d even have that scholar’s resume in my pile? And who cares what I’d do if, hypothetically, I began sporting that completely different hat, which might give me an entire completely different set of priorities? I am not involved concerning the hypothetical effectivity of a hypothetical future-Volokh-judge; I am involved about getting you, who’re in entrance of me, the most effective job potential.

Q. However Volokh, certainly, given your views, should you have been speaking to a decide who had non-elite-law-school hiring preferences, would not you assume these views have been irrational and attempt to speak them right into a extra elite-hiring view?

A. No approach: judges have the preferences they’ve, and if it seems some judges are anti-elitist, or hate Yale, or have Emory loyalty, or had good experiences with Emory college students previously, or have completely different views concerning the high quality distinction between Harvard and Emory, or no matter, I am delighted to capitalize on these preferences that can assist you get a job.

Q. However wait a minute Volokh, should you assume Harvard/Yale college students are (different issues equal) so a lot better, then you have to assume that, on some stage, the world could be a greater place (i.e., we’d have a better-quality judicial product) if the Harvard/Yale college students obtained these clerkships and the Emory college students did not. So how can we probably consider that you just’re actually preventing for our greatest pursuits?

A. This does not observe. What if I advised you that the standard of the judicial system is not simply the standard of the regulation clerks? The standard of the judges is vital, the standard of the clerks is vital, and so is the standard of the attorneys showing earlier than the courts and writing the briefs. This goes for the Supreme Court docket, decrease federal courts, state courts, and the entire total system. Everybody’s going to get some job, so even when, hypothetically, all of the Harvard college students have been higher than all of the Emory college students (which, as I’ve stated above, is clearly false), I don’t know why somebody pursuing some global-good-maximization would need to stick the Harvard college students within the prime clerkship spots and the Emory college students elsewhere.

Q. That is intelligent, Volokh, I will provide you with that, however I believe you are preventing the hypo right here. What if it turned out that every one Harvard college students have been higher than all Emory college students, and that enhancing the standard of federal regulation clerks have been the only most vital consider enhancing the standard of the authorized system. [Editor’s note: wtf kind of hypo is that???] Would not you then actually be rooting for a world the place your Emory college students misplaced all of the clerkship jobs to Harvard college students?

A. Ah, however there, even when I settle for the outrageous assumptions of your outrageous two-part hypo, you are attributing to me some form of global-maximization motive that bears little resemblance to my precise motivations. When you do properly, Emory does properly, and if Emory does properly, I do properly. And vice versa and all that. It is win-win-win. As a result of I am right here and never there, I am serving to you, as a result of serving to you additionally helps all of us round right here.

Q. Actually, so that you’re simply serving to Emory college students due to your egocentric issues?

A. Effectively, additionally I do know you higher, which typically makes me such as you greater than nameless Harvard scholar I’ve by no means met.

Q. Nonetheless feels like one other type of selfishness to me. It is not since you assume the world could be a greater place if Emory college students obtained higher jobs?

A. Effectively, additionally working at Emory is my job, and should you knew about my loopy libertarian views, you’d know that freedom of contract (and its twin brother, contractual obligations) are principally on the tippy-top of my scale of rights (and duties).

Q. So, nonetheless not since you’re making an attempt to make the world a greater place as an entire?

A. You are still asking me to play alongside together with your hypo the place all of the Harvard college students are higher than all of the Emory college students and federal regulation clerk positions are the only most vital issue within the high quality of the world? Effectively, if it makes you’re feeling any higher, it seems my selfish-seeming issues are additionally per my views on the position of attorneys in society. The premise of our authorized system is position accountability: everybody ought to play the half they’re given in addition to they will, and if everybody does their position correctly, the entire system works properly. As attorneys, we argue instances on a regular basis the place we disagree with our aspect’s place — and even the place we’d rule towards our place if we have been the decide. I can see how a layperson may assume that is bizarre or inconceivable or perhaps even unethical. However as attorneys, it ought to be second nature to us that working laborious for a place is completely per pondering that — if we have been czars designing the entire system holistically — we’d undertake the other place. That is why I do not assume that Supreme Court docket advocates consider the positions they’re arguing, and I do not assume any the more serious of them for it: quite the opposite, that is our particular lawyer superpower.

That is all a elaborate approach of claiming that your newfound information that I consider in elite law-school clerk hiring ought to have completely no bearing in your confidence that I would like you to get an superior regulation clerkship and can work laborious to get you one, even when I knew for a reality (which I do not) that there have been better-qualified college students competing for a similar positions as you.

Q. Hmm, alright, that is bizarre, however O.Okay.

A. Quite the opposite, I believe that is form of standard knowledge, solely most individuals have the judgment to not go blabbing about it to the Washington Submit.

Q. . . .

A. . . .

Q. But when elite law-school hiring is such a factor, then how are we going to get me that clerkship?

A. Aha, now we’re getting someplace. The excellent news is that there are many nice regulation clerkships to go round, many greater than the variety of elite law-school college students who’re trying! And there are many judges who do not observe elite-law-school hiring and have employed Emory college students previously! And there are many methods to tell apart your self so the hypothetical identical-Harvard-student does not exist in your decide’s resume pile. I am repeating myself now, so I will simply refer again to what I’ve written above. As it’s possible you’ll bear in mind from part 3, it seems we all know how you can place Emory college students in good clerkships, and we’ve a bunch of very succesful individuals at Emory (together with me) who’re good at strategizing about it. Why do not you cease by my workplace and we will speak about it.