Here’s How Federal Judges Think About Diversity in Paralegal Hiring

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As the Supreme Court considered end the use of race as a factor in college admissions Last month, Judge Elena Kagan suggested that the court’s decision could have implications beyond higher education, and closer to the federal judiciary.

Would it be appropriate for judges, Kagan asked, to consider race when making hiring decisions, especially if the judges feel they must do so to create a diverse roster of paralegals?

“The question is, when racially neutral media can’t get you there, won’t get you there, when you’ve tried and tried and still can’t get you there, can you be race conscious?” Kagan asked the lawyer that he was challenging Harvard’s admissions policy.

“I don’t think so, Judge Kagan,” the lawyer replied.

A article posted online on wednesdayhowever, it suggests that many of the nation’s appellate court judges, one notch below the Supreme Court, do think about race and gender when evaluating applicants for the highly coveted one-year internships at their cameras.

A pair of judges and a law professor interviewed 50 judges from courthouses across the country, providing rare insight into how they approach hiring for jobs that influence judicial opinions and serve as stepping stones to internships and Court positions. Supreme even more prestigious in government, academia, and private practice.

US District Judge Jeremy D. Fogel, California Supreme Court Justice Goodwin Liu and law professor Mary S. Hoopes say they were inspired to take on the project because of their concerns about the Lack of diversity in the legal profession and among the ranks of federal paralegals, in addition to his own struggles to hire employees who reflect the diversity of law students.

“We know we are not the only ones experiencing hiring challenges, however there appears to be little systemic research on what judges seeking more diversity, however defined, can do to achieve it,” they wrote.

The interviewed judges are not identified by name in the article to encourage candid conversation. A lots of reported difficulties hiring Black and Latino employees. Those who were most successful in hiring people of color took steps to broaden their pool of candidates and consider indicators of talent beyond law school rank and qualifications. Black judges, the study shows, are particularly successful in recruiting and hiring black employees; they made up less than one-eighth of all active appellate court judges at the time of the study, but their courts represented more than half of black court clerks.

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“In short, diversity among judges affects diversity among clerks,” the authors wrote.

Historically diverse Supreme Court listens disproportionately to white lawyers

The report includes direct quotes from several black judges who encouraged their colleagues to “dig deeper” and broaden their networks to find more diverse candidates, even looking beyond elite law schools. Judges who did not graduate from the top-ranked law schools were much more likely to hire paralegals who did not attend one of the top 20 schools, the study found.

“I don’t care where the students went to school. You have to do your homework and dig under the transcript,” a judge said. “There is no monopoly on brains or qualifications; it is a question of opportunity”.

Another black judge told the authors that he was sending a message by hiring a large number of talented black employees.

“My work is done, it is of high quality, it arrives on time, [other chambers] know who my employees are. … It’s not an affirmative action experience, nothing like that,” the judge said. “Diversity does not mean a decrease in quality. It means you have to be willing to look in non-traditional areas.”

Judges have full autonomy to choose their attorneys, and are essentially their own HR managers and diversity, equity, and inclusion officers. Many rely on longstanding networks of law professors, former employees, and law schools for recommendations.

Liu, who was a law clerk to the late Justice Ruth Bader Ginsburg after graduating from Yale Law School, said she has too often hired people from the same law schools because she hasn’t had the time or context to build new relationships. The article calls for more comprehensive data collection on the demographics of paralegals to spark conversations among judges and help overcome what the authors describe as a “culture of silence,” in which judges rarely discuss their practices. hiring so as not to meddle in a colleague’s affairs. independence and because of competition for the best hires.

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“I’m not sure judges are very influenced by outside calls for diversity. What will influence them is the conversations between them, and that is not happening at the moment,” Liu said. “This is a tool to help us understand who makes decisions and who holds important positions of responsibility.”

Biden has installed a significant number of judges from various backgrounds; Now comes the hard part

Interviews were conducted over the past two years with judges appointed by the presidents of both parties, who represent nearly 30 percent of the total active appellate court judges. More Democratic appointees responded to randomly issued invitations than Republican-appointed judges. Because the authors limited interviews to judges with several years of hiring experience, former President Trump’s most recent nominees were not included. The study oversampled minority judges because there are so few on the court and because of evidence suggesting they were more successful hiring minority clerks.

In general, the judges who were interviewed said they were more willing to intentionally pursue gender balance than racial diversity because they viewed race as a more sensitive issue. But nearly all said they consider race and “place a positive value” on racial diversity, and some use language strikingly similar to that used by universities at the center of affirmative action Supreme Court college admissions cases. .

Race or gender can be a “tie-breaker” or “positive factor,” a judge told the authors, but only if someone qualifies.

“My overall target is two women and at least one employee of color,” another judge said, according to the article.

Only two of the judges interviewed said that conscious consideration of race is inappropriate, with one telling the authors, “I only want the best people. It has nothing to do with the color of their skin.”

In oral arguments in college admissions cases, the Supreme Court’s conservative majority appeared to take that approach, with several justices comparing any consideration of race to the segregationist and discriminatory policies of the past.

Recent studies show that Supreme Court clerks overall are disproportionately white and male, as are lawyers arguing before the high court. One exception is employees working for Judge Brett M. Kavanaugh, who previously served on the US Court of Appeals for the DC Circuit. and has long made an effort to diversify its cameras. Only three of the 20 clerks Kavanaugh has hired at the Supreme Court are white men.

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Regardless of race and gender, most judges interviewed said they want ideological diversity among their employees and are not looking for employees whose views coincide with their own. But applicants tend to be self-selecting, according to interviews, applying to like-minded judges.

The report said the self-selection process focuses, in some cases, on separate hiring deadlines used by some judges. One Republican candidate said “committed conservatives” are already “hired and off the market” when she’s hiring.

She and most of the judges in the study reported using a national recruitment plan and online application system designed to make the process transparent and uniform, but some said their right-leaning colleagues aren’t following it, instead recruiting future employees through other networks long before students finish their sophomore year in college. law.

The ideological divide among clerks hardens, the article says, because Supreme Court justices hire their clerks “almost evenly” from the ranks of like-minded appellate court judges, with liberal justices hiring those who worked for judges. liberals and conservative judges hiring their colleagues. conservatives

Almost all of the judges said their goal is to assemble a set of employees that complement each other. They emphasized an interest not only in racial and gender diversity, but also in socioeconomic and geographic diversity.

“I hope it doesn’t sound trite, but I think our institutions should look like America,” said one Republican representative, adding that he felt “a little embarrassed” looking at a picture of his circuit judges because there weren’t so few. women.

A Democratic appointee told the authors: “The cases we deal with come from a society that comes from many different complexions and I need that on my cameras. I need to have people around me who can help me be aware of my own blind spots.”