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Ever since Justice Anthony M. Kennedy retired last summer, his legal legacy has been hotly debated. But one thing is for certain — his legacy will forever be tarnished by the inequity he perpetuated in his hiring of judicial clerks, and he’s not alone. Both Justices Samuel A. Alito and Ruth Bader Ginsburg have reportedly only hired one black clerk ever in their times on the bench.
State and federal judges across the country hire recent law school graduates for one-year clerkships, which are widely considered among the most prestigious jobs a young lawyer can get. Since 2005, 85 percent of Supreme Court clerks have been white and two-thirds have been men. Justice Kennedy alone hired six times as many men as women for his clerkships between 2005 and 2017. In the meantime, women made up the majority of students in law school for the first time in 2016, so there’s no shortage of qualified candidates in the pipeline. Why then are people of color, BGLTQ people, women, and other marginalized groups so underrepresented in our country’s court chambers — and what can be done about it?
There is no doubt just how discriminatory the clerkship system can be, from rampant unchecked sexual harassment to persistent gross disparities in the representation of people of color, women, and other marginalized groups. The new national clerkship hiring pilot plan is essential to creating an equitable environment for students interested in clerking and combating the lack of diversity in the judiciary. The clerkship hiring process has long advantaged the well-connected and powerful to the detriment of minority, first-generation, and female students, who have lacked equal access to information and resources available through traditional legal networks. In some cases, networks like the Federalist Society help certain students circumvent the common application process for clerkships and even the requirement for full applications through a system of closely-guarded lists. In other instances, students from privileged backgrounds are simply ready to apply sooner because of their familiarity with “what it takes,” creating a race to secure clerkships that has pushed the process all the way back from a student’s third year of law school to the middle of their first.
As clerkship application timelines have become front-loaded, students who would benefit from additional time to adjust to law school — or who may lack an insider’s understanding of the competitive process — have been left at a significant strategic disadvantage. The new clerkship hiring pilot plan, which Harvard Law School and many judges have opted into, pushes back the recruitment and hiring timeline, which helps even the playing field in a few key ways. First, it gives first-generation and non-traditional law students, who may take longer to adjust to law school, a chance to get more grades on their transcripts, enabling them to become more competitive clerkship applicants. In addition, the plan gives students more time to research judges and establish relationships with professors who can guide them through the hiring process, which is especially necessary for marginalized students who may be more vulnerable to harassment and discrimination in hostile clerkship environments.
In the interest of creating a more diverse class of clerks, it is imperative that students adhere to the timelines set out in the clerkship plan. The two-year pilot requires student cooperation to be successful and to encourage judges to continue with the plan beyond the pilot. We call upon students to cooperate by refraining from actively seeking positions and preparing applications before the end of their second year.
Of equal importance, professors, too must refrain from writing letters of recommendation, speaking with judges, or consenting to serving as a reference on behalf of students before the end of their second year. Unfortunately, there have already been multiple accounts of Law School students securing clerkships a year ahead of this timeline, which almost necessarily required the collaboration of professors willing to serve as references ahead of the plan’s timeline.
Harvard Law School led the way in pushing for this important reform when the clerkship application process last devolved into a race to the bottom. As the largest law school in the country, Harvard has a tremendous amount of power to ask judges, students, and faculty to follow this plan. The Law School’s administration must take active steps to ensure that its students and professors alike are operating in the spirit of this critical program — especially given that we already know some are not. And now, the Law School community must come together to support this policy so that we may avoid the same fate again.
Law school student organizations also play a crucial role in the success of the hiring plan. They foster and maintain vital networks that help connect their members with professional opportunities. But those networks cannot and should not be exploited to undermine the spirit of the pilot. Accordingly, 38 student groups at Harvard Law School, from the Mediation Program to the Mississippi Delta Project, have committed to follow the pilot framework and encourage members to do the same. Although clerkship hiring isn't directly related to the mission of many of these groups, all of us have a common interest in supporting equity in the legal profession at large.
These inequities in a court’s chambers shape the perspectives of the nation’s most powerful judges — and therefore the law itself. Representation is not enough to ensure justice for marginalized groups, but in an era when our country’s most vulnerable are under constant attack, representation matters more than ever. Not only should students and student organizations continue to encourage compliance with the plan, other law schools should follow suit and ensure that their resources are not being used to help individuals circumvent the pilot program.
A. Vail Kohnert-Yount is a second-year student at Harvard Law School and is the Activism Chair of the Harvard Law Chapter of the American Constitution Society. Radhe P. Patel is a second-year student at Harvard Law School and is the Vice President of the Harvard Law Chapter of the American Constitution Society. Hannah A. Klain is a third-year student at Harvard Law School and is the President of the Harvard Law Chapter of the American Constitution Society.
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