Two summers ago, as a third-year law student at Georgetown University, James Gilmore applied for dozens of law clerkships with federal judges — temporary positions that are highly coveted for the experience and connections they afford. He received one reply.
The paltry response came after a school counselor downplayed his chances of obtaining a clerkship because he wasn’t ranked in the top of his class. “I was discouraged,” Gilmore, 33, said. “I took it to mean I wasn’t cut out.”
But he was. Gilmore, through networking with those who saw his potential and promoted diversity, snagged a one-year clerkship with Senior District Court Judge Fernando Gaitan Jr. of the Western District of Missouri. After it concludes this fall, he will start a second clerkship with the U.S. Courts for the 9th Circuit in Las Vegas.
Gilmore, who is Black, realized the difficulty to pierce through barriers was common among other law students and graduates of color. The most recent data analyzed this year reflects that: According to the National Association for Law Placement, which tracks career development and salaries in the industry, of the more than 3,100 graduates from the class of 2019 who said they earned a judicial clerkship, 77 percent were white and 23 percent were graduates of color.
Latino graduates made up 7.5 percent of all clerkships, Black graduates more than 6 percent and Asian graduates more than 5 percent. Black graduates were among the least likely to get a federal clerkship, making up about 4 percent of all 2019 graduates who were hired.
The association’s similar surveys over the past 15 years show judicial clerkships are slowly becoming more diverse — but barely. A concerted effort taking shape this year could help change that.
Law student groups, legal organizations and federal judges, particularly those of color, are working to ensure applicant pools are more diverse and using hiring pilot plans that make it easier for judges to connect with applicants whom they may not normally reach and may come from nontraditional backgrounds or schools.
Advocates’ hopes for increased diversity across the judiciary is getting a boost from President Joe Biden, who has nominated diverse judicial candidates for open federal bench positions — a turnaround from his predecessor, Donald Trump, who appointed a smaller share of nonwhite federal judges compared to other presidents of the past 40 years. The majority of Biden’s nominees have been women and also include African Americans, Asian Americans, Latinos, a Native American and a Muslim American.
“In this post-George Floyd moment, the judiciary is under tremendous pressure to make more changes,” James Leipold, executive director of the National Association for Law Placement, said. “If you want the justice system to be credible, it only works if we respect it and have faith in it, and it behooves us to have diverse clerks.”
‘Privilege replicates privilege’
Gilmore, of Kansas City, Missouri, was already at a disadvantage when he was at Georgetown Law. He didn’t come from a family of legal professionals like some of his classmates, and he was already an outlier in his family as the first person to graduate college.
A 2020 study from the American Bar Foundation, a nonprofit research institute, found that women, African Americans and Latinos face an uphill climb: They are disproportionately enrolled in lower-ranked law schools with lower rates of bar passage and post-graduation employment.
Black students make up about 8 percent of all law students at schools accredited by the American Bar Association. The number only slightly increased through the 2010s, which advocates say signals the need to attract more Black students to law school, particularly after abundant research illustrated the racial disparities that Black Americans face within the criminal justice system.
When Gilmore learned about the value of securing a federal clerkship and sought to apply, he heard a disheartening refrain: Many judges hire from certain schools; they get recommendations from favored professors, and those professors only endorse candidates from preferred backgrounds.
Although Gilmore attended a top law school, he recognized he didn’t have a traditional pedigree. “My classmates who I asked for guidance, they told me very frankly that it’s all about who you know,” he added. “I had classmates who had judges in their families.”
That hard truth was laid bare by the late U.S. Supreme Court Justice Antonin Scalia, who told New York magazine in 2013 that while he “would like to select somebody from a lesser law school” to clerk for him, he typically recruited from top-tier schools like Harvard, Yale and Stanford.
“It’s nice to get a kid who went to a lesser law school. He’s still got something to prove,” Scalia said. “But you can’t make a mistake. I mean, one dud will ruin your year.”
Scrutiny over the close relationships between federal judges and professors at top law schools was highlighted last month in a New York Times profile of “Tiger Mom” and Yale Law School professor Amy Chua, who bragged how her daughter was given a clerkship with Brett Kavanaugh, a Yale Law graduate, before he was elevated to the Supreme Court.
Leipold said it’s important for federal judges, who remain overwhelmingly white and male, to help break the cycle of a lack of diversity among their staff. It’s not that how a judge identifies or their personal beliefs should affect how they interpret the law, he added, but that by surrounding themselves around people of different demographics, they can have a better understanding of how laws affect everyone, which can better inform their rulings.
“We’re in a moment where you have Biden and [Vice President Kamala] Harris, both of whom are lawyers and neither of whom went to top law schools, trying to change the image of prestige and reputational hierarchy, which is exaggerated in the legal arena,” he said. “The problem we have is privilege replicates privilege replicates privilege.”
Rerouting the pipeline
Other current and former federal clerks have similar experiences struggling to land their clerkships through an orthodox pipeline centered on privilege.
Octavia Monique Green, 32, had been employed as a commercial litigator for a practice in Miami when she was selected in May 2020 to clerk for Judge Rodney Smith of the U.S. District Court for the Southern District of Florida. It was a boon for Green, a University of Miami School of Law graduate, who said she benefited from the help of senior Black attorneys who wanted to see younger Black attorneys such as herself rise in the ranks.
“It really took utilizing networks and connections to then get linked with Judge Smith,” Green said. “And it took him being intentional in hiring me as a clerk.”
Similar to Green, Jamila Williams, 28, a University of California, Berkeley, School of Law graduate, said no one really explained how federal clerkships can be career changing when she was in school. She worries that students of color and first-generation law students may miss their opportunities.
Williams said she was able to acquire her current federal clerkship in the Central District of California after working “twice as hard and speaking up” as one of the only Black students in her law classes, and now she pays it forward by speaking to undergrads about applying for law school.
“I always wanted to be a judge, and now I see it’s not too far out of reach if I really want it,” Williams said. “It takes everyone buying in and pulling each other up for this to work.”
Law associations and student groups across the country agree.
In New Mexico, a judicial clerkship program created by the state bar’s Young Lawyers Division was recognized this year by the American Bar Association for helping traditionally underrepresented law students obtain post-graduation judicial clerkships. It included awarding those students a $4,000 stipend for the summer.
Shasta Inman, the chair of the state bar’s Young Lawyers Division, said legal positions can be unpaid, and students from underrepresented backgrounds often cannot afford to engage in the traditional internship or clerkship program because they are already struggling with student loan debt or may need to work better-paying jobs to care for their families.
“These applicants aren’t any less qualified to serve as clerks, but they — perhaps — haven’t been supported in or encouraged to apply for the opportunities,” Inman said in an email. “Our program aims to fix that.”
There are local, state and federal clerkships that do pay, and although the salaries are comparatively low, clerkships provide “credentials and experience that are considered a continuation of legal training and that can greatly enhance long-term employment options,” according to the National Association for Law Placement.
Leipold said it’s not unheard of for those who complete a prestigious federal clerkship to return to private practice and get a signing bonus from a law firm in the low six figures.
Anthony Collier, a law student at the University of Texas at Austin and the chair of the National Black Law Students Association, which represents nearly 6,000 students, said the group will begin surveying its members about their clerkship application experiences.
The goal, he said, is to create solutions, including getting state and federal courts to partner with the association and historically Black colleges and universities to develop mentorships and groom first-year law students so they’re prepared for the clerkship process.
“A number of our students have the grades, but they don’t have the access,” Collier, 28, said. “This lack of diversity is appalling.”
Some federal judges also acknowledge that they can no longer sit idle.
“I always wanted to be a judge, and now I see it’s not too far out of reach if I really want it.”
Laura Taylor Swain, the chief U.S. district judge for the Southern District of New York, one of the busiest and most influential federal courts in the nation, said she makes a point to look at a diverse candidate pool for potential clerks and never turns down the chance to participate in summer internship programs geared toward underrepresented groups.
She credits her clerkship with Constance Baker Motley, who in 1966 became the first African American woman to serve as a federal judge, for instilling in her an understanding of self-worth as a Black woman in a field where she remains an exception.
While a judge’s hiring decisions are their own and not dictated by any rules, Swain said, she hopes her colleagues become more open-minded to looking beyond the same institutions for their clerks. Most importantly, she added, people will notice the change.
“We need to have respect for and show confidence to the community, to the extent that they see themselves reflected in the personnel we keep and the people holding important positions within the judiciary,” Swain said, adding, “It benefits the judiciary. It benefits society.”