If this monthly column had a slogan, it might be: "Reading law review articles so you don't have to!" Last month's column, "Predicting Appellate Outcomes Based on the Panel," (Daily Journal April 2, 2024), focused on two recent law review articles exploring an important question for appellate practitioners: What factors from a judge's background might have an effect on appellate decision-making, and how. One of the articles looked at federal appellate judges, and the other looked at California Court of Appeal justices. And they looked hard: The first article is 61 pages, the second was a mere 53 pages. The column summarizing both articles was only about 1500 words. That seems like a good bang for your buck--and you can always read the full articles if you like.

This month we continue in the same vein. Another recent significant law review article that appellate practitioners should know about is Fogel, Hoopes & Liu's "Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals," 137 Harvard Law Review 588 (Dec. 14, 2023). Yes, those names ring a California bell: That's our Supreme Court Justice Goodwin Liu, along with retired N.D. Cal. Judge Jeremy Fogel (former director of the Federal Judicial Center), and Pepperdine Caruso Law School Professor Mary Hoopes. These three well-connected luminaries confidentially interviewed 50 active federal appellate judges about how they hired law clerks.

At this point, regular readers of this column should already be hooked. But just to make sure everyone's up to speed, here's why this is a big deal: Federal appeals court judges were first authorized to hire law clerks in 1930. Today, each active status federal Court of Appeals judge has two to four law clerks. In case you hadn't heard, "[j]udicial clerkships are key positions of responsibility and coveted opportunities for career advancement." Id. at 589 (article abstract). More importantly, "federal appeals court judges ... delegate[] significant job responsibilities to their clerks. [Most] require[] their law clerks to prepare the first draft of opinions ...." Todd Peppers, "Thoughts on Law Clerk Diversity and Influence," 137 Harv. L. Rev. F. 109, 130 (Dec. 2023). In other words, these clerks can have a major influence in how your appeals are decided. So just as it's wise to know something about how backgrounds affect the decision-making of judges, it's also important to know who's doing important work behind the scenes in chambers. See id. at 131 ("If we assume that a judge's personal attributes, political preferences, and strategic choices help us explain and predict judicial behavior, then the same argument can be made about law clerks.").

Ok, back to the article (accurately called "the most detailed account to date regarding the selection criteria used by federal appeals court judges to select their law clerks," Peppers, supra, at 109) and the appellate-judge interviews. The 50 interviewees included judges from all circuits, appointed by presidents of both parties (18 Republican appointees, 32 Democratic appointees, with an average tenure of 14 years, and 10 were Ninth Circuit judges. Given that there are 179 authorized judgeships in the federal courts of appeals, interviewing 50 judges is significant.

Eight key findings emerged: (1) "judges disclaim any interest in ideological alignment when hiring clerks"; (2) judges hire clerks as an "ensemble" and seek "diversity"--though they "vary significantly in the dimensions of diversity they seek" including diversity across academic, racial, gender, socioeconomic, sexual orientation, and ethnic backgrounds; (3) Republican appointees "more often identified socioeconomic diversity as the primary dimension of diversity they seek" (but note that the authors "are not aware of any data on the socioeconomic background of law clerks"); (4) judges consider gender and "have specific goals for gender balance"; (5) most judges assign positive value to racial diversity, but some strongly believe such consideration is inappropriate; (6) many judges "reported difficulty in hiring Black and Hispanic clerks"; (7) "Black judges are particularly successful in hiring Black clerks"--"Black judges, who comprised less than one-eighth of active circuit judges ... accounted for more than half of the Black clerks hired each year in the federal courts of appeals"; and (8) Judges who graduated from outside the top 20 ranked schools are significantly more likely to hire clerks from schools outside the top 20. ("NALP clerkship data from 2017 to 2019 shows that the top thirty schools accounted for over 60% of federal clerks.") Fogel, Hoopes & Liu, supra, at 589-90, 597.

Despite differing approaches toward identifying qualified clerks, the interviewees consistently looked for the same skills in their clerks and described the qualities of a well-functioning chamber in the same way. Judges "uniformly described their clerks as essential to the quality of their chambers work product," many judges referred to their clerks as "family," and "all judges said they seek excellence in research, writing, and analysis." Id. at 610. A substantial majority of judges "rely heavily on grades and law school ranking," primarily hiring from the top 10 percent of the class. Id. Many judges reported that "diversity enhances the quality of their decisionmaking and work product" and "enhances public perception of the judiciary's integrity." Id. at 611-12.

The article explores how judges consider law schools (some judges note that "law clerks from non-elite schools may work harder and demonstrate greater determination to succeed," in contrast to "clerks from top schools [who] are sometimes 'pretentious' or have 'a sense of entitlement' that impairs working relationships," id. at 615), ideology ("law clerks in the federal courts appear to be predominantly liberal," reflecting "the fact that graduates of top law schools are overwhelmingly liberal," id. at 649), socioeconomic background (including status as a first-generation college or law school graduate, id. at 619), gender ("[n]early every" judge "considers gender in clerkship hiring," 25% of the interviewees "have specific hiring goals" when it comes to gender, and "only two judges said they select clerks without any consideration of gender," id. at 621; note also that women outnumber men in state clerkships, id. at 596; see Badas & Stauffer, Gender and Ambition Among Potential Law Clerks, J. of Law & Courts 1 (2023) [women are less likely to apply for federal appellate clerkships than men]), sexual orientation, and race and ethnicity ("the majority of judges ... value racial diversity and consider race to some degree," id. at 624). The article also examines the "referral system" and "outreach efforts" that appellate judges use, involving district court judges, law professors, and former clerks, to help identify candidates. And there is discussion of the role of "feeder judges" and other aspects of "judicial culture" in shaping the pool of applicants and clerkship hires.

With regard to "judicial culture," another key finding was that "judges do not discuss clerk hiring or diversity with each other" very often, if at all. Id. at 590. "[J]udges view clerk hiring as a highly personal and discretionary prerogative" (id. at 618) and their silence with each other about it "reflects norms of judicial culture that foster collegiality and mutual deference" while nevertheless "inhibit[ing] peer-to-peer discussion" among judges (id. at 592). Even so, "many judges want to hire more diverse clerks and would like to learn from their colleagues' practices." (Id.) This article will no doubt provide a springboard for such discussions among judges. As for appellate lawyers, this article is a fascinating read--especially the many quotes from the interviews--shedding insights into an important but hidden world.

The authors make a good case for the compilation (which currently does not exist) and public release of "[a]n annual report of law clerk demographics that is official, complete, and public ...." Id. at 652. Further, the authors propose the creation of a "clerkship resource liaison" in each circuit, with whom judges can consult for assistance in hiring objectives, and someone who could facilitate communication between judges and law schools. The authors emphasize that this position is not meant to be a "diversity, equity, and inclusion officer for the circuit," which is something entirely different--and a role that apparently only the Ninth Circuit has implemented. (id. at 657, n.115.) For another interesting aside, see Ryan Black & Ryan Owens, "The Influence of Personalized Knowledge at the Supreme Court: How (Some) Former Law Clerks Have the Inside Track," 74 Pol. Rsch. Q. 795, 795 (2021) (analyzing 40 years of SCOTUS Justices' votes and finding that an attorney who formerly clerked for a Justice is 16% more likely to capture that Justice's vote than an otherwise identical attorney who never clerked).

So what about California's appellate court system? With a few exceptions (e.g., Justices Liu and Hoffstadt), California appellate justices do not have term "law clerks," but instead employ a permanent staff of "research attorneys." Many districts also have extern programs.

A recent Daily Journal article explained that "[t]here are 106 Court of Appeal justices in California, and each has three research attorneys," in addition to shared writs attorneys in each division. David Houston & Malcolm Maclachlan, "Jurists Expand Mentorship Program to Research Attorneys," Daily Journal (April 15, 2024). "Research attorneys help the justices research and write opinions and are at the table when some of the weightiest legal issues of the day are being hashed out." Id. Moreover, similar to federal clerkships, "[t]hese jobs are often seen as pipelines to appointments to trial and appellate courts." Id. (noting that Justices Mesiwala, Rodríguez, and Chou worked as research attorneys or law clerks). This article also quotes Justice Helen Zukin (2d District, Division 4) stating that "research attorneys are an integral part of what happens here [at the Court of Appeal]" and the "research attorney applicant pool is not that diverse." Thus, this mirrors the issue in the federal system. To address this concern in California, an existing program run by California judges to mentor attorneys about applying to the bench has been expanded to mentor applicants to be appellate research attorneys.

While ordinary lawyers may never see a law clerk or research attorney, and may never give a second thought to their existence, readers of Exceptionally Appealing have a heightened interest in who's in chambers. This column, and the articles it discusses and cites, should serve to raise awareness and knowledge about these essential appellate-chambers' denizens.

Reprinted with permission from Daily Journal.