Courtroom

The National Football League's regular season just ended. As always happens this time of year, many teams fired their head coaches based on a perceived failure to meet expectations. Eight coaches have lost their jobs, and the search for replacements is in full swing.

To some degree, the scramble for new head coaches calls to mind the scrum among federal judges to find the best law clerks. Multiple owners interview the same top-ranked coaching candidates and rush to give them offers. Presumably some owners, like some judges, have long been watching the progress of certain candidates, doing their homework in advance so that they are ready to make an offer promptly.

But there's one major difference, and it makes the NFL coaching search fairer and more methodical than the judicial competition for clerks. In the NFL, they have the Rooney Rule.

In 2002, two high-profile minority head coaches—Tony Dungy and Dennis Green—were fired, leaving a grand total of two minority head coaches out of 32 teams, in a league that consists mostly of black players. This prompted an outcry about the NFL's lack of commitment to improve minority representation among its coaches. In response, the league appointed a commission headed by Dan Rooney, owner of the Pittsburgh Steelers and, later, ambassador to Ireland under President Barack Obama, to address the problem. The challenge for the commission was that, while it couldn't force owners to hire people they might not want to hire, it needed to find a way to discourage owners from mindlessly plucking coaches from the old boys' network, thereby preventing minority candidates from getting a shot.

The commission recommended, and the league ultimately adopted, the Rooney Rule, which precludes an owner from hiring a head coach until at least one minority candidate has been interviewed. Obviously, this isn't a perfect solution. Owners could simply go through the motions of interviewing candidates of color, but then hire the “old boy” who was on their radar all along. And going through the interview process without a real shot at the job could be demeaning for the minority candidate. On the other hand, the minority candidate might knock the owner's socks off, causing the owner to change plans or for word to spread about the candidate, resulting in a decision by some other owner to hire him. And longer term, it might become second nature for owners to interview and hire minority head coaches, perhaps even eliminating the original need for the rule.

There's debate about how successful the Rooney Rule has been. My own view is that it would be more effective if it also covered assistant coaching hires, because this would help create a better pipeline to the head coaching ranks for diverse candidates. But the numbers seem to suggest that the rule was a good idea: Shortly after its adoption the number of minority head coaches began to rise, and it has held relatively steady since. This past season, there were eight minority head coaches, still not good, but an improvement.

When I took the bench around five years ago, I was struck by how many law clerks are white and from privileged backgrounds. This is to the detriment of the legal profession (in which people from all walks of life should have a chance to rise to the top) and the judiciary (which benefits from having people with different perspectives involved in the decision-making process). I thus adopted my own version of the Rooney Rule: I will not fill a law clerk slot until I've interviewed at least one minority candidate and at least one candidate from a non-“T-14” law school (since those schools tend to have more students from less-privileged backgrounds).

Obviously, I don't always hire law clerk candidates who meet this description. But interviewing off-the-radar candidates has sometimes led me to hire a fantastic person who might not originally have been given an interview. Other times I've not hired the person, but the interview with me has led to interviews with other judges (often on my recommendation). Overall, my hiring process has been better because of this practice, and it has resulted in stronger chambers.  

To be sure, imposing a Rooney Rule on yourself makes hiring more difficult. It requires reaching out to law schools to make sure they know you want diverse candidates. It involves interviewing more people. And it requires self-discipline: you might lose the chance to hire a candidate you really like because they accept another offer while you're waiting to comply with the rule. (I must sheepishly admit that occasionally in the first couple of years I violated my rule because of that time pressure.)

Another challenge will be the new law clerk hiring plan. The plan has two elements: 1) federal judges agree not to interview candidates until a particular date in June following their second year of law school; and 2) beginning on that date, judges can give offers that expire in as few as 48 hours. These two elements will combine to make it even harder for judges to comply with a Rooney Rule, because they risk losing a chance to hire a candidate they interviewed on the first day while they wait to complete other interviews. It would be easier to implement a Rooney Rule (not to mention being more humane to the students overall) if there were a two-week interview period before the date on which judges could begin making offers.

But in my experience, the benefits of adopting a Rooney Rule have outweighed, and will continue to outweigh, the difficulties. Who would have guessed that the endless time I've spent following football would help me serve more effectively as a judge? But it has. I urge federal judges to consider adopting their own version of the Rooney Rule for law clerk hiring.

Vince Chhabria is a judge on the U.S. District Court for the Northern District of California, a long-time San Francisco 49ers fan and a terrible fantasy football player.