A new effort is underway to find the answer to a quandary that has long vexed the federal judiciary: why so few minorities serve as law clerks.

California Supreme Court Justice Goodwin Liu, a former clerk to Supreme Court Justice Ruth Bader Ginsburg, has joined former judge and Federal Judicial Center director Jeremy Fogel, and the American Bar Foundation, to delve into the question and come up with positive solutions for judges, law students, professors and other players in the law clerk hiring process.

Liu and Fogel acknowledge that the project is not an easy undertaking. Remarkably little data on the subject is available. And the issue itself is touchy; even judges who want to hire more minority clerks are sometimes uneasy about seeking them out or discussing their hiring process.

“We’ve been in consultation with a number of judicial colleagues,” Liu said in an interview, with the aim of understanding “the sensitivity of this topic and trying to figure out the safest and most comfortable way to talk about a delicate subject.”

Fogel said, “It’s complicated. The more I dig in to it, the more complicated it looks.”

Liu conceived of the idea for the study after participating in a 2017 project chronicling the role of Asian American attorneys in the legal profession. One of the findings was that the percentage of law clerks who were Asian-American had remained in low single digits and stagnant for decades, even as the percentage of Asian-American law graduates in top schools had risen. (A 2017 National Law Journal story that tallied the demographics of Supreme Court law clerks also found “near-glacial progress” over two decades in the numbers of minorities hired by the justices, especially African American and Hispanic clerks.)

Liu decided to focus exclusively on the clerk landscape of the federal appellate circuit courts, a large but manageable cohort for study. Ajay Mehrotra, executive director of the American Bar Foundation, will seek out the views of 30 law schools that “feed” the most clerks to appellate judges.

The interviews will be held confidential, and Liu stressed that “we are certainly not trying to paint the judiciary in a bad light. We’re not trying to paint anyone in a bad light. We’re just trying to understand what people perceive the obstacles to be.”

One early obstacle: the Administrative Office of the U.S. Courts does not disseminate data on the number of minority law clerks or whether the percentage has gone up or down. In charts involving demographics, clerks are lumped together with other “legal professionals” working in federal courts, such as staff attorneys.

“There is no national collation on the demographics of law clerks,” said David Sellers, public affairs officer of the Administrative Office of the U.S. Courts.

Nonetheless, the project is studying three aspects of the clerk mystery: minority students themselves and why they may bypass the opportunity to clerk; law schools and whether they make efforts to encourage minority candidates to seek out clerkships; and the judges’ hiring practices and the extent to which they recruit minority candidates.

Liu has already discerned a pattern. “There is a tendency, not in a bad way, for each of these actors in the pipeline to kind of shift responsibility to the other. The judges will say, ‘Well, we can only hire the people the schools give us, and it’s a pipeline problem.’ And the schools will tell you, ‘Well, we only send people to the judges based on what they tell us they want.’ And then they say, ‘Well, we can only do what our students raise their hands to do.’”

As for students, Liu said they “come to law school with such different social and cultural capital.” First-generation law students may not be familiar with clerkships and the opportunities they open, preferring law firms instead where salaries are higher than the relatively low pay for law clerks. Some minorities who want clerkships apply mainly to judges who share their race or ethnicity, Liu said. “From personal experience, I get a surfeit of Asian American applicants,” said Liu, the son of Taiwanese immigrants.

One positive move Liu pointed to is the newly revised clerk hiring plan that pushes back the date when federal judges can recruit clerks, a change that may give law students more time to blossom and to see the importance of a clerkship.

As for judges, some appear to be reluctant to ask their “feeders” to supply them with clerk candidates based on race or ethnicity rather than conventional criteria. In a 2017 National Law Journal report on the dearth of minority law clerks at the Supreme Court, several feeder professors said they had never heard from justices that they were seeking out minorities.

Kavanaugh Judge Brett Kavanaugh of the D.C. Circuit. Photo: Diego M. Radzinschi/ALM

By contrast, when Justice Brett Kavanaugh was a judge on the D.C. Circuit, he made a point of speaking directly with minority law student organizations about clerkships. “A big part of it is demystifying the process, having a conversation about how it works, and encouraging the students to apply,” he told The National Law Journal in 2017. Ten of his minority clerks went on to clerk at the Supreme Court.

Fogel mentioned another idea that judges could consider to “move in the right direction” toward diversity among clerks. He cited the essay written in January by California U.S. District Judge Vince Chhabria that urged judges to adopt the National Football League’s so-called “Rooney Rule,” which requires team owners to consider at least one minority candidate when hiring a new head coach.

“If you rely on the traditional channels, you end up finding people like you,” Fogel said. “Having an echo chamber is not a good thing.”