Why Hiring a Law Clerk Should Be Like Hiring an NFL Head Coach

The federal judiciary should run more like the National Football League (NFL).

Okay, I will grant you that is an overly general statement. But there is one NFL practice that federal judges should consider borrowing: a dedication to interviewing at least one woman and candidate of color for each open position. Specifically, federal judges should commit to interviewing at least one candidate from a traditionally underrepresented demographic for each open judicial clerkship.¹

A similar rule has been in place in the NFL since 2003, in law firms since 2017, and in corporate legal departments since 2019. With many federal judges devoting considerable time and energy to promoting diversity in the legal profession, I respectfully submit that now is the time for judges to collectively formalize their commitments to diversifying the federal bar. One of the best ways to do this is through law-clerk hiring.

The Rooney Rule

The NFL implemented the Rooney Rule in 2003. Named for Dan Rooney, former chair of the NFL’s Pittsburgh Steelers and the NFL’s diversity committee, the rule requires NFL teams hiring head coaches to interview at least one candidate for the position who is a racial or ethnic minority. In 2009, the NFL expanded the rule to cover the hiring process for general managers and equivalent front-office staff positions. The policy deems that any inconsistent behavior will be treated as detrimental conduct under the NFL constitution and bylaws, subjecting the violating franchise to league discipline.

The NFL’s Rooney Rule has had mixed results, increasing the numbers of minority head coaches and assistant coaches but not achieving the same increase for team staff as a whole.²

The Mansfield Rule™

Diversity Lab’s Mansfield Rule™ is an even better model. Inspired by the NFL’s Rooney Rule, the Mansfield Rule™ is named after the first woman admitted to the practice of law in the United States, Arabella Mansfield.³ Law firms and legal departments commit to participate in the program, which measures whether the organization has considered attorneys from historically underrepresented groups for a variety of positions, including leadership roles and equity partner promotions.⁴ Law firms and legal departments agree that a minimum percentage of their candidate pool will be attorneys from historically underrepresented groups. In version 4.0 of the Mansfield Rule™, participating law firms commit to a candidate pool with at least 30 percent attorneys from historically underrepresented groups; for corporate legal departments, the number is 50 percent.

In 2017, 44 law firms piloted the project. Now, despite a global pandemic and economic downturn, 117 law firms have committed to the Mansfield Rule™ 4.0.⁵ Diversity Lab has evaluated each version of the rule. The results—too detailed to outline here, but worth reviewing—are impressive.⁶ Notably, over three-quarters of participating law firms have reported that their equity partner promotion pools were more diverse.⁷

The Value of Judicial Clerkships in the Current Climate

A judicial clerkship—particularly a federal one—is oftentimes a golden ticket for a newer attorney. Without a doubt, a clerkship offers a newer lawyer the chance to improve writing skills, refine critical thinking skills, and create an invaluable mentoring relationship. But from a purely résumé-enhancing perspective, a clerkship also bestows upon a newer attorney a stamp of approval that opens doors to opportunities at prestigious law firms and government agencies and in academia. Consequently, it is critical that attorneys from diverse backgrounds have opportunities to clerk.

This is true as ever now. In the January/February Diversity and Inclusion column, Lisa Kpor, Katherine Earle Yanes, and Tara Norgard noted that our “profession remains one of the least diverse professions in the nation.”⁸ Despite notable advancements in terms of representation, the legal profession continues to lag behind when it comes to the percentage of women attorneys, Black attorneys, Latino attorneys, LGBTQIA+ attorneys, and attorneys with disabilities advancing and becoming partners in law firms.⁹

Making matters worse, it is widely expected that the global economy is approaching another recession, spurred at least in part by the novel coronavirus pandemic. Economic recessions have been disastrous for historically underrepresented associates at law firms. For example, the layoffs and pay cuts during the Great Recession disproportionately affected women and Black associates.¹⁰ Numerous commentators have noted that the total number of Black associates at law firms only recently returned to pre-Great Recession levels. The number of Black women associates has not recovered.¹¹

These conditions make judicial clerkships all the more valuable now. To be sure, the hiring of judicial clerks from traditionally underrepresented demographics will not fix these problems or even guard against them. But it’s also undeniable that a judicial clerkship opens doors and provides a valuable foundation for an attorney’s practice. Federal judges hire around 1,200 law school graduates as judicial clerks each year.¹² Some hire attorneys with work experience. This is not an insignificant number of attorneys. This experiment will be worth it if the ranks of judicial clerks are diversified even a little by judges committing to the Judicial Rule.

Opportunities and Challenges of Creating a Judicial Application of the Rule

Federal courts and judges have already advanced bold and thoughtful practices for creating a diverse, inclusive, and welcoming justice system.

Numerous judges have made public statements in support of promoting diversity in federal practice and within the federal judicial clerk ranks. For example, Hon. James Donato of the Northern District of California recently denied a petition to appoint class counsel because of “concern[s] about a lack of diversity in the proposed lead counsel.”¹³ Regarding law clerks specifically, at a 2014 symposium at Marquette Law School, Hon. James Wynn Jr. of the Fourth Circuit noted that he “take[s] diversity very seriously” in law-clerk hiring.¹⁴ In her congressional hearing, nominee for the Southern District of California Shireen Matthews testified that “her clerkship ‘changed the trajectory’ of her career and that she would focus on making sure her clerks were from diverse backgrounds.”¹⁵

Nevertheless, there are obvious challenges to creating an effective version of the Judicial Rule. One challenge is the same as that advanced by opponents of higher education institutions with affirmative-action plans: the notion that certain institutions must operate as a meritocracy. (Query whether any higher education institutions actually admit students based strictly on merit.) Right or wrong, in law clerk hiring, having strong grades from a top tier law school most oftentimes conveys merit. There is nothing wrong with judges wanting to hire clerks who have demonstrated intellectual rigor and strong critical-thinking skills.

Relatedly, some judges prefer candidates who have particular academic backgrounds, whether in undergraduate or law school. Some judges prefer candidates with ties to the area where their courts are located. Other judges prefer candidates who play the saxophone, were student-athletes, or moonlight as stand-up comics. Taking any combination of these factors, the point is that judges understandably want to hire clerks who have a sincere interest in clerking for them and with whom they feel they can work in close proximity for a year or more. Some folks don’t think one of those factors should be a candidate’s membership in a historically underrepresented demographic.

Another challenge is the efficacy of this sort of practice. As mentioned before, the Rooney Rule has had mixed results. Despite its popularity, the Mansfield Rule™ is merely voluntary, and, as noted above, the legal profession remains one of the least diverse professions in the nation. In a published study of these practices, the authors concluded that a candidate pool must have more than one woman in it to have a statistically significant chance that a woman will be hired for the position.¹⁶

These are real challenges. But they are one side of the coin; opportunity is the other. For the merit-based challenge, even taking all of those criteria into account, there will still be more than enough qualified and sincerely interested candidates for most judges. Judges following the Judicial Rule can therefore help dispel the myth that an affirmative-action type program somehow promotes underqualified candidates. For the efficacy challenge, increased judicial-clerk diversity is not the only measurement of success. Instead, federal judges committing to the Judicial Rule create valuable awareness, conversation, and credibility around the need to diversify the legal profession.

These opportunities are enough to warrant a trial run of the Judicial Rule. And that trial run should be something that fans and foes of NFL can get behind.

Endnotes

¹ For convenience, I will refer to this proposal as the “Judicial Rule” for the remainder of this column.

² Allyson Corbo and Rachel Gaddes, Strategies to Increase Diversity in the Civilian Sector: Applications and Effectiveness of the Rooney Rule and Similar Approaches, Insight Policy Research (June 7, 2017), https://dacowits.defense.gov/Portals/48/Documents/General%20Documents/RFI%20Docs/June2017/Insight%20RFI%204.pdf?ver=2017-06-07-221647-040.

³ Diversity Lab, Inc., Hackathons, https://www.diversitylab.com/hackathons/ (last visited Nov.16, 2020).

⁴ Diversity Lab, Inc., Mansfield Rule 3.0 Certified Firms, https://www.diversitylab.com/pilot-projects/mansfield-rule-3-0/ (last visited Nov. 16, 2020)

⁵ Diversity Lab, Inc., Mansfield Rule 4.0, https://www.diversitylab.com/mansfield-rule-4-0/(last visited Nov. 16, 2020)

⁶ Id.

⁷ Id.

⁸ Lisa Kpor, Katherine Earle Yanes, and Tara Norgard, Diversity & Inclusion: An Imperative for the FBA, The Federal Lawyer, Jan./Feb. 2020 at 9, https://www.fedbar.org/blog/magazine/janfeb-2020/.

⁹ Id.

¹⁰ Meghan Tribe and Stephanie Russell-Kraft, Virus Crisis Could Be Big Test of Law Firms’ Diversity Efforts, Bloomberg Law, (Apr. 27,

2020), https://news.bloomberglaw.com/us-law-week/virus-crisiscould-be-big-test-of-law-firms-diversity-efforts.

¹¹ National Association for Law Placement, Inc., 2019 Report on Diversity in U.S. Law Firms, at 1 (Dec. 2019), https://www.nalp.org/uploads/2019_DiversityReport.pdf.

¹² Derek T. Muller, Federal Judicial Clerkship Report of Recent Law School Graduates 2020 edition, at 12 (June 9, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3203644&download=yes.

¹³ In re Robinhood Outage Litig., Case No. 20-cv-01626-JD (N.D.Cal. July 14, 2020), https://www.law360.com/articles/1292150/attachments/0.

¹⁴ David R. Stras, Diane S. Sykes, and James A. Wynn Jr., Panel Discussion: Judges’ Perspectives on Law Clerk Hiring, Utilization, and Influence, 98 Marq. L. Rev. 441 (2014), https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5228&context=mulr.

¹⁵ Nadia Dreid, Republican Sens. Press Judicial Picks on LGBTQ Ruling, Law360 ( June 17, 2020), https://www.law360.com/articles/1279708/republican-sens-press-judicial-picks-on-lgbtq-ruling.

¹⁶ Stephanie K. Johnson, David R. Hekman, and Elsa T. Chan, If there’s only one woman in your candidate pool, there’s statistically no chance she’ll be hired, Harvard Business Review (Apr. 26, 2016), https://hbr.org/2016/04/if-theresonly-one-woman-in-your-candidate-pooltheres-statistically-no-chance-shell-be-hired.

About the Author

Matthew C. Enriquez is a litigation associate in the Financial Markets Practice at Jones Day and is a member of the FBA’s Diversity & Inclusion Committee and the Minnesota Chapter of the FBA. He served as a judicial law clerk for Hon. Donovan W. Frank (D. Minn.) and Hon. John Rodenberg (Minn. Ct. App.). He earned his law degree from the University of Iowa College of Law.

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.