Page 43 - FDCC Insights Spring 2022

We, as employers, should loosen the prejudice we have against people who did not clerk and people who did not get the shiniest clerkship for all races. There are outstanding law graduates who, for whatever reason, did not get the most glimmering clerkship possible. Indeed, one of my former students at William & Mary is going to be one of the finest appellate lawyers in the country in ten years, but he had trouble getting a job at top firms largely because he was “only” clerking on a state supreme court.
My experience at William and Mary further suggests that everyone benefits when hiring firms more creatively assess capability. Each year, I received more applicants from the top 10% of the class than I had spots. Each year, I dedicated myself to selecting at least one person whose grades were average or a little above, but his or her resume and interview indicated a dynamic contributor. In seven years teaching the clinic, I am confident none finished at the bottom of the small class and some finished near the top.
Evaluating people on their talents, rather than on glimmering clerkships, is a race-neutral way of diversifying the practice area and also maximizing the value of hires. Of course, some of the focus
on clerkships is driven by the fact that clients like to see the right clerkships, so I ask that clients, too, deemphasize the need for a clerkship, and instead, focus on the writing and reasoning capabilities of the people they hire for appellate practice. Capability and qualifications correlate, but not perfectly. That
is particularly true in a context where external factors—ones affected by an applicant’s race, gender, socioeconomic status, or whatever else—skew the ability to obtain certain qualifications.
Those of us who have the ears of judges with glimmering clerkship opportunities also should be more aware of diversity when making recommendations. Merit can only get a student so far when applying for a clerkship. Federal appellate judges receive a hundred or more applications from students and graduates eminently qualified (not to mention the hundreds from people who would do the job well, but do not have perfect credentials) for one of their four positions. Naturally, these judges turn to their networks
to distinguish among this large group of well-qualified people who will do an outstanding job as a clerk. Similarly, state appellate judges often rely heavily on their networks in hiring. As a result, clerkships tend to mimic judges’ networks, politically and ethnically.
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