Federal judges admit to race discrimination in selection of their clerks.

The Supreme Court should keep this in mind when it decides the Harvard case.

A senior partner at a firm I once worked at liked to tell the story of his interview for a clerkship with Justice Hugo Black. At the end of the interview, the partner (as he later became) promised that if selected for the clerkship, he would do everything in his power to help the Justice. Black replied that he didn’t select clerks so they could help him, he selected clerks so he could help them.

To the extent that a judicial clerkship is a favor, we shouldn’t be surprised that, in selecting clerks, some judges are influenced by connections (both Hugo Black and the partner were from Alabama), affinities, and even prejudices. That’s human nature.

However, the law forbids hiring decisions based on certain prejudices because they are to be despised. Foremost among such prejudices are those in favor or against members of a racial group.

Title VII’s prohibition against discriminatory employment decisions does not apply to federal judges; nor would a rejected clerkship applicant be inclined, at the start of his or her career, to sue a judge, in any event. When it comes to employment discrimination, including sexual harassment by the way, judges appear to be above the law.

Nonetheless, it was disheartening, though not surprising, to learn that many federal court of appeals judges, by their own admission, discriminate on the basis of race in choosing their law clerks. Judges, of all people, should adhere to the standards the law sets for the rest of society.

That many judges blithely ignore society’s anti-discrimination dictates is clear from a survey of 50 such judges undertaken by two former judges and a law professor. Of the 50 jurists who participated, only two said that conscious consideration of race is inappropriate.

Most of the judges who participated were appointed by a Democrat. A disproportionate number of them are minority group members themselves. Not surprisingly, these minority judges were the most prone to take race and/or ethnicity into account, according to the survey.

The survey was conducted by two former judges and a law professor. Goodwin Liu, a hard core leftist, was one of the former judges. They undertook the study out of concern that there isn’t enough “diversity” among those who receive prestigious clerkships.

In this context, I think it’s fair to say that most of the judges who agreed to participate were happy to acknowledge their preference for hiring minority. They didn’t see themselves as confessing to a practice that’s unlawful for other employers. If anything, they probably saw themselves as signaling their virtue.

Some judges said they viewed being black or Hispanic as a “plus” when they select among clerkship candidates. But viewing race and ethnicity in themselves as plusses is discrimination on its face.

Some judges said the plusses they assign aren’t for race and ethnicity in themselves, but rather for the value that diversity brings to their chambers. These judges used the same kind of language colleges and universities employ to justify race-based admissions policies.

But while the Supreme Court thus far has accepted the diversity rationale in a college setting (up to a point), this reasoning doesn’t apply to the chambers of a judge, where the mission is not a broad educational one, but rather the cranking out of opinions. Furthermore, the federal bench is diverse enough that judges can rely on their colleagues to hear about the “black experience,” to the extent they think it might be relevant to a case before them.

Whatever the Supreme Court ends up saying about the value of diversity on a college campus, I can’t imagine it upholding a diversity rationale in a small office setting.

Some judges were not at all subtle about their use of race and gender in selecting clerks. One called it an “overall goal” to hire “two women and at least one clerk of color.” This borders on a set-aside — a form of discrimination so blatant that institutions like Harvard steadfastly claim (albeit unpersuasively) to eschew it.

Some judges tried to walk a fine line by couching their preference for blacks as a matter of recruitment only. Black judges in particular talked about the importance of looking beyond elite law schools when they recruit clerks. Said one judge, “diversity doesn’t mean a diminution in quality, it means you have to be willing to look in nontraditional areas.”

There’s nothing wrong with recruiting law clerks at law schools outside, say, the top 20. But judges who select high-performing minority clerks from these schools might be guilty of race discrimination, nonetheless.

This would likely be true, for example, of a judge who passes over the top student at a non-elite law school who happens to be Asian and selects a high-performing but lower-ranked and less accomplished black student from that same school. It would also likely be true if a judge picked the top student at a third-tier law school over the top student at a law school much higher up the food chain.

I’d bet good money that this what some judges are doing in order to satisfy their desire to hire black and Hispanic clerks.

As I said at the outset, judges apparently are free to discriminate on the basis of race in any manner they choose. But this doesn’t mean the study showing that they do has no consequences.

The study confirms that a significant portion of the federal appellate judiciary (the survey encompassed nearly 30 percent of it) strongly favors race-based preferences for certain minority groups. In the post Harvard/UNC environment, some of these judges will be deciding cases challenging such preferences under whatever standard the Court tries to lay down.

Members of the Supreme Court who disfavor race-based preferences should keep this in mind when they decide the Harvard and UNC cases. They should write/sign only opinions that give appeals court judges as little wiggle room as possible in future cases on the subject.