Bench Memos

Judges (and Others) Behaving Badly

The National Law Journal has an article about efforts being made to increase the number of minority law clerks for judges. It’s clear enough that these efforts are not limited to preventing discrimination, of course; rather, race is to be weighed.

I won’t belabor the moral problems raised by hiring with an eye on skin color, but I think it is worth mentioning that this is illegal. 

For starters, judges are state actors, as are government agencies, so there are constitutional problems with their involvement in these efforts. To the extent that nonprofits, also mentioned in the article, are involved, they are likewise prohibited from engaging in racial discrimination by Title VI of the 1964 Civil Rights Act if they get any federal money. Of course, the Supreme Court in its wisdom has interpreted Title VI and the Constitution to allow racial preferences in university admissions, but this “diversity” rationale has never been recognized by the Court in the employment context. 

Most important, Title VII of the 1964 Civil Rights Act has never had a “diversity” exception carved out of it by the federal courts, and it prohibits racial discrimination by federal and state employers, which would include judges. What’s more, it bans discrimination by any “employment agency,” which it defines as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes the agent of such person,” which would cover the nonprofits and others discussed in the National Law Journal article.

To paraphrase Luke 4:23, “Judge, sue thyself.”

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