In 2018, newly confirmed Supreme Court Justice Brett Kavanaugh made history when he hired four women to serve as law clerks, marking the first time a Supreme Court Justice hired an all women slate of clerks in the Four-Clerk Era.Footnote 1, Footnote 2 The addition of these women also changed the gender balance of the Supreme Court’s clerk network, with women making up half of the Court’s clerks for the first time in history. Prior to 2018, women had always been underrepresented among Supreme Court clerks. Indeed, in the ten years immediately preceding 2018, women comprised between just 32% and 42% of clerks, and, with the exception of Ruth Bader Ginsburg and Stephen Breyer, the clerks hired by individual justices also tended to be male dominated groups.Footnote 3 The break from this pattern in 2018 was viewed by many with optimism and hope that women’s underrepresentation in these important positions was a thing of the past. As one commentator noted, 2018 was a milestone that “stir[ed] hope of gender parity.”Footnote 4 However, this hope was short lived. In the 2019 and 2020 terms, women’s representation among law clerks dipped and came much closer to previous terms, with women holding 41% and 43% of clerkships, respectively.Footnote 5
Although women remain underrepresented among the nations most prestigious courts, for the last several years women have accounted for roughly half – and sometimes more than half – of all incoming law students, a pattern that also holds at the most elite universities, which frequently serve as “feeders” into Supreme Court clerkships (Kaye and Gastwirth Reference Kaye and Gastwirth2008). Why then do women remain underrepresented in these positions? The answer to this question is important for several reasons. Women’s inclusion as clerks has implications for legal decision-making (Kromphardt Reference Kromphardt2017), as well as women’s access to : legal academia (Redding Reference Redding2003), the most lucrative jobs in the legal profession, roles as litigators before the court (Black and Owens Reference Black and Owens2020), and their potential to be appointed to a judgeship in the future (Badas Reference Badas2020).
While some research has examined the “demand-side” factors that might influence women’s presence as clerks (i.e., the structural factors, gender biases, etc. of the institution and its members that might influence women’s selection as clerks), our understanding of the “supply-side” factors that lead to women’s representation among clerks is lacking. In this article we examine women’s presence in the pool of potential clerks and examine the role that ambition plays in subsequent decisions to apply for clerkships. Borrowing from research on ambition and the decision to run for political office, we argue that women’s underrepresentation among elite law clerks is in part due to a gender gap in what we call clerkship ambition. To test this argument, we introduce results from the Clerkship Ambition Study, a survey of editorial assistants at top law reviews. For reasons discussed later, we conceptualize these editors as a pool of potential clerks.
Our results indicate that there are important gendered differences in ambition to apply for clerkships, but that these differences are contingent on the level and type of court in question. Men are more likely than women to express interest in applying for clerkships with the Supreme Court and Federal Courts of Appeal. However, these differences are not present when examining lower level federal and state courts (courts where women tend to be the best represented). Thus, gendered differences in the application decision calculus vary with the prestige of the position, with women less willing to incur the costs of applying for the most elite clerkship positions. We then examine some of the underlying causes of the gender gap in clerkship ambition. We find that while men and women view themselves as similarly qualified to hold a clerkship, men are more willing to consider applying even when they perceive themselves to be less qualified. Likewise, we find that while men and women report receiving equal amounts of encouragement to apply for clerkships, men are more willing to consider applying with lower levels of encouragement than women. The research presented here adds to a growing body of research related to descriptive representation and the judiciary (Scherer and Curry Reference Scherer and Curry2010; Badas and Stauffer Reference Badas and Stauffer2018, Reference Badas and Stauffer2019; Reference Badas and Stauffer2022 Gleason, Jones, and McBean Reference Gleason, Jones and McBean2019; Hofer and Casellas Reference Hofer and Casellas2019; Gleason Reference Gleason2020), and contributes to the literature on gender and political ambition. We conclude with a discussion of the implications our findings have for the literatures on judicial decision-making, political ambition, and women’s descriptive representation.
Law clerks: Selection and influence
Despite their lack of visibility in the public eye, law clerks play a central role in the judiciary and in shaping case law and jurisprudence. Clerks on the United States Supreme Court help the Justices decide which cases should be granted certiorari, aid the Justice’s in preparation for oral arguments, write bench memos summarizing and framing cases, and even produce the initial drafts of the Court’s opinions. In other judicial institutions, law clerks have similar responsibilities. While clerks are adamant that they “channel” their Justice or judge’s preferences while carrying out their responsibilities (Kenney Reference Kenney2000), existing research demonstrates that law clerks do influence judicial decision-making in many ways. On matters of certiorari, Black and Boyd (Reference Black and Boyd2012) and Benesh, Armstrong, and Wallander (Reference Benesh and Wallander2020) find the Justices closely follow the recommendations of clerks. During oral arguments, the Justices frequently ask questions recommended to them by their clerks (Johnson, Stras, and Black Reference Johnson, Stras and Black2014). On merit decisions, Kromphardt (Reference Kromphardt2015) and Bonica et al. (Reference Bonica, Chilton, Goldin, Rozema and Sen2019) find that the decisions made by Justices are influenced by the ideologies of their clerks. In the case of conservative Justices, Kromphardt (Reference Kromphardt2017) finds that hiring two or more female law clerks makes a Justice more likely to vote liberally in sex discrimination and abortion cases.
Outside the context of the Supreme Court, research on the use of clerks in the lower federal courts and state courts indicate judges rely on their clerks for a wide range of tasks including drafting memoranda and orders that dispose of cases pending before them (Peppers, Giles, and Tainer-Parkins Reference Peppers, Giles and Tainer-Parkins2008; Swanson and Wasby Reference Swanson and Wasby2008). This body of scholarship indicates that clerks are not neutral actors. Rather, their experiences and identities inform their behaviors and ultimately shape judicial outcomes across multiple indicators. Thus, understanding who is – and who is not – included in the pool of potential clerks is of critical importance for our understanding of judicial outcomes.
Beyond the influence these positions have on judicial decision-making, clerkships also open up a wide range of opportunities for individuals after their clerkship has concluded. Clerks are heavily recruited by major law firms, able to secure large bonuses (Zaretsky Reference Zaretsky2018), have more opportunities in legal academia (Redding Reference Redding2003), and often go on to be litigators before the court (Black and Owens Reference Black and Owens2020). Moreover, holding a clerkship can signal a potential to be appointed to a judgeship in the future (Badas Reference Badas2020). Thus, in many ways, clerkships represent a pathway to the legal elite. As a result, diversity among clerks not only influences the decisions made by a court during a particular term but has downstream ramifications for representation in other elite legal positions.
Considering the responsibilities and influence law clerks have, as well as the opportunities clerkships open for individuals, it is important to understand the dynamics of who applies for such positions. Hiring law clerks is generally a decentralized process in which applicants apply directly to the judge they wish to work with. While the process itself is decentralized, it does tend to follow a common format. Individual judges, along with their current clerks, review applications and decide which applicants to interview. After interviews, the judges will make a decision on who to hire.Footnote 6 Typically, law clerks will serve one year terms and then move on to other opportunities. Some individuals will serve as clerks on one court (i.e., the Federal District Court) and then the next year move on to a different court (i.e., The Circuit Court of Appeals). Student applicants will apply for clerkships with many judges across institution to increase the odds of obtaining a position.
Women’s underrepresentation in clerkships
Given the central role that clerks play in the judiciary, questions related to diversity and inclusion are of critical importance. For the past several years, women have achieved parity – and in some cases more than 50% of positions – in incoming law classes (Kaye and Gastwirth Reference Kaye and Gastwirth2008; Jaschik Reference Jaschik2016; Rowe Reference Rowe2018). This is a trend observed nationally, as well as among the most elite law programs. Despite these advances, women remain underrepresented in the most prestigious clerkships (Kaye and Gastwirth Reference Kaye and Gastwirth2008; Szmer, Kaheny, and Christensen Reference Szmer, Kaheny and Christensen2014).
Although women now hold a majority of clerkship positions in state courts, representation decreases as the level and prestige of the court increases (NALP N.d.). In their most recent survey of clerks, the National Association for Law Placement found that while women’s representation among clerks for District Courts had increased overtime, there was still a 10% gap between men and women, with men holding 55% of these clerkships. Moreover, among Supreme Court Clerkships, women typically hold only between about 30% and 40% of these positions (Kaye and Gastwirth Reference Kaye and Gastwirth2008; NALP N.d.). That women remain underrepresented as clerks in the upper echelons of the judiciary is problematic, as these positions have the broadest and most significant influence on American jurisprudence. Beyond normative concerns related to justice and fairness, women’s underrepresentation among American clerks also has ramifications for women’s later legal careers. Thus, women’s absence from the most prestigious clerkships has important downstream ramifications for women’s descriptive and substantive representation in the judiciary and the broader legal culture and environment.
Some have pointed to gender bias in the application process and selection mechanisms as possible causes behind the dearth of women clerks. Indeed, there is some evidence to support this. Kaye and Gastwirth (Reference Kaye and Gastwirth2008) demonstrate that Supreme Court Justices hire fewer female clerks than would be expected based on the number of women graduating from elite law schools. Moreover, they engage in a discussion of a system in which women’s rate of attrition between rungs on the career ladder is greater than men’s. While an understanding of these factors and their influence on women’s representation among elite clerks is certainly important, they do not provide the full explanation for women’s underrepresentation in these positions if women are less likely to consider applying for clerkships in the first place. In other words, while there are “demand-side” factors influencing women’s representation in clerkships, “supply-side” considerations may also be at play.
A large body of scholarship on women’s political ambition has consistently found that compared to men, women are less likely to report pursuing political candidacies, or even considering these candidacies in the first place (Fox and Lawless Reference Fox and Lawless2004; Fulton et al. Reference Fulton, Maestas, Maisel and Stone2006; Williams Reference Williams2008; Lawless and Fox Reference Lawless and Fox2010; Fox and Lawless Reference Fox and Lawless2011, Reference Fox and Lawless2014a and Reference Fox and Lawless2014b; Schneider et al. Reference Schneider, Holman, Diekman and McAndrew2016; Crowder-Meyer Reference Crowder-Meyer2018). In the analysis that follows, we examine whether a similar ambition gap is at play among the pool of potential law clerks. Discerning whether an ambition gap exists among the individuals best positioned to hold clerkships is essential to understanding women’s representation in these positions. Understanding the interaction of supply and demand-side factors on women’s representation as clerks not only provides a better sense of the gender dynamics that shape this representation, but also provides insights into what solutions will be most effective at increasing women’s representation in these positions.
Drawing on the literature on political ambition for elected office, we examine whether similar dynamics are at play with respect to clerkships. While we draw extensively on this literature, we note that there are several important distinctions between law clerks and political candidates. Unlike elected officials, law clerks do not participate in public campaigns in order to obtain their positions. Thus, some explanations for the gender gap in politician ambition – such as electoral aversion (Kanthak and Woon Reference Kanthak and Woon2015), or a belief that voters will hold women to a higher standard (Fox and Lawless Reference Fox and Lawless2004; Lawless and Fox Reference Lawless and Fox2010) – are less relevant in our context. Moreover, while scholars have noted that there are many potential paths to elected office – and that the gender dynamics of these pathways has implications for women’s emergence (Carroll and Sanbonmatsu Reference Carroll and Sanbonmatsu2013; Crowder-Meyer Reference Crowder-Meyer2018) – the path to a clerkship is typically much more routinized and well defined. Indeed, some have argued that the more defined path to judicial office diminishes the ambition gap by removing some of the uncertainty in the process (Williams Reference Williams2008); a similar dynamic may be at play among potential law clerks.
These differences not withstanding, the logic of the ambition gap literature still offers us a useful starting point into our exploration of some of the factors underpinning women’s underrepresentation as clerks. Other factors that have been shown to influence the gender gap in political ambition relate to socialization. Socialization early in life presents politics through a masculine lens sending powerful messages about who does and does not belong in politics (Campbell and Wolbrecht Reference Campbell and Wolbrecht2006; Wolak and McDevitt Reference Wolak and McDevitt2011; Lay et al. Reference Lay, Holman, Bos, Greenlee, Oxley and Buffett2019). While not elected, clerks do work in the judiciary, which is an inherently more political endeavor than other legal occupations. Thus, the same socialization factors that influence the formation of candidate ambition may also shape ambition for political-legal roles (i.e., judgeships, clerkships, etc.). Moreover, elite clerkships – like elected office – remain male dominated (Kaye and Gastwirth Reference Kaye and Gastwirth2008; NALP N.d.). This domination may have deleterious effects on women’s ambition by reinforcing the view that the judiciary represents a masculine space (Gleason, Jones, and McBean Reference Gleason, Jones and McBean2019; Gleason Reference Gleason2020).
Moreover, the lack of women in the most elite clerkship positions may create a belief that gender bias exists in the application process and that women will have a more difficult time obtaining these positions, thus diminishing women’s desire to apply. We expect that like potential candidates, potential law clerks are likely to consider the likelihood of success when they decide whether or not to undergo the application process (Fulton et al. Reference Fulton, Maestas, Maisel and Stone2006; Williams Reference Williams2008; Fox and Lawless Reference Fox and Lawless2011). While men and women may come to the application process with objectively equal levels of qualification, the decision-making calculus that they employ may vary, and these differences may have important implications for who applies for – and thus ultimately obtains – a clerkship. In the section that follows, we introduce results from the Clerkship Ambition Survey, which allows us to test whether an ambition gap exists among the pool of potential law clerks.
The Clerkship Ambition Survey
To determine whether there are gender differences in clerkship ambition, we developed a survey of potential clerk applicants. To conceptualize and define the pool of potential clerks, we gathered information on law reviews at the top seventy-five law schools.Footnote 7 Out of these seventy-five law reviews, thirty-three had publicly available university databases with student contact information.Footnote 8, Footnote 9 Student editors at these thirty-three schools represent our sampling frame. We believe a sample of students from top programs is justified for two reasons. First, most judicial clerkships go to the top students who are from the top ranked law schools (Redding Reference Redding2003; Ward and Weiden Reference Ward and Weiden2006). Further, typically only the best students make law review (Cotton Reference Cotton2005). Thus, our sample represents the best students at the top law programs. Second, when selecting clerks, judges have specifically mentioned that they seek candidates with strong writing skills and often use experience on the law review as a indicator of this (Ward and Weiden Reference Ward and Weiden2006). Thus, our sample represents many of the attributes that judge’s look for in clerks.
To be sure, there are other potential avenues to clerkships, and serving on a law review is not necessarily the only path to a clerkship. For example, students on moot court or certain student groups, such as the Federalist Society or American Constitution Society, may position themselves well for a clerkship. However, based on the two points made prior, we believe law reviews are a good starting point for analyzing clerkship ambition and likely capture a large collection of potential clerks. Future studies should examine how ambition and gendered ambition functions in other potential applicant pools.Footnote 10
Based on our sampling criteria, our potential pool of respondents were 1,672 students. These students were emailed a recruitment letter stating our intention to survey law students about potential career choices. To encourage participation, we randomly selected twenty respondents to receive a $25 Amazon.com giftcard. Periodic follow-up emails were sent encouraging individuals to participate over the next three months. In total, 234 students completed our survey, producing a response rate of 14%. More information about the study and a description of the sample are included in the appendix.Footnote 11
Ambition for clerkships
Two questions were used to measure clerkship ambition among respondents. The first asked whether respondents had applied to a clerkship. The second asked whether they planned to apply for a clerkship in the future. Respondents were asked each of these two questions for the following institutions: the US Supreme Court, the US Circuit Court of Appeals, the US District Court, a state superior court, and any other state court. We disaggregate ambition by institution because women’s representation among clerks varies considerably by institution type. For each institution, if either question is answered “yes,” the indicator for the institution is coded 1, and if both questions are answered “no” then the indicator is coded 0. These questions capture two facets of ambition: nascent and expressed ambition. Nascent ambition refers to an individual’s inclination to consider applying for clerkship, regardless of whether or not they go on to actually do so (Fox and Lawless Reference Fox and Lawless2005). Expressive ambition in contrast refers to the actual act of applying for a clerkship. Including both forms of our ambition in our measure is important because it allows us to capture how ambition manifests in the short- and long-term career goals of our participants. In many cases respondents will not receive the most elite clerkships directly out of law school (i.e., many Supreme Court clerks first clerk on the Circuit Court of Appeals). By including a question about future plans, we are able to capture long-term ambition. Although students may not necessarily become a Supreme Court clerk immediately following graduation, having ambition to hold one of these posts in the long run may have important ramifications for career decisions and the paths students choose to take. Further, many of the student editors are second year law students, meaning they will not yet have had the opportunity to apply for clerkships.Footnote 12
In the analysis that follows, we examine whether female law students are less likely than their male colleagues to express ambition for judicial clerkships. However, there are other factors that must be considered when modeling an individual’s decision to apply – or not apply – for a clerkship. To account for these factors, we include measures of embeddedness in the legal community, interest in legal affairs, law school tier, and demographic characteristics.
To measure student embeddedness in the legal community, we asked about membership in various types of student groups.Footnote 13 Accounting for this embeddedness is important because being embedded in the law school environment gives students more information about opportunities, such as clerkships. Finally, we asked students how closely they follow legal affairs and the development of law outside the context of law school (captured by a four-point scale ranging from “not closely” to “very closely”), as an interest in the law may also influence willingness or interest in applying for clerkships.
The law school a student attends may also influence whether or not they have ambition for clerkships. Most clerkships go to students at the highest rated law schools (Redding Reference Redding2003). This may create a recursive process in which students at the highest ranked law schools have ambition and apply for clerkships while those at the lower ranked law schools have less ambition and are less likely to apply. To capture this dynamic, we control for the tier of law school a student is attending. We create a categorical variable that captures the tier of law school by groups of ten. For example, tier 1 is schools ranked 1–10, tier 2 is schools ranked 11–20, and this process follows until tier 5 is defined as any remaining school above a rank of 50.Footnote 14
Finally, we included controls for whether students reported their school hosting professional development events, such as clerk workshops, students’ year in their program,Footnote 15 student age, race, and political ideology.
Using these variables, we estimate a logistic regression model predicting ambition for judicial clerkships for each type of court. The results are presented in Table 1. Column 1 of Table 1 demonstrates that women have significantly less ambition than men when it comes to ambition for a Supreme Court clerkship. While the probability of a man expressing ambition for a Supreme Court clerkship is 0.197, the probability of a women expressing ambition for a Supreme Court clerkship is just 0.066, creating a 0.13 (p < 0.05) ambition gap for Supreme Court clerkships. Column 2 of Table 1 reaches a similar conclusion regarding ambition for clerkships in the Circuit Court of Appeals. A male law student has a 0.627 predicted probability of expressing ambition for a clerkship on the Circuit Courts of Appeals, whereas a woman law student has a 0.495 predicted probability of expressing ambition, producing an ambition gap of 0.132 (p < 0.05). Columns 3 through 5 of Table 1 Footnote 16 demonstrate that the gender gap between men and women in ambition for clerkships for the District Courts, state superior courts, or other state court positions is not statistically distinguishable from zero. We summarize the gender gap in clerkship ambition across institution in Figure 1.
Table 1. Regression Table
Note: Standard errors in parentheses.
* p < 0.05, ** p < 0.01, *** p < 0.001
Figure 1. Gender Gap in Ambition for Clerkships. Values represent the difference in the predicted probability of a woman displaying ambition relative to a man. The solid line at 0 represents no effect of gender on ambition.
Overall, our results indicate that there are differences between women and men in their ambition for judicial clerkships. However, those differences are not universal across the hierarchy of available clerkships. Instead, the differences are isolated to the most prestigious positions, specifically the Supreme Court and the Court of Appeals.Footnote 17
Explanations for the gender gap in clerkship ambition
Having uncovered evidence of a gender gap in clerkship ambition in the previous section, we now turn our attention to understanding some of the mechanisms that shape this gap. Again, drawing on the political ambition literature, we examine whether – and to what degree – men and women in the pool of potential law clerks view their qualifications for the position differently and whether prospective clerks report differences in encouragement to apply. We find that men and women view their qualifications similarly and report similar levels of encouragement. However, we do find some evidence that qualifications and encouragement have a stronger influence on men’s clerkship ambition compared to women.
Differences in perceived qualification
One potential explanation for the differences in ambition for clerkships at the Supreme Court and Court of Appeals could be differences in men’s and women’s self-perceived qualifications for these positions. The pool of male respondents in our sample was similar to the pool of female respondents in terms of background, number of extracurricular activities, and legal interest. Based on these metrics, we have no reason to believe a priori that men and women respondents in our sample significantly differ in terms of their actual qualifications for clerkships. Further bolstering this point, Clydesdale (Reference Clydesdale2004) demonstrates that female and male law students perform comparably in terms of grades and class ranking and ultimately pass the bar at similar rates. While we have no evidence that men and women in the sample differ in terms of objective criteria, that does not necessarily mean that there are not meaningful differences in perceived qualifications across the two groups. These potential differences may shed light on the gender gap in clerkship ambition.Footnote 18
Indeed, ample evidence suggests that in professional and political settings men perceive themselves to be more qualified than similarly situated women (Fox and Lawless Reference Fox and Lawless2004; Fulton et al. Reference Fulton, Maestas, Maisel and Stone2006; Williams Reference Williams2008; Lawless and Fox Reference Lawless and Fox2010; Fox and Lawless Reference Fox and Lawless2011, Reference Fox and Lawless2014a, Reference Fox and Lawless b). Men, for example, tend to rate their academic skills as higher than women, despite no objective gaps in performance (Beyer, Riesselmann, and Warren Reference Beyer, Riesselmann and Warren2002; Cooper, Krieg, and Brownell Reference Cooper, Krieg and Brownell2018). As Fox and Lawless (Reference Fox and Lawless2011) note, these tendencies continue later in life as well, particularly in fields that remain male dominated (see also Tsui Reference Tsui2010). Indeed, in numerous studies of professionals, men are shown to be more likely to negotiate increases in salaries, have higher expectations of peak-pay, are more likely to apply for upper-level positions, and less likely to begin their careers in entry-level positions than similarly situated women (Babcock and Laschever Reference Babcock and Laschever2009; Pfeifer and Stephan Reference Pfeifer and Stephan2018). Literature on political ambition likewise finds that women tend to view themselves as less qualified to hold political office than similarly situated men (Fox and Lawless Reference Fox and Lawless2004; Fulton et al. Reference Fulton, Maestas, Maisel and Stone2006; Williams Reference Williams2008).
A similar gap in perceived qualifications may likewise influence the gender gap in clerkship ambition we observe in our sample. Thus, if a gender gap in perceived qualifications does exist, this could contribute to the gender gap in ambition. To test for differences in perceived qualification, we estimate an ordinary least square regression predicting perceived qualifications for each institution as a function of gender and the other variables in Table 1. To measure perceived qualifications, we asked participants how qualified they felt for a clerkship with each institution. This measure was a four-point scale ranging from “not qualified at all” to “very qualified.”Footnote 19 These results are presented in Table 2. Our results suggest that at the level of the Supreme Court and the Court of Appeals there are no differences between men’s and women’s perceived qualifications for clerkships. In other words, after controlling for other factors, men and women in our sample view themselves to be equally qualified to hold a clerkship. We also observe no gender differences in perceived qualifications for district or state courts.
Table 2. OLS Regression: Perceived Qualification
Note: Standard errors in parentheses.
* p < 0.05, ** p < 0.01, *** p < 0.001
Overall, our results suggest that men and women view themselves as similarly qualified to hold a clerkship in the context of most courts. This is a finding that diverges from previous work on political ambition (Fox and Lawless Reference Fox and Lawless2004; Lawless and Fox Reference Lawless and Fox2010), and may be cause for optimism, as it suggests that women do not underestimate (nor men overestimate) their levels of qualification relative to men (women). One potential explanation for this divergence is that unlike potential candidates, potential law clerks have “objective” indicators of their own qualification, such as LSAT scores, class rank, GPA, the fact that they serve on the law review, etc. The presence of these (relatively) clearer signals may explain why men and women in our sample express similar subjective views of their own qualifications.
Differences in encouragement received
Results from the preceding analysis suggest the gender gap in clerkship ambition is not shaped by differences in men and women’s self-perceived qualifications. However, a second potential factor that could be at play for the ambition gap for Supreme Court and Court of Appeals clerkships is that men and women may be encouraged to apply for these positions at different rates.
Research on political ambition indicates that being encouraged to run for office is often an important predictor in whether or not individuals will ultimately consider a political run (Fox and Lawless Reference Fox and Lawless2004; Williams Reference Williams2008; Lawless and Fox Reference Lawless and Fox2010). Research on the judiciary – more specifically judicial elections – likewise shows that being encouraged to run for judicial vacancies plays a pivotal role in determining which lawyers attempt to make the transition from practicing to the bench (Williams Reference Williams2008).
We explore potential gender differences in encouragement for a few reasons. First, although men and women may not display differences in their beliefs about their own levels of qualifications, that does not mean they are viewed as equally qualified among their peers, professors, and professional connections. Evidence from business and economics, for example, finds that women are often viewed as less able to perform certain tasks by prospective employers than similarly situated men, despite no objective differences in skills (Coffman, Exley, and Niederle Reference Coffman, Exley and Niederle2018). Education research similarly suggests that teachers are more likely to view their male students as possessing math and science skills than female students, despite a lack of objective indicators (Riegle-Crumb and Humphries Reference Riegle-Crumb and Humphries2012). Evidence from political campaigns also shows that female candidates must be higher quality than men in order to achieve the same electoral results, indicating that voters similarly undervalue women’s qualifications for political office (Anzia and Berry Reference Anzia and Berry2011; Fulton Reference Fulton2012, Reference Fulton2014). Similar phenomena maybe at play among potential clerks; if women are viewed as less qualified – even if objectively they are equally or possibly more qualified – than similarly situated men, we would expect them to report receiving less encouragement to pursue a clerkship.
A second related reason to suspect that a gender gap in encouragement may be at play is that the most elite clerkships remain male-dominated spaces (Kaye and Gastwirth Reference Kaye and Gastwirth2008; NALP N.d.). This may lead to differences in encouragement as law-school faculty, legal professionals, peers, and others familiar with the profession may be more likely to encourage individuals who are perceived as the best fit for the current institution (i.e., other men). Moreover, the majority of faculty at elite law schools also continue to be men (McGinley Reference McGinley2009). These faculty might be more likely to encourage students who share similar characteristics to pursue elite opportunities. In this manner, the encouragement process may mirror political recruitment, where male-dominated party networks are more likely to recruit male candidates (Sanbonmatsu Reference Sanbonmatsu2002; Fox and Lawless Reference Fox and Lawless2011; Crowder-Meyer Reference Crowder-Meyer2013). Based on this evidence, examining whether an encouragement gap exists in our sample should help us to further understand the underpinnings of clerkship ambition.
To test for differences in encouragement received, we estimate an OLS regression predicting encouragement as a function of gender and the other control variables discussed in Table 1. To capture encouragement, we asked participants whether a set of individuals had ever encouraged them to apply for a clerkship.This set included the following: a judge, a professor, a faculty adviser, a law school administrator, an internship supervisor, a classmate, family member, or anyone else.Footnote 20 Participants were able to respond “yes” or “no” for each individual. Responses were then scaled together using a single parameter item response model. The end result is a continuous measure capturing the degree to which respondents were encouraged to consider a clerkship, which we rescale to range from 0 to 1.Footnote 21
The results are presented in Table 3. Our results indicate that there is not a gender gap in level of encouragement reported between men and women in our sample. Women are predicted to have an encouragement score of 0.51 while men are predicted to have an encouragement score of 0.49 (diff = 0.02; p = 0.505). Thus, it does not appear the difference in encouragement shapes the contours of the ambition gap. This finding again diverges from the literature on political candidates. One possible explanation for the lack of an “encouragement gap” is schools may have an interest in having statistics on alumni placement that show the institution does not just place white men in prestigious positions. As diversity and inclusion increasingly become a focus in higher education this interest might become even more heightened. If this is the case, we would expect formal recruitment efforts to be especially interested in encouraging women to apply for clerkships, and these efforts would be captured by our encouragement measure. However, we emphasize this is just one possible reason for our findings, and more research would be needed to fully evaluate this hypothesis.
Table 3. OLS Regression: Encouragement
Note: Standard errors in parentheses.
* p < 0.05, ** p < 0.01, *** p < 0.001
A higher standard?
The preceding analyses do not indicate that women perceive themselves to be any more or less qualified for a clerkship than similarly situated men. Nor do they perceive different levels of encouragement to consider applying to these types of positions. On face, these results are somewhat encouraging. However, we cannot dismiss the role of self-perceived qualifications or encouragement play in shaping the ambition gap without examining how these factors interact with respondent sex. In other words, while women and men perceive themselves as equally qualified and receive equal levels of encouragement, they may weigh qualifications and encouragement differently.
Studies of political candidates find that even when holding self-perceived and objective qualifications constant women are less optimistic about the possibility of success than men (Fox and Lawless Reference Fox and Lawless2004, Reference Fox and Lawless2005). A similar phenomena could be at play among potential law clerks, where women perceive a system that is not open to them and one in which they are less likely to be accepted, which could decrease ambition (Williams Reference Williams2008). If this is the case, women may be more pessimistic about the competitiveness of their applications, in which case we would expect that women would need to feel they were especially qualified for the position before manifesting ambition. Indeed, Fox and Lawless (Reference Fox and Lawless2004) find that self-perceived qualifications have a different influence on political ambition among men and women, with women essentially holding themselves to a higher standard of qualification before considering a run for office. Likewise, the perception of a potentially masculine institution – or gender-biased selection process – may mean that women require more encouragement to apply before this encouragement translates to ambition (i.e., Fox and Lawless Reference Fox and Lawless2004). In the analyses that follow, we examine whether self-perceived qualifications and encouragement influence the decision-making process of men and women differently, allowing us to have a better sense of how these factors do or do not influence the gender gap in clerkship ambition.
To determine whether women and men weigh qualifications differently, we re-estimate the logistic regression models presented in Table 1 with an interaction between respondent gender and perceived qualifications. If women and men weigh these considerations differently, such that men require less of themselves before deciding to apply, we would expect perceived qualifications to have a larger impact on men’s ambition, thus increasing the size of the ambition gap. The results of these models are presented in Table 4 and Figure 1.
Table 4. Logit Regression: Female Qualification Interaction Table
Note: Standard errors in parentheses.
* p < 0.05, ** p < 0.01, *** p < 0.001
Figure 2 displays the gender gap for each institution across the range of levels of perceived qualifications. Negative values indicate an ambition gap favoring men, while positive values indicate an ambition gap favoring women. Due to our small sample size and the statistical power required to properly estimate interactions, our results comparing men and women across varying levels of qualification should be interpreted with caution and viewed as suggestive (McClelland and Judd Reference McClelland and Judd1993). However, even with this in mind, we do find some evidence that women and men weigh qualifications differently at the Supreme Court and Court of Appeals but not the other courts. At the level of the Supreme Court, women who indicated they were very qualified (p < 0.05), qualified (p < 0.01), and somewhat qualified (p < 0.01) were significantly less likely to report ambition for a clerkship than men with the same level of perceived qualifications. At the level of the Court of Appeals, women who indicated that they were somewhat qualified (p < 0.05) and qualified (p = 0.08) were less likely to express ambition for a clerkship. These results are suggestive of the fact that men receive a bigger boost to their ambition as their perceived levels of qualifications increase.Footnote 22 While women also express higher levels of ambition as their perceived qualifications increase, these increases are not of the same magnitude as men, thus leading to the increased size of the ambition gap.
Figure 2. Gender Gap in Clerkship Ambition by Perceived Qualifications. Solid line at 0 indicates no differences in the marginal effect between men and women.
To determine whether women and men weigh encouragement differently, we re-estimate the logistic regression model presented in Table 1 with an interaction between female and levels of encouragement. Similar to the previous analysis, if women and men weigh encouragement differently – such that men require less encouragement to consider applying to a clerkship – we would expect encouragement to have a larger impact on men’s ambition, thus increasing the size of the ambition gap. The results to this logistic model are presented in Table 5 and Figure 3.
Table 5. Logit Regression: Ambition w. Encouragement Interactions
Note: Standard errors in parentheses.
* p < 0.05, ** p < 0.01, *** p < 0.001
Figure 3. Gender Gap in Clerkship Ambition by Encouragement Received. Dashed line at 0 indicates no difference in marginal effect between men and women.
As before, because we are estimating an interaction with a relatively small sample size, our results should be interpreted as suggestive, and we encourage future research on this topic. However, these results do still provide important insights into some of the possible mechanisms underlying the ambition gap. Here, we see evidence that suggests women and men do weigh levels of encouragement differently at the level of the Supreme Court and to an extent at the Court of Appeals. Figure 3 shows that at levels of encouragement between 0.36 and 0.91 women are significantly less likely to report ambition (p < 0.05) for a Supreme Court clerkship. This would suggest that at the highest levels of encouragement, women are less likely to express ambition for a Supreme Court clerkship. In total, 66.7% of observations fall into this range. Figure 3 also suggest that at levels of encouragement between 0.26 and 0.57 women are significantly less likely to expression ambition (p < 0.05) for a Court of Appeals clerkship than men. In total, 42% of observations fall into this range. For the other courts, we do not observe evidence of differences in the relationship between encouragement and ambition. While women and men report receiving equal levels of encouragement, results from this section suggest that in some instances encouragement has stronger implications for men’s clerkship ambition than women’s. However, given our caveats about sample size, future research is needed to fully verify this finding.
Our primary results uncovered that women were less likely than men to express ambition for clerkships on the Supreme Court and the Court of Appeals. Our secondary analysis has attempted to uncover why women express less ambition for these positions. The results presented in Tables 4 and 5 and Figures 2 and 3 provide two possible explanations. While women and men perceive themselves to be equally qualified for clerkships, our results suggest that woman hold themselves to a higher standard and are less likely to express ambition even when they perceive themselves as holding the necessary qualifications for the most elite clerkships. Likewise, while men and women report receiving similar levels of encouragement to apply for these positions, more encouragement is required before women report having ambition.
Family considerations
A final factor that may influence clerkship ambition is family considerations. While family structure and socialization does not always influence political ambition (see Fox and Lawless Reference Fox and Lawless2004), in some contexts these factors do serve to diminish women’s political ambition (Fox and Oxley Reference Fox and Oxley2003; Fulton et al. Reference Fulton, Maestas, Maisel and Stone2006 Crowder-Meyer Reference Crowder-Meyer2018). While clerks do not campaign for office, the job is time intensive and demanding. Moreover, in the case of the Supreme Court and the Circuit Courts – the institutions for which we find the most consistent results – it is likely candidates would need to relocate to take up the position. In the case of Supreme Court clerkships, successful applicants will also typically have held other clerkships with lower level courts. Together, this means that those aspiring to the highest caliber clerkships will likely need to relocate multiple times in a relatively short period of time. Given these realities, potential female clerks may weigh family considerations (or future family considerations) into their decision to apply for elite clerkships.
We examine this possibility in supplemental analyses included in the appendix. Unfortunately, The Clerkship Ambition Study does not allow us to fully evaluate the role of family considerations on clerkship ambition because it does not ask respondents to report how important their partner’s career options, family planning, issues related to childcare, etc. are to them or the extent to which these factors influence their own career decisions. However, the survey does include a question asking how important it is to respondents that their job be close to family and information on whether the respondent has a partner. We use these measures as a rough proxy for family considerations, but recognize this is imperfect for the reasons previously stated.
Results from this analysis are available in the supplemental materials. We find that men and women in the clerkship eligibility pool were no more likely to report proximity to family as being important to them. Moreover, when examining how these considerations influence ambition across the various levels of courts included in our analysis, we find no evidence that men and women weight these considerations differently. Thus to the extent these factors influence the likelihood that our respondents will go on to apply for clerkships, it appears to play a similar role for men and women, thus doing little to shape the ambition gap we observe.
Again, we urge readers to interpret these results with caution. The measures we drawn on in the supplemental analysis are imperfect and likely to not capture the range of family considerations that enter into the decision-making process of potential clerks. It could well be the case that there is some other element of family considerations not captured by our measures that does influence the ambition gap. Moreover, while we do not find evidence of differences in family considerations among respondents in our sample, it could very well be the case that such differences emerge after respondents graduate from law school and begin their careers. Thus, while findings suggest that family considerations are not a factor in clerkship ambition among law students, that does not mean these considerations do not later influence the decision-making process of applicants.
Conclusions and implications
Women’s continued underrepresentation among the most elite law clerks may have important ramifications for jurisprudence and case law, the substantive representation individuals receive from the judiciary, and women’s descriptive representation in other elite legal positions. Despite the implications of women’s underrepresentation in elite clerkships, our understanding of why gender inequalities remain in these positions is underdeveloped. While some scholars have pointed to a potentially biased selection process and other structural features as reasons for the lack of women clerks, in this article we argued that understanding women’s – and men’s – ambition to hold these positions in the first place must also be considered. Drawing on the literature on the gender gap in political ambition, we argued that one reason for women’s underrepresentation in elite clerkships is that men are more likely to consider opting into the selection process than similarly situated women.
To address this question, we introduce data from the Clerkship Ambition Study, which was fielded to a sample of potential law clerks – conceptualized as those currently serving as staff on an elite law review. Results from this study provide evidence that an ambition gap does exist between men and women in the clerkship eligibility pool. However, these results are contingent on the type of clerkship being considered. While we find evidence of an ambition gap for clerkships in the US Supreme Court and Circuit Courts of Appeal, we do not find evidence of a gap when considering ambition to hold a clerkship with the US District Courts, state superior courts, or lower level state courts – all courts in which women tend to be better represented as clerks. This finding is cause for both optimism and pessimism. On the one hand, women are no less ambitious than comparable men as it relates to the majority of clerkships in the United States; however, that a persistent gender gap does exist at the most elite levels, suggests that something is signaling to women that these positions are not for them.
To further examine the roots of the ambition gap we observe for elite clerkship positions, we examine two variables specifically – self-perceived qualifications and encouragement received – to determine how these factors shape the ambition gap. Diverging from the literature on candidates and political ambition, we find no evidence that women view themselves as any less qualified to hold a clerkship than similarly situated men. Moreover, women reported being encouraged to apply for a clerkship to a degree comparable to men. Again this finding is cause for optimism. At the same time, to further untangle the role that these two factors play in shaping the gender gap in clerkship ambition, we test the degree to which men and women weigh these factors differently when deciding whether or not to apply for a clerkship. We find that while women view themselves as equally qualified compared to men, they must perceive themselves to be especially qualified before considering applying for a clerkship; men, meanwhile, are willing to consider an application at lower levels of self-perceived qualifications. Likewise, while women report being encouraged to apply for a clerkship at equal rates with men, they require more encouragement before considering an application. Both of these findings point to important gendered dynamics in the formation of clerkship ambition, and provide – at least partial – explanation for the gap we uncover in this research. In a supplemental analysis (available in the appendix), we also examined family considerations and find no evidence that these factors influence men and women differently.
The findings presented in this research offer important contributions to the literatures on political ambition, representation, and judicial politics. Our findings illustrate that gender gaps in ambition are not a phenomena isolated to the realm of electoral politics. Rather, understanding ambition in non-elected political positions offers important insights into when and how women emerge in other competitive, elite government positions. Although the findings presented here focused on clerkships, understanding ambition in other non-elected offices – such as judgeships, the bureaucracy, etc. – may provide fruitful avenues for future research. Moreover, future research should consider the intersections of race and gender in shaping clerkship ambition. Although we are limited in our ability to conduct this type of analysis due to our sample size, and the small number of women of color in the sample, we view a more intersectional approach as an important next step for research on clerkship ambition.
At the same time, there are some limitations to the current research and more work is needed to fully understand the ambition gap we identify. Importantly, we rely on a relatively small sample, drawn at a single point in time, using one definition of the clerkship eligibility pool. As law schools continue to face matters of gender equity, they may implement policies or programs that facilitate greater ambition among female students. Additional research should also further examine the role that family considerations play in shaping clerkship ambition. Although we conducted some supplemental analysis on this point, the measures included in our survey were limited and did not allow for an examination of how considerations related to partner careers, family planning, and childcare shape clerkship ambition. These factors are very likely important to individual decision-making and could result in important gendered differences. While we believe our analyses provide an important first step in understanding gendered ambition among law students, we understand that more research is required to further validate the key findings and their potential mechanisms identified presented here. We encourage others to develop alternative conceptualizations of the potential clerk pool, conduct multi-wave surveys, and reach larger samples of students in continued effort to understand the questions presented in this manuscript.
Beyond illustrating the applicability of an ambition gap framework outside of elected office, this research also has important implications for descriptive representation in the judiciary and legal profession more broadly. While scholars have noted the lack of gender diversity among law clerks – and the judiciary more generally (Kaye and Gastwirth Reference Kaye and Gastwirth2008; Williams Reference Williams2008), we are the first to examine the role of supply-side factors in shaping who emerges and who does not in these positions. The findings presented here indicate that (at least some of) the roots of gender disparities in women’s representation in the most elite positions are found in the very early stages of legal careers. In order to better understand the gender gap in clerkship ambition, we need a better understanding of what signals these positions (and the legal culture more generally) are sending to women. Although we examined two possible causes of the ambition gap here, more work is needed to fully ascertain why this gap exists and the potential ways that this gap might be closed. At the same time, documenting the existence of a clerkship ambition gap is an important first step and one that should interest practitioners, judges, law school professionals, and others interested in practical solutions to increase women’s representation as clerks.
Acknowledgments
The authors would like to thank Erin Cassese, Mirya Holman, Erin Pullen, Jessica Schoenherr, and participants at the 2020 Southern Political Science Association’s Conference within a Conference on Gender and Political Psychology for their helpful comments and suggestions. They would like to thank Calvin Liao for his assistance with data collection.
Competing interests
The authors declare no conflict of interest.
Data availability statement
Replication materials for this article are available at the Journal of Law and Courts’ Dataverse archive.
Supplementary materials
To view supplementary material for this article, please visit http://doi.org/10.1017/jlc.2022.8.
