The Daily Signal - How Racial Preferences Pigeonhole Minority Lawyers

Episode Date: October 29, 2021

How would you feel if your business forced you to do something based solely on your race? For some minority lawyers, that's a reality. Racial preferences from clients take minority lawyers away from cases they’d prefer to work on, all to fulfill a quota. GianCarlo Canaparo, a legal fellow at The Heritage Foundation (of which The Daily Signal is the news outlet), says that this can lead to mismatches in what a lawyer wants to do, and what he or she is forced to do. In some cases, that can lead to minority lawyers leaving their firms, exacerbating the problem. "[Law firms] may pull a minority associate off cases that he or she wants to work on and put them on these matters, sometimes against their will, just so that they can fulfill these quotas," Canaparo explains. Canaparo joins the show to talk about racial preferences and how they affect the careers of minority lawyers. We also cover these stories: President Joe Biden unveils a new, pared-down version of Democrats' social welfare spending bill. Sen. Bernie Sanders, I-Vt., expresses reservations about cuts to the spending bill. The NAACP asks professional athletes to boycott Texas over the state's laws on abortion, voting rights, and COVID-19 mask mandates. We also have a discussion about Halloween and some of the festivities that The Daily Signal team will take part in. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Friday, October 29th. I'm Virginia Allen. And I'm Doug Blair. How would you feel if your business forced you to do something based only on your race? For some minority lawyers, this is a reality. Racial preferences from clients take minority lawyers away from cases they'd prefer to work on, all to fulfill a quota. John Carlo Canaparo, a legal fellow at the Heritage Foundation,

joins the show to talk about racial preferences and how they affect the careers of minority lawyers. Plus, Doug and I talk about some fun Halloween facts. But before we get to that and Doug's conversation with John Carlo, let's hit our top news stories of the day. President Joe Biden has unveiled a new pared down social spending bill. Biden's original package was $3.5 trillion. But the president was forced to cut the bill in half after some Democrats said they could not back such an expensive piece of legislation. Biden's new package comes in at $1.75 trillion. The president said the bill does not include all of Democrats' priorities, but he urged support for the bill per CNBC.

I want to thank my colleagues in the Congress for the leadership. We spent hours and hours and hours over months and months working on this. No one got everything they wanted, including me, but that's what compromises. That's consensus. and that's what I ran on. A number of measures have been cut from the package to lower the price tag. The proposed billionaire tax has been removed along with a 12-week paid family leave measure. The new bill also strikes Medicare coverage for dental and eye care.

Still included in the package is $100 billion to reduce the immigration backlog, $150 billion to invest towards affordable housing, and $400 billion for free preschool for three and four years. year olds and reduced child care. Biden hailed the plan as a historic package, but it is unclear whether it will earn support from all Democrats. Biden did not take questions for reporters at the end of his remarks. Though Biden was excited about the prospect of the $1.75 trillion dollar spending package passing the Senate, Vermont Senator and chairman of the Senate Budget Committee, Bernie Sanders, was less so. Sanders explained that he believed that though the spending package

was a good bill, he wanted to see it become even bigger. He also cautioned progressive Democrats in the House that they should refrain from voting for a separate trillion-dollar infrastructure package until they could confirm the $1.75 trillion spending package had the 50 votes to pass through reconciliation in the Senate. Here's Sanders via the Hill. Before there is a vote in the House on the infrastructure bill, the members of the House have a right to know that 50 U.S. senators are supporting a strong reconciliation bill. Number two, I think if you look at the bill that the president announced today, it is probably the most consequential bill since the 1960s in terms of protecting the needs of working families,

the children, the elderly, the sick and the poor. It is a major major step-over. But clearly to my mind, it has some major gaps in it. Democrats have attempted to tie the passage of these two bills together, meaning if the $1.75 trillion spending package fails to pass the Senate, progressive Democrats in the House will refuse to pass the infrastructure package and vice versa. It is unlikely that either bill will receive much GOP support. Sanders expressed that he wanted the $1.75 trillion spending package to address progressive priorities, including lowering costs for prescription drugs, expanding Medicare to include eye, ear, and dental health. health as well as climate change.

The NAACP is asking professional athletes to boycott Texas. In a two-page letter released Thursday, the NAACP asked members of the MBA, WMBA, NFL, NHL, and HLB to not sign with sports teams in Texas as an act of protest over laws the state has recently passed. A portion of the letter reads, over the past few months, legislators in Texas have past archaic policies disguised as laws that directly violate privacy rights and a woman's freedom to choose, restrict access to free and fair elections for black and brown voters, and increase the risk of contracting coronavirus. The calls to boycott the state comes shortly

after the passage of Texas heartbeat bill that prevents abortions after six weeks of pregnancy and passage of Texas voting legislation that aims to make it easier for citizens. to vote and harder to cheat. Texas Governor Greg Abbott has also been outspoken in his opposition to mass mandates and vaccine mandates. There are currently nine professional sports teams in Texas. Now stay tuned for my conversation with John Carlo Canaparo on racial preferences in the legal field and how they're hurting minority lawyers.

If you're tired of high taxes, fewer health care choices, and bigger and bigger government, it's time to partner with the most impactful conservative organization in America. We're the Heritage Foundation, and we're committed to solving the issues America faces. Together, we'll fight back against the rising tide of homegrown socialism, and we'll fight for conservative solutions that are making families more free and more prosperous. But we can't do it without you. Please join us at heritage.org. Our guest today is John Carlo Canaparo, a legal,

fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies. John Carlo, welcome to the show. Thanks for having me, Doug. Awesome. So, John Carlo, you wrote a piece titled How Client's Racial Preferences hurt Minority Lawyers. And the gist of this piece is that minority lawyers are being pigeonholed into cases that they aren't right for or that they don't really want to be doing simply based on the fact that the clients want a racially diverse group of lawyers to do the casework for them.

How prevalent would you say that this issue of lawyers being kind of pushed into cases that they're not comfortable with or they're not wanting to do based on their racial identity is? Very prevalent. Let me take a step back and explain how this works. And you can see the incentives that are work here and how this plays out. So you have these big law firms, right? And they've got huge clients, Fortune 500 companies that are able to throw tons of money at them. And in the pursuit of diversity, in these law firms and in the legal, well, ostensibly, so the clients will say, to increase diversity in the legal profession writ large, what they'll say is if you want any of our business, you must staff the cases that you work for us with a certain percentage or a certain quota of minority lawyers. Now, there's a problem with this because most of these law firms don't have what you'd call a representative population of minority lawyers in the firm. So if there are about 13% of the country is black, there are not 13%.

13% of these law firms that are black. And we'll get into why that is in a minute. But that puts the law firms in a bind where they don't have enough minority associates to staff these matters in accordance with the quotas organically. So what they do is they force minority associates to work on them. So they may pull a minority associate off cases that he or she wants to work on and put them on these matters, sometimes against their will, just so that they can fulfill these quotas.

So that's what's going on. This has been going on. This kind of push started about 20 years ago and has really ramped up in the last few years. Now, I mentioned that it's your, I guess the title of the piece is racial preferences. Is it specifically race or is there other sort of denominators like gender, sexual orientation that other clients are saying, I want a gay lawyer on my case or I want a female lawyer on my case? Not that I'm aware. It tends to be, has historically been focused on race and for the most, as far as I'm aware, continues to be focused on race. And is there any particular reason that it's specifically focused on that?

I know a lot of things these days sort of tend to be diversity of all sorts of, you know, angles like race, sexual orientation, and gender. Is there any particular reason that race seems to be the focus in most law firms? I think because some racial minorities, Hispanics and blacks, tend to be underrepresented in firms in terms of as a proportion of their population within the total United States. they're not represented the same rate within law firms, whereas other minorities, like Asians, tend to be overrepresented. But that historical underrepresentation has lingered for a long time.

So I think that's why that focus is there. So there's this old saying, I think probably much everybody is familiar with, that the road to hell is paved with good intentions. Is that sort of what's going on here where this is a good intention that's being executed poorly? Yes, that's exactly what's happening. And the way this came to my attention is with discussions with friends of mine who are lawyers in these firms. One in particular who I talk about whose story I recount in the article, she said she had been working on certain matters. She has certain preferences, right?

Part of what is, you know, valuable to you in your career is your control over your own career, right? So she prefers to work with certain partners, not other partners. She prefers to work on certain kinds of cases, not other kinds of cases. But the firm comes in and says, look, we've got half a million dollars. and legal fees on the line, you don't get a choice anymore. You get to work on this matter. And the firms, the clients will say, well, our matters are the best, you know, they're the biggest ones. And so, of course, the associates want to work on them. And we're just concerned that associates that are minorities are not getting to work on them. The problem is for associates,

the problem, that is a solution for associates who want to work on those matters but on getting to, which is probably not actually happening, given the market dynamics of law firms. But it becomes an active harm when an associate doesn't want to work on those matters and has her control over her own career stripped away from her so that she can be essentially tokenized to satisfy client demand. So you mentioned very briefly that in your piece, there's this friend who has expands this sort of racial reshuffling where it's like, we want you to work on this piece or this case instead of this case. And then the lawyer would say, well, I don't really want to do that. And they say, well, tough, you need to do it anyway because the client wants a racial minority to work on this

case. Could you go maybe into some of the other issues that can prop up with minority lawyers if they are kind of taken away from a case they really want to work on or given a case that a client says, I want a racially diverse team? Yeah, sure. Well, the back to the first point is she loses the control over her career, right? One of the justifications for these kinds of things is that they increase opportunity for minority lawyers. But the counter to that is isn't the ability to choose and develop your own career itself an opportunity? which of course it is. So you get this ironic incentive is created

where this lawyer starts to be forced to work on things she doesn't really want to work on. She has no control over her career development, which partners she gets to spend time with and develop relationships with for promotion advancement, no control over the skills that she gets to develop. And that creates an incentive for her actually to leave the firm, right? Which means you have the perverse incentive

where you're actually encouraging some minority lawyers to leave the firm, which only perpetuates the racial disparity that the clients are ostensibly trying to remedy. Yeah. I'm really glad that you brought that up, actually, because you did mention in your piece that retention rates for employees who are sort of, hey, you're a black lawyer, we need you to work on this case. That would definitely affect their retention rate. Have we seen that kind of play out in these law firms where lawyers,

who are being moved on the basis of their race are starting to leave? There isn't data on that exactly. But minority lawyers do, some minority lawyers, again, do have much lower retention rates than other groups. So black lawyers in particular have very low retention rates compared to other racial groups. One of the things that you also discussed in your piece is the kind of implication by a lot of clients that the reason there are these sort of underrepresented groups, I guess they're not represented as a proportion of the population is that there's discriminatory hiring practices.

Some clients might infer that, oh, there's not enough black lawyers. Therefore, it's because the business is not hiring black lawyers based on some form of discrimination. Is that true? And then if that is true or if it's not true, what is at play? Yeah. So I think when clients impose these racial quotas on law firms, they don't actually do a good job of explaining why they're doing it. But so what I tried to do in the piece is try to make, you know, when would it make sense to do this? And why, if you were the client in that position, why would you do it?

And the argument seems to be, or the most plausible argument seems to be that it would help firms to hire more minority associates, right? Because now they've got a demand from the clients for the minority associates they needed to fill. And if clients were just looking at the pool of minority candidates and saying, we don't want minority candidates, we want Asians and whites, this would fix that problem. But this hasn't fixed the problem because that is not the problem. Law firms are not discriminating and hiring. In fact, quite the opposite. In part, in response to this incentive, law firms have increased their outreach to minority law students. and even minority college students who might be considering law school in a big way. And in fact, they will even sometimes pay recruiters premiums to get minority lawyers. But that doesn't solve the problem because when you look at the pool of law school applicants, the disparity is already present.

So you're not, you don't, there isn't a pool to pull from at a representative rate. So the problem, whatever it is, is happening long before the law firms are, making their hiring decisions. So that's why in the piece I called this symptomatic treatment, right? Because it's trying to treat the symptom, which is disparities in law firms, without addressing or even reckoning with whatever is causing the disparity in law schools to begin with. So from what it sounds like you're saying is that this is sort of treating a symptom of the greater illness of there's not enough minority lawyers or minority employees at these businesses.

and so, well, they're just seeing that so they're not going to actually attack the root cause. Is that kind of what you're saying? Right, right. In part because I think nobody knows what the root cause really is. When you're going to look at why do, say, black students or black, we ought to start even before that, black children. Why are they going to college at lower rates?

Why are they going to, why they graduating from college at lower rates? Why are they going to law school at lower rates? Why are they graduating from law school at lower rates? These are all four inflection points. that have sort of a path-determinate effect on the hiring of lawyers. And what leads to the disparate lack of population representation in law firms, there's a whole stream of causation leading up to that point that these clients aren't engaging with. And they're trying to sort of impose a top-down remedy that just, it cannot work.

Okay. So if clients then want this increased representation of racial groups, on their law teams, what are some better options for them currently? I think we've discussed that there's something that's more at the sort of lower levels of the chain that involves, you know, encouraging black students to apply for law schools or getting black law school students, you know, into jobs and such. It's not being properly solved at the level of we need just more minority lawyers currently on the teams to go to cases that they don't want to go to.

So acknowledging that those are problems, what is a problem? the solution for clients who want to have a racially diverse law team? Yeah. Well, the problem is with anything, when you're talking about the problems of racial disparities in the marketplace, there isn't like a magic solution, right? Thomas Soul is very famous for saying there are no solutions that are any tradeoffs. And he would be the first to tell you that the causes of racial disparities are incredibly complex and myriad.

But if you are a corporate lawyer who wants to impose this kind of quota on your law firms, what is sort of within your power to do is to focus on the streams leading into law school and leading from law school to these big law firms. So you would be in a good position, say, to mentor college students, to mentor law students, to encourage high school students to appreciate, especially, say, in inner cities or poorer neighborhoods, to appreciate that there are options and ways to get into the legal profession. Well, if you want to remedy or you want the population within law firms to be more equal, you have to be focusing on the upstream.

But if you're trying to focus only on the law firm, the causes have already happened and you're not going to fix anything. Because remember, with a finite supply of minority lawyers, you move one on to one matter. You take him or her off another. Again, there aren't enough minority lawyers to meet these quotas organically. I'm curious, because you've mentioned that you spoke with friends of yours who have experienced some of this racial reshuffling in their professional lives as well, do they have any ideas that they can sort of posit as like, well, you know, as somebody who's experienced this, this is how I would prefer it be done or is it sort of like they don't really know either. The general, well, within the law firm, this sense is very much, you know, leave me alone and let me manage my own career as best I can. Right. Which, you know, what more could, I mean, what more does anyone ask for? They want the same opportunities that everyone else has, which is the opportunity to pick and choose to manage your own career as best you can. And that's the problem with these racial quotas is that they deny minority lawyers that opportunity.

Well, before we leave, I would be remiss if I didn't mention that you also host a podcast here at the Heritage Foundation called SCOTUS 101. It's a great show. If you haven't checked it out yet, you totally should. Can you tell us a little bit more about that podcast, what you do, what you talk about? Yeah, the podcast follows the Supreme Court just about every week that it is in session or issuing opinions. We unpack it in a way meant for non-lawyers to sort of understand. understand what's going on of the Supreme Court. We have interviews every week with federal judges so that you can get a sense of how they do what they do with Supreme Court advocates. So you can see how

that process works out with journalists and with law professors to help unpack some of those complicated legal issues that get argued. Cool. And could you maybe give our listeners, I don't want to spoil anything, of course, but could you maybe give our listeners a brief rundown and what you guys will be talking about maybe in the next couple weeks in the near future? What's on the docket? Yeah, absolutely. So the next couple weeks, as you You know that Texas abortion law is being argued at the beginning of November, so we will be covering that pretty extensively. The big abortion case, which is called Dobbs, is going to be argued at the beginning of January.

We're going to be having, we're going to try to have some law professors and some other professors on to sort of unpack the issues there and what the stakes are for the court going forward. Cool. So if our listeners want to check out some of your work, or perhaps if they are intrigued, by Scotus 101. They want to maybe listen to Skotus 101. Where should they go? Well, wherever you're listening to this podcast right now, probably just a page next door is

Scotus 101, since I sit in this very same studio to record it, usually in your seat. Yeah. And, you know, I write a lot for the Daily Signal. My longer form pieces are either on heritage.org or SSRN. And I'm on Twitter, too, somewhat reluctantly, at G. Conaparo. Excellent. Well, that was John Carlo Canaparo, a legal fellow at the Heritage Foundation's Edwin-Meese, the Third Center for Legal and Judicial Studies, and of course, co-host of SCOTUS 101.

John Carlo, thank you so much again for joining us. Thanks, Doug. I'm Zach Smith. And I'm John Carlo Canaparo. And if you want to understand what's happening at the Supreme Court, be sure to check out SCOTUS 101, a Heritage Foundation podcast. We take a look at the cases, the personalities, and the gossip at the highest court in the land. Be sure to subscribe on Spotify, Apple Podcasts, or wherever else you find your podcasts.

It's SCOTUS 101. Now before we leave you all today, we want to share a couple fun Halloween facts. Halloween is right around the corner on Sunday, and that means a lot of candy for many Americans. Americans are expected to spend over $10 billion on candy this Halloween, according to the National Retail Federation. Doug, that's a lot of candy. That is a lot of candy. Now, I was fascinated to learn that 60 out of every 100 Americans, they said that they prefer chocolate candy over regular candy.

And then we've coming in, in second place is gummies, who doesn't love a good gummy. Right, right, of course. Third place is candy corn, which I understand. It's, take a relief. It's part of the holiday, though. It is. Honestly, I feel like it's a little bit more decoration. Exactly.

And it is anything that you actually want to eat. Sure. But I always end up eating it when it's out, even though it's not very good. Do you have a favorite Halloween candy that you always gravitate towards? I am a huge fan of Three Musketeers, so I just love the chocolate. I completely understand where 60 out of 100 Americans are coming from here. Chocolate is the best type of candy. But Three Musketeers was always what I went for when I was a kid.

But cats and Reese's and all those different types of chocolates were in my wheelhouse. What about you, Virginia? Snickers. I am diehard Snickers. So good. I did. I love three musketeers. I remember as a kid, you get all your candy and you would sort it by type. And then you would trade with siblings or friends and like bargain for, again, I mean, a chocolate bar was always worth the most. Right, right. So, you know, be like two gummings for one chocolate. Exactly. Yeah. I'll trade you two Hershey's for a Kit Kat, right?

Exactly. Exactly. Now, according to most Americans, though, there is a clear winner in terms of the favorite Halloween candy of Americans. and that is Skittles. Interesting. So according to September 2019 data from candy store.com, Americans buy 3.3 million pounds of skittles every Halloween. I'm just trying to like think about that. It's a lot of skittles. How many pillowcases you could fill up with 3.3 million pounds of skittles?

I feel like my heart's just beating faster already, like blood sugar is going up. For sure. And then some other cool candy facts that we've got here. This is from Reader's Digest. Tootsie Rolls, the kind of classic chocolate. were used in soldiers' field rations back in World War II. Yeah. So they were very easy to transport.

They were a quick bit of energy that you could get to kind of give yourself a boost if you needed it. And one of the nice things about this candy is you'll notice that it's something that doesn't really, it's pretty hard, right? So it stays the same shape and it stays durable under difficult weather conditions. So if you're out in the field and you're in the mud and you need a quick pick-me-up, you know of a titsy-roll. I feel like I'm going to remember this for hiking. 50-year-olds. And then finally, one of the other things we can discuss is, obviously, it's trick-or-treat, right? So a lot of people go out trick-or-treating.

A full 68% of Americans participate in some form of Halloween ritual. And 69% of those people plan to buy candy for their Halloween festivities. That's almost 47% of the entire United States population, which is just just, It's insane. Yeah, that is insane. A lot of people participate in this holiday. Do you have any exciting plans for your Halloween, Doug? Well, I do enjoy a good Halloween party, so me and some friends are probably going to plan to hang out and do some Halloween festivities.

Any crazy costumes coming your way? Yeah. So I, for the first time, I'm going to be doing, I guess maybe not the first time, but I will be doing a costume with my girlfriend. We're going to be dressed up as Limu Emu and Doug. from the Limu Emu or the Liberty Mutual commercials. Perfect. Yeah, for sure. I'm very excited.

How about you would be here? Well, no costumes this year. I'm actually going to a concert that night with a bunch of friends from church. So it'll be a good time. I'm excited. I'm sure there will be still lots of candy eating that takes place. Very exciting. The most important part, of course, of Halloween.

Of course. Just eating all the candy. Very much, though. Well, that's going to do it for today's episode. Thank you so much for listening to the Daily Signal podcast. You can find the Daily Signal podcast on Google Play. Apple Podcasts, Spotify, and IHeartRadio. Please be sure to leave us a review and a five-star rating on Apple Podcasts and encourage others to subscribe.

Thanks again for listening. Enjoy your weekend and all the candy. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Virginia Allen and Kate Trinko, sound designed by Lauren Evans, Mark Geinney, and John Pop. For more information, please visit DailySignal.com.