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[discussion began October 4, 1999]

Diversity and Supreme Court Law Clerks

Leaders of minority and women's groups are once again calling upon the Justices of the United States Supreme Court to hire more minorities and women as law clerks. In a letter to the Court on September 27, officials from the NAACP, NOW and other groups noted that despite recent progress, "the fact remains that women and ethnic minorities are still underrepresented among Supreme Court clerks" [a 1998 USA Today study indicated that only 2 percent of the clerks hired by the current justices have been from minority groups]. The leaders also criticized the Court for hiring so many clerks from Harvard and Yale law schools, noting that "the continuing reliance on a small pool of applicants is a disservice to all students throughout the U.S., the Supreme Court, and the nation itself." Should the Justices of the Supreme Court hire a more diverse selection of law clerks? Send your comments using the form below or e-mail JURIST@law.pitt.edu. For more information on Supreme Court law clerks, see JURIST's Guide to Clerks and Clerking at the U.S. Supreme Court.

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  • [Oliver Waldman, law student, Northwestern School of Law, Lewis & Clark College]

    My facts on this situation come from attending several clerkship panels at my law school. Before ever getting to the Supreme Ct, the first round of cuts is made at the appellate level. That custom is not inherently counter to diversity (or inherently racist, but I think we've all agreed on the terms). What are the stats for the appellate clerks? If the appellate courts have a wider diversity than the Supremes, then we have a problem -- regardless of a "no comment, and it's none of your business" from the Chief Justice.

    If the appellate pool is similarly non-diverse, then we need to shift the focus there. Sadly, I think we need to shift our focus to the clerks themselves. The appellate clerks USUALLY (again, from what I hear) make the first round of cuts from the pile of resumes. This reduces the workload of the judges in the quest for a suitable replacement. I draw the inference that "suitable" is -- ineptly -- "identical". Are the appellate clerks presenting the judges with a race, gender and archaic class(read school) biased applicant pool? Non-diverse clerks offering a pool of non-diverse applicants to appellate judges; consequently, supreme court justices choose the entitled white guys left over from the choices of the very first selection process.

    Darwin had strong words about shallow genetic pools. Remember him? Death is both the rule and the precedent. Life continues thanks only to diversity. It's one of those ideas you have to understand without a footnote. You can lead a federally exempt horse to the deeper pool, but you can't make it drink.

    I left plenty of room here for counter arguments, exceptions, and cold stares. Please, take your pick. If those are your only options...

  • [Mark R. Brown, Ohio State University College of Law] Four years ago I prepared the first study questioning the high Court's hiring practices. It demonstrated a statistical disparity between the number of female law graduates and the number of female clerks hired by the Supreme Court. After controlling for several factors, including law school performance, law school status, and prior clerking experience, I concluded that a majority of the Justices (Rehnquist, Scalia, Kennedy, Souter and Thomas) exhibited a significant male preference when hiring clerks. Put another way, their hiring three and four times as many males as females could not likely be explained by male dominance in the marketplace.

    I avoided a host of issues in this study, most notably the racial demographics of the Court's clerks. I did not address this question for the simple reason that the figures needed to make a proper comparison are not available. Although the percentages of African-Americans, Hispanic-Americans, Asian-Americans and Native-Americans clerking for the Court have been accurately reported, and graduation rates are available, no quantitative record of minority success in law school exists. Without a concrete idea on how minorities perform in law school, reports on the Court's racial preferences are exaggerated and incomplete.

    Still, the proven infrequency of female appointments, coupled with the small number of minorities, raises a serious question about the Court's neutrality. Some have argued that the Court can correct its poor hiring record by casting a wider net; rather than focus on a handful of elite law schools, like Harvard, Yale and Chicago, it should hire from all accredited law schools. While I am sympathetic to this argument, my sympathy is more populist than principled. My research leads me to believe that expanding the number of schools will not increase the number of female clerks. The raw number of qualified women will increase, but so will the number of qualified males. Unless the success-rate for women is significantly higher in non-elite schools, which does not appear true for women, the new pool will simply mirror the old. I suspect the same is true for minorities.

    The Chief Justice offers a good illustration. Over the last twenty-five years the Chief Justice Rehnquist has hired clerks from a broader array of law schools than any other Justice. His percentage of female clerks, however, still lags woefully behind that of most of his colleagues. Wider nets do not necessarily mean greater diversity.

    Another suggestion is to broaden the Court's minor league court system, its complement of "spotter" judges who supply experienced clerks. It is well known that the Supreme Court selects its clerks almost exclusively from the twelve geographical United States Courts of Appeals, a panel of over 150 judges. Rumor has it that only a small handful of these judges are responsible for grooming the high Court's clerks. If the Justices were to give equal weight to the recommendations of all 150 judges, more female (and minority) candidates would have a chance.

    Again, unless the hiring patterns of the judges on the various U.S. Courts of Appeals vary significantly, increasing the number of feeder judges is not likely to alter the demographics of the Supreme Court's clerkship pool. I am not aware of any study suggesting such a disparity. Moreover, the assumption that the Justices rely on a small number of spotter judges is itself overstated. While certain judges provide more clerks to the Supreme Court than others, the majority of clerks are hired from a large group of judges.

    The same arguments made today about the Supreme Court's hiring practices were made by private employers thirty years ago. "I'd hire more women if more were qualified." But more were qualified, and the only way to change things was to provide women with legal leverage to pry their ways into the marketplace. Likewise, female success rates in America's elite law schools prove that the Court's dismal hiring record is not the result of too few qualified candidates. While expanding the range of schools and judges is a step in the right direction, it is not likely to pry open the clerkship market.

    The better solution, I believe, is to include the Supreme Court (and the rest of the federal judiciary) within the ambit of nation's anti-discrimination laws, most notably Title VII. Both the Executive branch and Congress, thanks to its 1995 Contract with America, are covered by Title VII. Only federal courts are absent.

    I recognize that federal judges are supposed to be independent of the political branches of government. However, this nation's commitment to equality transcends simple politics. Even the appearance of partiality demands redress. History teaches that reform is rarely a gift. If there is a solution, it must come from outside the Supreme Court.

  • [Thomas Higgins, Illinois Central College] While "good faith" arguments exist on both sides of this coin, and I use the term "good faith" because some arguments made in this debate are simply not made in good faith, it seems to me that justice from our modern melting pot of society can only be achieved if the people in authority reflect that melting pot. To suggest that the clerks for the United States Supreme Court are not in a position to at least greatly influence authority is almost as ridiculous as arguing that there are no qualified minority candidates. The truth, I fear, is that many minority candidates avoid the thought and process entirely as a waste of time better spent in securing other employment.

  • [Elliot Keith, Native American Trial Lawyers Association, Louisiana; Southern University Law Center] It would seem that the Justices on our highest court would be more sensitive to the tone and tune of the country. Give us all an equal opportunity to shine.

  • [Velvet Poston, Brigham Young University Minority Law Student Association] I would love to see more minorities and more women in the Supreme Court. However, there is no reason for the Supreme Court justices to go out of their way to hire minorities or women if they have not completed the pre-requisites necessary to be well qualified to serve as Supreme Court clerks. It would be a disservice to minorities, to women, and to the justice system to hire someone purely because of their race or gender. As I understand it, all of the clerks serving on the supreme court are in the very top of their class and have experience serving as either Federal appellate court clerks or State Supreme court clerks. Those minorities and women that meet those very high standards should be hired to clerk for the Supreme Court. These standards should not have to be lowered in order to meet a minority and woman quota. If there are minorities and women who meet the hiring criteria of the Supreme Court, and they are not being selected as Supreme Court Clerks then there is a serious cause for protest.

    If there is a problem to be solved it is in the administration of tests at law schools that are geared toward the success of white males and not of minorities or of women. By changing the changing the format of law school exams to address different styles of learning, we have a better chance of seeing minorities in the single digit class rankings, which will increase their chances of serving in Federal Appellate Courts, leading to Supreme Court Clerkships. Although I do not believe that class rankings necessarily show a student's ability to succeed either as a clerk or as an attorney, I do not think that the Justices should make an exception in their hiring standards for me or for any minority or woman that does not meet the set standards.

  • [Annette Polidura, Rutgers University] It is the sad reality that we must endure this "old boy's network". It is six degrees of separation that excludes me from being a clerk for the United States Supreme Court. It is also that I am a woman and a woman of color, that will make it more difficult. In a system that is to be representative and just these traits seem to be lacking. Brilliant minds are not always found in the classrooms and graduation ceremonies of Yale and Harvard and yet, that is where the search ends. Possibilities are endless if one would only give a chance and realize that who you know is not indicative of intelligence.

    The cream cannot always rise to the top if no one recognizes that it is there... open your eyes.

  • [Mary Margaret Rambo, Texas; "a mother who saw this because I wanted to take my two sons, ages eight and eleven, to D.C. to experience the Supreme Court of the United States first hand."]

    My heart is saddened that I even have to respond to this absurd question. This is so incredibly easy. How can we be writing these dissertations and arguing these points? It is so simple. The court that interprets the Constitution of the United States of America should be most diligent in ensuring they require the same of themselves as they do of those that request their decisions. I do not believe the Constitution reads "all men that attend law schools, that USA Today finds to be in the top ten percent of such schools, are created equal."

  • [Eric Coulson, law student, Southern Illinois School of Law] The Supreme Court should unquestionably hire the best law clerks availible. It is unreasonable to assume that all of the best potential law clerks come from Harvard, Yale, or the other "top schools." The Justices should at least be willing to consider potential clerks from all ABA approved law schools and to my knowledge that is not the case.

    A legal eductaion is what one makes of it and there are many dedicated, smart law school graduates from smaller and lesser known schools that should have the opportunity to compete for a clerkship at the Supreme Court.

  • [Juan Roberto Gonzalez, President, Hispanic National Bar Association, Law Student Division] [Some of these] comments show the ignorance of people toward overt discrimination. The fight for diversity is a fight to include all facets of society in the judicial process. It has nothing to do with political affiliations. The problem facing the Supreme Court is one of equality. The Court admits that they hire from a selective pool of applicants that come from a dozen judges on the Federal Circuit. Those "feeder" judges admit that they only look for the best students from the best schools. When asked what those schools were, they respond the top 10 schools as ranked by the USA Today.

    Why not select from the top 10 schools selected by Hispanic Business Magazine, or the top 10 schools selected by the American Society of Law Professors? If the Justices and their "feeder" judges are so narrow minded as to ignore applications because the applicant is not from one of the top 10 schools in the USA Today list, then there is something really wrong with our view of equality.

    What [some people] fail to see is that the majority of underrepresented law students are not at Yale or Harvard, not because they could not get in, but because most underrepresented groups do not have the necessary contacts at those schools, that will help them skip all the red tape. [Because] the majority of Harvard and Yale alumni, due to past discrimination, have been Caucasian affluent males with lots of money, it is more likely for the children of these alumni to be accepted at Harvard or Yale, than the children of the poor migrant worker who has little or no education and has no donations for the university, even though they both have the same grades.

    People fool themselves when they think that affirmative action only works for minorities - affirmative action has been around long before it was implemented to help underrepresented groups, just look at the number of upper management jobs in this country, the number of CEOs in this country - how many of those are minorities? We all know that to get that job it's more often who you know, not what you know. So tell me who knows more people at the top, the Caucasian child whose parents are alumni of an Ivy League School, or the migrant workers child who's family has been working the fields all his life to give provide the child with the chance to reach the top?

    Let's face it: to get to the Supreme Court as a clerk, it's who you know, not just what you know. Just look at the parent-child teams that have clerked at the Court. Over 15% of clerks, more than minority clerks, that have clerked on the Supreme Court in prior years, now have had a child that has also clerked on the Court.

    What is the true reality of equal opportunity? You can see it in the "old-boys network" of the Court. There is no [equal opportunity] on the Court and that has to change.

  • [Rick Duncan, University of Nebraska] In order to increase diversity, I think the Court should act affirmatively to hire more members of religious minorities. For example, are Fundamentalist Christians proportionally represented in the clerk ranks? What about Evangelical Christians? Mormons? Why focus only on race when worrying about diversity?

  • [Michael Caldwell, Georgia State University] While the Supreme Court needs to hire the best and the brightest, it does not well serve the court to have the dialogue which so frequently occurs between the Justice and his/her clerks, and which might well educate the Justice as much as the clerk, depend upon such a narrow pool of legal thought as represented by the elitist Harvard and Yale Law Schools.

    We need diversity in thought far more than mere superficial diversity in skin color and gender.

  • [Virginia L. Smith, Chaffe, McCall, Phillips, Toler & Sarpy; Louisiana] Of course they should. I'm surprised, and disappointed, this is even an issue at such an institution.

  • [name withheld] This country must be in serious trouble if the Supreme Court Justices believe that there are few qualified clerks from non-Ivy League schools. Where are all of these incompetent non-Ivy League judges coming from anyway?!

  • [Roland Moskal, Baltimore, Maryland] The Justices should be allowed to choose the BEST candidate for the job. Let each Justice have that power to choose. Do not force the diversity issue. This is the top court in the country...let the cream rise.

  • [Milt Rowland, Spokane, Washington] In the sense of decreasing reliance on Yale and Harvard, I agree diversification is warranted. In terms of carefully watching gender and ethnic backgrounds, however, I strongly disagree, and believe that the Justices should hire whomever they wish.

  • [Richard Garnett, North Dakota] The NAACP's allegations about law-clerk hiring are disingenuous. No one *really* thinks the Justices are discriminating on the basis of race. If there are "not enough" clerks of a particular race, that is -- as the Justices have said -- because our dismal education system does not produce enough qualified minority applicants. The law clerk job is too important to be manipulated for symbolic purposes. The Justices need the best. Only clerks who can do the work should be hired. While it is true that the Justices focus too much on Harvard and Yale, it is utterly misguided to suggest that all law schools, or all law students, are equal in this context.

    Moreover, the whole debate perpetuates the offensive stereotype that minority law clerks necessarily think with a "minority" perspective and also the paranoid rumor that law clerks somehow control the outcome of cases.

    If those who are slinging unfounded allegations at the Justices really want to see more African American law clerks, they can start by supporting efforts to reform education in disadvantaged communities through educational choice.

    Let's be honest -- what the NAACP is concerned about is not really more minority law clerks, it is more left-leaning law clerks. After all, Justice Thomas has one of the best records of hiring clerks from schools other than Harvard and Yale, and of hiring minority law clerks, but we'll never see him praised by Mr. Mfume.

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