Clerked Around

Is there a major girl crisis in Supreme Court hiring?

If you’re someone who cares about the role of women in the law, it’s always depressing to learn they are moving backward in some area they reasonably ought to have conquered decades earlier. And so it is that the New York Times’ Linda Greenhouse joins former Supreme Court Justice Sandra Day O’Connor and Justice Ruth Bader Ginsburg in mourning the sudden and dramatic drop in the number of female clerks at the U.S. Supreme Court this year.

Greenhouse’s front-page item, “Women Suddenly Scarce Among Justices’ Clerks,” points out that only seven of the 37 law clerks for the upcoming term are women, a 50 percent drop since last term and “the first time the number has been in the single digits since 1994.”

Not surprisingly, O’Connor expresses surprise at this development. Ginsburg—who has noted the drop in female clerks in recent speeches—declines to comment on what it means. She instead urges Greenhouse to “ask a justice who has not hired any women for the coming term.” This is, I imagine, some kind of editorial charge for Greenhouse to rough up the boys on the bench. Not unlike me telling my son to just ask his dumb dad why he can’t watch another 20 minutes of Superman.

The two male justices consulted, Stephen Breyer and David Souter—both of whom regularly hire female clerks—suggest that a one-year trend in a tiny pool of clerks hardly represents a statistically significant phenomenon. Perhaps the sudden drop, says Souter, is just a “random variation among this year’s applicants.”

While the 50 percent drop in female clerks from last year is certainly striking, these are small numbers we are talking about, from 14 to seven. And the justices don’t consult each other when they hire, so a series of small decisions—whom each justice chose for his or her four slots—can account for the decrease, rather than one institutional force. Nor is it exactly news that SCOTUS clerks don’t look like America. At Legal Times, Tony Mauro has urged for eight straight years that these most coveted of clerkships are overwhelmingly granted to white men, and that that this is a problem. For a while, he even had Congress convinced, or at least sufficiently convinced, to ask the justices tough questions for a few years. But then, even the tough questions stopped. And as Mauro observed, looking at the data yet again this spring, “if the proof is in the pudding, the pudding, this term at least, is vanilla.” Thus, the declining number of female clerks is only half the story, if that. The appallingly low number of minority clerks every year is the rest of it.

Greenhouse points out that this has been a hot issue in the legal blogosphere all summer, and Amber of Prettier Than Napoleon offers some thoughtful analysis of the phenomenon (fewer women at top schools, fewer women with top grades at top schools, fewer women on law reviews at top schools, fewer women appellate clerks in general). The always provocative—and especially brave—Eugene Volokh asks: “Is the cause possible differences in innate intelligence at the tail ends of the bell curve (what I’d heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)? Sex discrimination in law school classes (whether on the exam or before) or in hiring? Social pressures that push some women away from law school? Differences in innate ambition?”

A lot of the other folks who weigh in on this subject offer the same explanations we’ve already heard to justify other glass ceilings—for female columnists, TV anchors, and judges: Women just aren’t gunning for these highly competitive spots the way men are; women are struggling to balance career and family; women don’t want to waste their time on what is essentially ego-gratifying drudgery. Forgive me, but I don’t buy it. I can accept and understand why some women might shy away from writing a New YorkTimes column, but a one-year judicial clerkship? I just don’t believe women aren’t interested in awesome short-term work that is way better than law schools or firm jobs. Nor do I think there aren’t enough women highly qualified to do the work: Clerkships require precisely those skills women are supposed to have in spades—careful, behind-the-scenes research and writing.

I think the better explanations for the dearth of female clerks are the ones highlighted by Amber: the lack of women at the very top of their classes at the very top schools; the dearth of women clerking for feeder judges; and the number of judges who won’t look outside that pool.

More urgently, the unanswered question at the heart of Greenhouse’s article isn’t whether Souter will hire a few more chicks next year—he probably will, since he’s hired plenty in the past. The real question has nothing to do with Souter at all, and it’s why Antonin Scalia has hired only two women out of 28 clerks between 2000 and 2006, or why Anthony Kennedy has hired only three.

Doesn’t Laura Ingraham have a sister somewhere?

When pressed on these sorts of questions, justices tend to answer that they can’t afford to compromise their sky-high hiring standards. Even Souter covered to Greenhouse by saying he hired the top four applicants, who all turned out to be men. This sounds like thin cover: Every year, there must be at least five applicants for each spot who would do a phenomenal job. There are, after all, dozens of top law students who go on to good appellate and district court clerkships, the usual apprenticeship to the high court. And now the justices are hiring lawyers already in practice as well. Put another way, can we, for just a moment, scrutinize the sky-high criteria the justices are using?

Doug Berman, for instance, asks why we aren’t challenging the whole “feeder judge” phenomenon? Those judges—a handful of federal appeals courts judges on the D.C. and a few other circuits who frequently place their clerks on the high court—happen to be disproportionately male. They also represent one of those immutable and, I believe, totally bogus hiring categories in some chambers. Of course feeder judges hire superb clerks. But are they by definition better than state supreme court clerks?

The real problem here, of course, is that there is just no way to measure what makes for “better” clerks. What makes for a good clerk is that her boss likes her. And assuming that they aren’t drinking and cite-checking at the same time, most clerks thus do just fine. But evidently some older male judges still feel uncomfortable with young women. Or their wives do. Some just prefer to hang out with those who share their political or ideological views. Many judges have quirky personal preferences (for tennis players or history buffs). Others just don’t think there’s any benefit to diversity in their chambers. And so, not unlike the guys at the Sigma Chi house, some judges just go with their instinct, and in some cases that means their choices are overwhelmingly male. That has little to do with personal politics, by the way. If Clarence Thomas has one of the court’s best records for diverse hiring, liberal icon William Brennan had one of the worst.

So, the real front-page story, to my mind, isn’t whether there is a female clerkship crisis, or even why women won’t or don’t clerk. This is a process that is completely driven by the whims of the justices. Which suggests that the issue, again, is about the unbelievable lack of diversity in the high court’s chambers, and why some of the most important jurists in America—from some “feeder judges” to Justices Kennedy and Scalia—just don’t care.