SCOTUS Justices’ Choice of Clerks Lack Diversity

Capping an elite law school education with a federal clerkship, preferably at the U.S. Supreme Court, is the Holy Grail for fledgling attorneys. Securing a top clerkship is the fast track to professional legal success and financial security, but it’s a route long dominated by white men.

As far back as 1998, and likely farther, white men held 85 percent of Supreme Court clerkships, according to numbers compiled then by USA Today. Women lagged far behind, and blacks and Hispanics held only a sliver of such jobs.

Most major law firms today have opened their ranks to a broader spectrum of society, but very little has changed to expand clerk diversity at the high court. Even though women now comprise more than half of law school graduates, they continue to lag in representation as clerks at the nation’s top tribunal. They make up about one-third of the clerk posts yearly, according to a National Law Journal study. But the figure fluctuates yearly and the Supreme Court issues no demographic information for clerks. Blacks, Hispanics and Asians are further behind, the study found.

Clerks usually serve one year, but the significance of their job is that they help the nation’s top jurists set the country’s legal agenda, including reviewing and deciding major national issues like abortion, same-sex marriage and voting rights, among others.

About half of those who make it into the top clerkships are from the most elite law schools, principally Harvard and Yale. Typically successful candidates come from academically prepared backgrounds, top-notch law schools and often clerkships at lower federal courts. Then, after a Supreme Court stint, they usually take their credentials to a premium law firm where they receive hiring bonuses of $300,000 and up.

Efforts to bring aboard law graduates from more diverse backgrounds have fallen on mostly deaf judicial ears. With a few exceptions, justices have ignored or brushed off concerns over the composition of clerk ranks. A spokesman for the Supreme Court Monday said the court “has no comment” on the clerk diversity issue.

In the few public remarks on the issue, justices often appear to believe that the importance of their work and their harried schedules leave them little leeway to risk hiring a “dud,” as Justice Antonin Scalia once explained in a New York magazine interview.

“All other things being equal, which they usually are not, I would like to select somebody from a lesser law school,” he said. “And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled.

“It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.”

Justice Sonia Sotomayor – who is one of three female Supreme Court justices – has been more active about breaking the clerk hiring mold.

She has chosen nearly one-third minority clerks during her tenure, according to the National Law Journal data. And although he has been in the job less than a year, Justice Neil Gorsuch has hired, percentage wise, even more: 43 percent, composed of three non-white hires out of a total of seven – but only one woman, according to the study.

Only 8 percent of the hires Chief Justice John Roberts Jr. has made since he started his tenure in 2005 have been racial or ethnic minorities, the National Journal study found.

Justice Clarence Thomas, a Yale Law School graduate who likes to emphasize his up-by-the-bootstraps background, has hired from a broader spectrum of schools.

“I think we have to be concerned that almost all of us are from two law schools,” he said at a 2014 Yale Law reunion.

However, he has hired only 12 percent of minority clerks since 2005, according to the study. That is the same percentage that Justice Ruth Bader Ginsburg has hired.

Ginsburg and Justice Stephen Breyer have hired men and women clerks “in equal numbers,” the National Law Journal found, but the other chambers continue to be “male-dominated.”

One reason for the lack of clerkship diversity, noted Hanna Stotland, an independent school admissions consultant who formerly worked at Northwestern and Harvard law schools, is the highly personal nature of the job.

Justices describe clerk duties differently but the common thread is that clerks work in close physical proximity to them, and often on divisive and complex issues.

“They are sometimes called ‘elbow clerks,’” said Stotland, for those reasons. “There is no equivalent of professional recruiters or a human resources department for these jobs. Each chamber operates independently, and each relationship is like family.”

While some justices are making changes around the edges, the system remains a fairly closed circle of top-tier law schools, law professors and federal judges feeding candidates. The justices close the small loop by selecting from clerk candidates with the expected tickets – elite school, law review scholarship and federal court clerkship – punched.

Thomas gave more insight into the court’s thinking in a 2010 congressional hearing on the Supreme Court budget when Rep. Barbara Lee, a Democrat of California, asked why graduates from law schools such as Howard or Texas Southern or Boalt Hall, in California, were not getting clerkship appointments.

“The pool for us – all of our clerks, or virtually all, with rare exception – come from the court of appeals. So you look first at the court of appeals – what does that look like?” replied Thomas. “The reality is that Hispanics and blacks do not show up in any great numbers.”

And he continued, “I don’t think it’s up to us to increase the pool. It comes from law schools and other judges.”

Law professors like Frank H. Wu, who teaches at University of California Hastings Law School, say little has changed about the way the high court justices recruit and hire their clerks.

“It’s still an old boys’ network,” noted Wu, in an interview. “The job title doesn’t sound like much but it is the single best job after law school because it sets you up for the rest of your career.”

Aside from the occasional questions justices are asked, the paucity of minorities in the elite clerk positions rarely draws much public attention.

A 1998 protest held on the Supreme Court steps over the lack of black and Hispanic clerks prompted Wu, then serving on the American Bar Association’s Commission for Opportunities for Minorities in the Profession, to write that “the issue is who belongs at the center of our most significant public institutions.

“That symbolizes to whom the civic culture belongs in turn. The controversy over clerkships reflects our struggle to create a better sense of community—one that embraces our racial diversity,” he wrote.

Decades later – because clerkships are so coveted, Wu said in a phone call last week – little has changed about the selection of clerks.

“The legal profession is intensely hierarchical,” he noted, “and there is a group of law schools that vie to produce the lawyers who become federal judges. Nothing has changed about that.”

 

 

 

Contact the reporter responsible for this story: Elizabeth Olson at egolson1@gmail.com.

Contact the editors responsible for this story: Casey Sullivan at csullivan@bloomberglaw.com and John Crawley at jcrawley@bloomberglaw.com.