Post by sclcookie on May 31, 2006 2:26:42 GMT -5
High Court Clerks: Still White, Still Male
The intense competition for Supreme Court clerkships has been compared more than once to a market that responds to economic forces.
If the analogy works, then it has been a very bullish year for clerkship futures.
Think of it: A former high court clerk, John Roberts Jr., has succeeded another former clerk, William Rehnquist, as chief justice. 2 excellent books have just been published on the history and power of clerks, also adding luster to the job.
The resignation May 10 of Judge J. Michael Luttig from the 4th U.S. Circuit Court of Appeals abruptly shut off a major pipeline of high court clerks, intensifying competition among other judges. Luttig has sent 43 of his 45 law clerks to the Supreme Court in the past 15 years.
Cap that with reports of law firm hiring bonuses of $200,000 for former clerks, and the job's luster seems brighter than ever.
But as high court clerkships drift ever upward into the stratosphere of earthly rewards to which young lawyers can aspire, one stark reality persists: Recipients of this prize are overwhelmingly white, and mostly male.
8 years after attention was first called to the dearth of minorities among high court clerks, it appears that only 3 of the 37 clerks serving at the Court this term are nonwhite. No Hispanics or Native Americans seem to be among the ranks of law clerks, and not a single African-American male.
Viewed another way, it appears that all of the clerks are white in the chambers of 7 of the 9 justices. Only Justices Clarence Thomas and Stephen Breyer have hired minorities this term.
Thomas' chambers are the most diverse, with Chantel Febus, an African-American woman, and James Ho, an Asian-American male (and former Senate Judiciary Committee counsel), as clerks. The only other minority clerk appears to be Danielle Gray, an African-American woman working for Breyer.
Slightly fewer women are clerking this term, as well: 13 of the 37, compared with 15 of 35 last term. In the chambers of Justices Antonin Scalia and Anthony Kennedy, all 4 clerks are white males.
One caveat: As in the past, the Court itself does not provide any statistics about clerk demographics, so the tally is made through personal observation and other kinds of research -- including the always-helpful Underneath Their Robes blog, which reports many fun facts about the clerks but little about their racial or ethnic backgrounds.
But from a range of sources, it appears that the current number of minorities is substantially lower than in recent years. The 3 minorities this term compare with 5 last term, 8 the previous term and a record nine in 2002.
What now seems to be a high-water mark in 2002 came four years after news of the historically low numbers sparked protests at the Court and angry inquiries from Congress. At hearings on the Court's budget, justices would be grilled about the clerk situation, but in the past 2 years -- when scrutiny of the Court budget was shifted to a different House subcommittee -- no one has asked about the number of minority clerks.
That is fairly understandable, however, because justices and others have given repeated assurances that the entire clerkship supply chain -- top law schools and feeder judges, among others -- has been sensitized to the issue. But if the proof is in the pudding, the pudding, this term at least, is vanilla.
Anecdotally, it appears the usual vagaries of young lawyers' plans factored into the low numbers this term. Larry Thompson Jr., an African-American and son of the former deputy attorney general, was scheduled to clerk for Thomas this term, but Thompson postponed his service, as he had the year before. Currently, Thompson, a former Luttig clerk, is working as an associate at Weil, Gotshal & Manges in Houston and appears to be off the clerkship track for the long term. He declined to comment.
This is also the 1st term in which clerks affected by the new federal clerkship hiring plan have reached the Court. Under the plan, adopted in 2002, appellate judges agreed they would no longer hire clerks after their 1st year of law school but would wait until the start of their 3rd year. Some judges speculated that by giving law students another year to blossom, more minority candidates could emerge. If so, it did not result in more minority clerks at the Court.
Todd Peppers, author of the new book "Courtiers of the Marble Palace," which takes a historical look at high court clerks, says none of the possible explanations for low numbers of minorities is satisfying. When, a few years ago, members of Congress asked why justices could not cast their nets more widely to find more minority candidates, Peppers recalls, the justices often fell back on the "questionable" excuse that they could not afford to take chances that even one of their clerks might not be a top performer.
That excuse is flawed, says Peppers, not only because of its unsavory assumption that minority candidates are risky but also because of history. Back when justices had fewer than four clerks each, he says, some took chances in their hiring, "and it did not cripple the ship."
Alabamian Justice Hugo Black favored clerks from Southern law schools, and he once announced to a startled candidate that he liked to hire young students he could help. The candidate was a stutterer, and that appealed to Black. Other justices, such as Lewis Powell Jr. and Felix Frankfurter, also sought out a diversity of views among clerks, Peppers says, resulting in, at least in Frankfurter's chambers, screaming matches.
Peppers speculates that as the job of law clerk has become more intense and formalized, justices may place a higher premium on technical efficiency and less importance on diversity. Also, the cert pool, in which clerks share the chore of summarizing incoming petitions for eight of the nine justices, has made each individual clerk that much more important. And that may leave justices thinking that they would harm the work of the entire Court -- not just their own chambers -- if they hired clerks outside the mold. As a result, they tap the usual sources -- top students at Harvard, Yale and a handful of other schools -- and end up with very few minorities.
No matter what the reason, Peppers says, the dearth of minorities "opens a real issue of social justice." Given the value of a clerkship in the marketplace, he notes, it is regrettable that "a certain segment of society is just not getting this golden ticket."
The other new clerk book, "Sorcerers' Apprentices" by Artemus Ward and David Weiden, also concludes on this subject, "The relatively unchanged face of the century-old Supreme Court law clerk does not bode well for an institution that has been criticized for wielding too much power."
(source: Legal Times)
The intense competition for Supreme Court clerkships has been compared more than once to a market that responds to economic forces.
If the analogy works, then it has been a very bullish year for clerkship futures.
Think of it: A former high court clerk, John Roberts Jr., has succeeded another former clerk, William Rehnquist, as chief justice. 2 excellent books have just been published on the history and power of clerks, also adding luster to the job.
The resignation May 10 of Judge J. Michael Luttig from the 4th U.S. Circuit Court of Appeals abruptly shut off a major pipeline of high court clerks, intensifying competition among other judges. Luttig has sent 43 of his 45 law clerks to the Supreme Court in the past 15 years.
Cap that with reports of law firm hiring bonuses of $200,000 for former clerks, and the job's luster seems brighter than ever.
But as high court clerkships drift ever upward into the stratosphere of earthly rewards to which young lawyers can aspire, one stark reality persists: Recipients of this prize are overwhelmingly white, and mostly male.
8 years after attention was first called to the dearth of minorities among high court clerks, it appears that only 3 of the 37 clerks serving at the Court this term are nonwhite. No Hispanics or Native Americans seem to be among the ranks of law clerks, and not a single African-American male.
Viewed another way, it appears that all of the clerks are white in the chambers of 7 of the 9 justices. Only Justices Clarence Thomas and Stephen Breyer have hired minorities this term.
Thomas' chambers are the most diverse, with Chantel Febus, an African-American woman, and James Ho, an Asian-American male (and former Senate Judiciary Committee counsel), as clerks. The only other minority clerk appears to be Danielle Gray, an African-American woman working for Breyer.
Slightly fewer women are clerking this term, as well: 13 of the 37, compared with 15 of 35 last term. In the chambers of Justices Antonin Scalia and Anthony Kennedy, all 4 clerks are white males.
One caveat: As in the past, the Court itself does not provide any statistics about clerk demographics, so the tally is made through personal observation and other kinds of research -- including the always-helpful Underneath Their Robes blog, which reports many fun facts about the clerks but little about their racial or ethnic backgrounds.
But from a range of sources, it appears that the current number of minorities is substantially lower than in recent years. The 3 minorities this term compare with 5 last term, 8 the previous term and a record nine in 2002.
What now seems to be a high-water mark in 2002 came four years after news of the historically low numbers sparked protests at the Court and angry inquiries from Congress. At hearings on the Court's budget, justices would be grilled about the clerk situation, but in the past 2 years -- when scrutiny of the Court budget was shifted to a different House subcommittee -- no one has asked about the number of minority clerks.
That is fairly understandable, however, because justices and others have given repeated assurances that the entire clerkship supply chain -- top law schools and feeder judges, among others -- has been sensitized to the issue. But if the proof is in the pudding, the pudding, this term at least, is vanilla.
Anecdotally, it appears the usual vagaries of young lawyers' plans factored into the low numbers this term. Larry Thompson Jr., an African-American and son of the former deputy attorney general, was scheduled to clerk for Thomas this term, but Thompson postponed his service, as he had the year before. Currently, Thompson, a former Luttig clerk, is working as an associate at Weil, Gotshal & Manges in Houston and appears to be off the clerkship track for the long term. He declined to comment.
This is also the 1st term in which clerks affected by the new federal clerkship hiring plan have reached the Court. Under the plan, adopted in 2002, appellate judges agreed they would no longer hire clerks after their 1st year of law school but would wait until the start of their 3rd year. Some judges speculated that by giving law students another year to blossom, more minority candidates could emerge. If so, it did not result in more minority clerks at the Court.
Todd Peppers, author of the new book "Courtiers of the Marble Palace," which takes a historical look at high court clerks, says none of the possible explanations for low numbers of minorities is satisfying. When, a few years ago, members of Congress asked why justices could not cast their nets more widely to find more minority candidates, Peppers recalls, the justices often fell back on the "questionable" excuse that they could not afford to take chances that even one of their clerks might not be a top performer.
That excuse is flawed, says Peppers, not only because of its unsavory assumption that minority candidates are risky but also because of history. Back when justices had fewer than four clerks each, he says, some took chances in their hiring, "and it did not cripple the ship."
Alabamian Justice Hugo Black favored clerks from Southern law schools, and he once announced to a startled candidate that he liked to hire young students he could help. The candidate was a stutterer, and that appealed to Black. Other justices, such as Lewis Powell Jr. and Felix Frankfurter, also sought out a diversity of views among clerks, Peppers says, resulting in, at least in Frankfurter's chambers, screaming matches.
Peppers speculates that as the job of law clerk has become more intense and formalized, justices may place a higher premium on technical efficiency and less importance on diversity. Also, the cert pool, in which clerks share the chore of summarizing incoming petitions for eight of the nine justices, has made each individual clerk that much more important. And that may leave justices thinking that they would harm the work of the entire Court -- not just their own chambers -- if they hired clerks outside the mold. As a result, they tap the usual sources -- top students at Harvard, Yale and a handful of other schools -- and end up with very few minorities.
No matter what the reason, Peppers says, the dearth of minorities "opens a real issue of social justice." Given the value of a clerkship in the marketplace, he notes, it is regrettable that "a certain segment of society is just not getting this golden ticket."
The other new clerk book, "Sorcerers' Apprentices" by Artemus Ward and David Weiden, also concludes on this subject, "The relatively unchanged face of the century-old Supreme Court law clerk does not bode well for an institution that has been criticized for wielding too much power."
(source: Legal Times)