L ast October in Washington, D.C., one thousand people gathered on the marble steps of the United States Supreme Court to protest the continuing absence of African Americans and Hispanics among the law clerks who work with the Justices to give meaning to the Constitution. Although the Court prefers to view itself as above partisan politics, it should see the important principles at stake.
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.
Despite the title of "clerk," everyone within the legal profession knows that the position is coveted. For the three dozen recent graduates working in the chambers of the nine Justices, the proverbial doors of opportunity are opened. The prestigious post not only is itself a wonderful job, but also starts off careers marked for success. After a year at the high court as combination ghostwriters– gofers, clerks write their own tickets as the saying goes.
In Edward Lazarus’s recent non-fiction account, Closed Chambers, the clerk corps emerges as ideological advocates who determine more than which cases the Court will review, greatly influencing how the Justices will vote on the merits. Lazarus was attacked for revealing secrets about the high court and he confirmed what observers have always suspected about the role of clerks.
However powerful the clerks are at the time, that potential is in their future. All judicial clerkships with the federal bench are worthwhile (and, incidentally, lower courts have become intensely competitive in recruiting students, apparently without increasing representation of people of color who might then pursue a Supreme Court clerkship). But because Justices are at the top of the hierarchy, so too are their clerks in an especially elite group.
Many federal judges were formerly clerks. For example, Chief Justice William Rehnquist himself served Justice Robert Jackson in 1952–53. Law firms regularly pay $50,000 signing bonuses to recruit clerks fresh from their unique apprenticeship. Law schools hire new professors who, though they have never practiced a day in their lives, possess that all-important qualification.
In choosing clerks, the Justices ought not set themselves above the law and beyond public criticism.
Chief Justice Rehnquist’s response to requests for a meeting from the National Bar Association was disappointing. He said he believed there would be no "useful purpose" for such a discussion.
Justice Antonin Scalia, responding to a reporter who was admittedly aggressive, replied to the question why he had never had a black clerk with an ambiguous "Why do you think?"
Neither Rehnquist nor Scalia has ever had an African American law clerk.
Justices can choose clerks based on their interest in a decent tennis partner or any other criteria because there has been until recently no scrutiny of their selections. While they must have the independence, which is crucial for executing their responsibilities in representative democracy, and they can be expected to prefer staffs who will share their opinions, they would do well to consider reform.
The current system is difficult to defend. It is nothing more than the Old Boy network. A handful of law professors who themselves belong to a network of ex-clerks, and "feeder" judges with political connections to the Justices, recommend a handful of candidates.
Of course, this approach has not produced results that are inclusive, unless taking a risk on an alumnus of New York University or Berkeley can be regarded as outreach. In particular, 20 percent of law school graduates are now persons of color and many attend schools ranked within the top ten schools. Yet less than 2 percent of the clerks ever employed by the sitting Justices were African American (7 out of 428), and only 1 per-cent Hispanic (5 out of 428). This term, the Justices have no African Americans and only one Hispanic. Furthermore, only one quarter of the clerks have been women.
Worse still, the approach does not reflect open competition. All of the law clerks have amazing resumes. Many more who could not even be considered— whose own law schools would politely advise them that they didn’t stand a chance—are comparable in actual performance.
The mistake is the belief that merit and credentials are the same. It scarcely benefits society to measure the former by a limited range of the latter. The belief that the best and the brightest or the cream of the crop can be identified simply and exactly harms all but a few of us who can and should contribute to the country. About half the hires by the current Justices have been from Harvard or Yale; virtually all of the remaining clerks are graduates of the other top ten schools.
Modest affirmative action, such as recruiting and reviewing a range of applicants, would likely help everyone. If the Justices would interview some possibilities from, say, University of Washington at Seattle or University of Minnesota, or Fordham or Emory—all schools whose finest could match those from Michigan or Stanford—they would increase the number of African American hopefuls as well as talented individuals from other backgrounds. It is disingenuous to suggest that such efforts amount to racial quotas.
The Justices who have insisted that they do not consciously discriminate on the basis of race or gender undoubtedly are right about their individual preferences. Nonetheless, they are government officials whose cumulative actions form a pattern that may have the unfortunate consequence of excluding people.
It is important to emphasize that there isn’t a basis for accusing specific Justices of bigotry, as some have implied for rhetorical effect. It would be needlessly inflammatory to do so, because their good faith doesn’t resolve "the American dilemma." Achieving racial diversity requires leadership and action. It isn’t likely to happen either naturally or accidentally.
Indeed, public comments from the Justices support the notion that it isn’t merely a matter of preventing explicit prejudice which properly concerns the Court. Justice Clarence Thomas, testifying before Congress in March, stated of the relatively low numbers of African Americans and Hispanics as clerks, "There is not a person at the Court who would not want to change this."
The unusual appearance by Justice Thomas, along with Justice David Souter, during hearings on the budget of the judiciary this spring, highlights another aspect of the controversy. As in other contexts where choices are made among people, decision-makers should be prepared to explain the process in public.
The Supreme Court’s failure is ironic. It was once regarded as a leader on civil rights, changing the nation with its unanimous desegregation cases. In another era, the Justices are proving they can be the least progressive branch of the federal government.
Mr. Wu, an associate professor at Howard University, served as a law clerk to the late United States District Judge Frank J. Battisti in Cleveland.
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