USA TODAY March 13, 1998
WASHINGTON - With only two female justices and one black justice, the
nine-member
Supreme Court does not yet look like the rest of America.
But as far as the nation's highest court must travel to achieve racial,
ethnic and
gender diversity, the corps of powerful young law clerks who work for
the justices
has even further to go.
A first-ever demographic profile of the Supreme Court law clerks finds
that fewer
than 2% of the 394 clerks hired by the current justices during their
respective
tenures were African-American, and even fewer were Hispanic. About 5%
were Asian.
Women represent an increasing proportion of clerks, but they still
amount to only
one-fourth of the total.
The profile was conducted by USA TODAY as part of a five-month
examination of the
growing power of the law clerks.
Four of the nine justices - Chief Justice William Rehnquist and Justices
Anthony
Kennedy, Antonin Scalia and David Souter - never have hired a black law
clerk.
Rehnquist has hired 79 clerks since joining the Supreme Court in 1972,
none of
them black and only 11 female.
The statistics tell a stark story: Even though more than 40% of law
school
graduates now are women and nearly 20% are minorities, they largely have
been
bypassed for the most prestigious work a young lawyer could have. As a
result, law
clerks' powerful dual jobs of screening cases and drafting opinions -
which often
have dramatic effect on race and gender relations, among many other
issues -
remain mostly in the hands of white men.
"A case that doesn't look important to a white male clerk from the
Northeast may
be important to a woman from California," says Catawba College professor
Martha
Swann, who has studied the court's clerk hiring process. "If you have
all white
males from Harvard as clerks, they won't intentionally be biased, but
they will
be."
"It's like a closed shop. The concept of fair representation has not
taken hold at
the Supreme Court," says Howard University law professor J. Clay Smith
Jr., author
of a history of black lawyers in America. "That job is a ticket to a lot
of things
- wealth, academia, elite government jobs - and you don't get that job
if you're
not part of the club."
In fact, the number of women and minorities among Supreme Court clerks
is low
enough that if the court were a company, the statistics alone would
prove illegal
discrimination, says Stetson University law professor Mark Brown, who
once worked
at the court and has studied the gender breakdown of law clerks.
"Clerks are (the justices') emissaries to the world," Brown says.
"People of
different backgrounds bring in some different thinking for the justices.
If they
are all white males, you just perpetuate the dominance of males in the
legal
profession."
But unlike a private corporation, the Supreme Court cannot be sued for
employment
bias. The Supreme Court, while it espouses equal employment policies, is
not
covered by federal laws barring workplace discrimination. The high court
does not
even keep track of its minority hiring, spokeswoman Toni House says. The
rest of
the federal judiciary keeps demographic statistics and has an
equal-opportunity
program aimed at hiring more minorities, but the Supreme Court is not
included.
To tally the demographics, USA TODAY contacted many former clerks to ask
about
themselves and other clerks. In addition, clerk rosters and photos in
employee
directories were consulted. Finally, each justice was sent the
newspaper's list of
the racial and gender breakdown of his or her clerks to check accuracy.
Narrow pool
The dominance of whites among clerks is pervasive, no matter the
political bent or
background of the justice who did the hiring.
Justice John Paul Stevens, on the court since 1975, is the only current
justice to
have hired more than one black clerk. Of the 58 clerks on his staff,
three were
black.
The late justice William Brennan Jr., one of the century's leading high
court
liberals who served on the court until 1990, never hired a black law
clerk in 34
years.
The issue, critics agree, is not overt discrimination by the justices,
though they
have complete discretion over who gets picked for the $45,823 a year
jobs.
Instead, critics say, the trouble is that all the justices rely on a
"star" system
at elite law schools that brings a disproportionately high number of
white males
to the court's attention.
The USA TODAY profile confirmed that the clerks are drawn from an
exceedingly
narrow pool.
Nearly 40% of the total roster of current justices' clerks attended
Harvard or
Yale law schools. During the past decade, the current justices have
selected more
than 130 clerks from Harvard and Yale law schools alone - almost half of
the
clerks during that time.
"The whole system is a mess," says Yale law professor Stephen Carter, an
African-American race relations scholar and former clerk for the late
Justice
Thurgood Marshall. "It's a very narrow search, and the court would do
well to take
care that they are not overlooking someone. . . . Justices rely on a
small network
of recommenders who overwhelmingly draw into their orbit students who
are white."
"To the extent that women are underrepresented, it reflects that women
don't tend
to make as high grades or make law review as much as men," says Lisa
Grow, who
last June became the first woman in the history of Harvard law school to
graduate
summa cum laude.
"It represents historical trends," says Grow, who is upset about the
pattern.
"It's a troubling disparity, but I don't know why it's true."
As one of the women who made it into last year's constellation of law
school
stars, it goes almost without saying that Grow, currently clerking for
appeals
court judge Michael Luttig in Alexandria, Va., will be a clerk at the
Supreme
Court next year. "The prospect is a little exciting and terrifying at
the same
time," she says.
How they get there
If law clerks are neophytes when they serve their justices, they are
even younger
when they are selected for the job. The road to becoming a Supreme Court
law clerk
begins early in law school, usually at Harvard or Yale.
That is where federal appeals judge Michael Luttig is on the lookout for
talent he
can groom and send to the Supreme Court. Most Supreme Court law clerks
first spend
a year clerking for an appeals judge before heading to the nation's
highest court.
Luttig, himself a former clerk, is one of a few "feeder" judges whose
clerks often
head to the Supreme Court. "All but two of my clerks have gone up,"
Luttig says
with pride. Luttig has served on the U.S. Court of Appeals for the
Fourth Circuit
since 1991 and has sent 16 clerks to the Supreme Court.
Other top "feeder" judges: conservative appeals judges Laurence
Silberman of
Washington, D.C., who has sent 20 clerks to the Supreme Court, and
Californian
Alex Kozinski, who has sent 18.
The Luttig clerks who will be heading to the Supreme Court this summer
first
applied to Luttig in February 1996, midway through their second year of
law
school. Armed with the promise of an appeals court clerkship, they then
applied to
the Supreme Court justices and were hired before they even started work
with
Luttig.
In short, picking a clerk is a gamble not unlike investing in a race
horse. There
is little room for mistakes. And because they're at the Supreme Court
for only a
year, there is enormous pressure for clerks to hit the ground running.
"The last thing I want to do is send a young person up there who is not
ready,"
Luttig says. As a result, Luttig acknowledges that he uses tried and
true methods
for picking clerks, methods that make it harder for someone from a
lesser-known
law school or an unconventional background to rise to the top.
One of Luttig's most reliable sources, he says, is word of mouth from
his current
clerks about up-and-coming students. "The professors don't really know
the
students," he says.
Likely candidates are brought in for lengthy interviews aimed at making
sure "they
take the law deadly seriously, and not as an engine for social change."
Luttig, a one-time Bush administration Justice Department official,
tends to send
his clerks to conservative justices, though he advises his clerks to
apply to all
nine.
Luttig says there is nothing in his selection process that consciously
excludes
minorities. And Luttig speaks wistfully of a recent black Harvard Law
School
graduate he would have loved to hire and send on to the Supreme Court.
"He went
with an investment banking firm instead."
But Luttig does acknowledge that there is a tendency to go with the top
students
at the top law schools who already have been scouted by current clerks
and other
people he knows.
It's a star system carried out within a tiny circle of acquaintance,
critics say,
so who ends up clerking for the Supreme Court is almost preordained.
"I wouldn't hesitate to hire anyone who I believed had the requisite
capabilities," Luttig says. "But it is harder to assess that package on
cold paper
than it is to take the top five or 10 people from Harvard or four or
five other
top law schools. I'd be delighted if someone in that group turned out to
be a
black woman or a black male."
The justices, too, have ways of screening applicants.
Sandra Day O'Connor wades through 500 or more applications herself and
usually
comes up with a gender-balanced foursome. She also looks for some
representation
from a law school in her native West and, often, at least one clerk with
musical
talent - for the court's Christmas party - and another who could join
her in
tennis.
Kennedy uses a committee to screen applicants that is made up of former
clerks as
well as his son Gregory, a New York lawyer.
"If you want to be a Supreme Court law clerk, go to a school where
clerks often
come from, or where the justice went to," Catawba College's Swann says.
"There is
a true elitism to who gets to play the game."
Four of the nine current justices earned law degrees from Harvard -
Stephen
Breyer, Kennedy, Scalia and Souter. A fifth, Ruth Bader Ginsburg,
attended Harvard
before switching to Columbia Law School. Rehnquist and O'Connor are
Stanford law
alums, Stevens went to the University of Chicago law school and Clarence
Thomas
went to Yale.
University of Virginia alumnus Steve Smith, Justice Thomas' only black
law clerk
so far, also is critical of the system. "It's not enough to be from
Harvard. You
have to be on law review, too," he says. "There's a good-old-boy network
at work.
It's hard for other schools, like Howard University, to get into the
loop."
Howard is a traditionally black university with a well-regarded law
school that
produced the nation's first black justice, Thurgood Marshall, but only
one law
clerk in history.
"People tend to go back where they came from, or where they have a
comfort level,"
says Donald Thigpen, head of Howard Law's alumni association. "It's a
very
unfortunate situation."
Adds Howard's Clay Smith, author of the book on black lawyers: "There's
an
educational marketplace discrimination that leaves a lot of people, a
lot of
jewels, out."
Smith says a Howard grad from the early 1980s is the only graduate of
one of the
four traditionally black law schools in the nation to serve as a Supreme
Court law
clerk.
Margaret Tuitt, who helps Harvard law school graduates obtain
clerkships, says the
university has tried to encourage more minority students to aim for
clerk
positions at the high court.
Success has been elusive, she says.
"People are self-selective," she says. "Finances are a factor, and a lot
of people
feel the burden is too high." She says many minority Harvard graduates
emerge
saddled with debt, unable to make the commitment to two years of
relatively low
pay that comes with clerking at the appeals court and Supreme Court.
"There is a bonus after the fact," Tuitt says, referring to the high pay
clerks
often command after they leave the Supreme Court. "But many people
cannot afford
to wait. I don't know if the numbers (of minorities in clerkships) are
ever going
to be huge."
And the problem is self-perpetuating. Stevens, like Luttig and other
justices,
often enlists his clerks to help screen future candidates, and they
usually
advance the names of students they know.
"I don't have any affirmative action program for hiring clerks except
maybe
geographic," says Stevens, who likes to hire clerks from a wider range
of regions
and law schools.
Yale law professor Carter, though critical of the low representation of
minorities
among law clerk, also says, "I would hate to see a quota system, and I'm
not
calling for affirmative action. But I do think the justices should make
a more
detailed search."
Miguel Estrada, one of four Hispanics ever hired as a clerk by the
sitting
justices, dismisses the statistics showing little representation by
minorities.
"If there was some reason for underrepresentation, it would be something
to look
into," Estrada says. "But I don't have any reason to think it's anything
other
than a reflection of trends in society."
Preeta Bansal, a former law clerk for Stevens whose ancestors are from
India, sees
another reason for all the white male clerks: "These are old guys on the
court.
The personal relationship between the clerk and the justice is so
important that
who they are more comfortable with is more important than who they are."
Adds Carter: "They are confidential positions, but I hope it is not the
case that
we have justices who are uncomfortable with clerks of a different race."
A bidding war
The busiest time for a law clerk is the spring and summer, when the pace
of
opinion-writing picks up. Seven-day work weeks are common. It is also
the time
when the attention of the clerks turns to what they should do next, once
their
term ends in July. Some clerks, confident that they'll have no trouble
getting
work, don't even begin to search until their time at the court is up.
But others begin to put out feelers earlier than that, and some of the
major law
firms that place a high premium on hiring former clerks begin making
informal
approaches while the clerks are still working at the court.
Those early contacts are a delicate matter because many of the same law
firms that
are wooing the clerks have cases pending before the court in which the
clerks
might be writing opinions.
The clerks' code of conduct, promulgated by the Supreme Court in 1989,
allows
clerks to "seek and obtain employment" that would begin after their
clerkship.
Clerks who do are then required to "promptly bring this fact to the
attention of
the appointing justice" if their new employer has a matter pending
before the
court.
But the code leaves it up to each justice, without public review or
scrutiny, to
determine whether the clerk should continue to work on those matters.
"There are no hard and fast rules," says a lawyer who helped recruit
former clerks
for a major law firm. "If we took a clerk to lunch, most of them would
not feel
like they had to stop working on our cases."
But this Washington, D.C., lawyer, who asked to remain anonymous because
his firm
frequently argues before the court, said his firm made a rule of not
trying to
recruit all the clerks of any one justice at any one time. Without the
rule, he
said, a justice might be effectively frozen out of writing an opinion in
the case
because all the justice's clerks could feel compelled to bow out or
recuse
themselves.
But ethical concerns rarely get in the way of the aggressive pursuit of
former law
clerks for private law firm jobs. And the Chicago law firm of Sidley &
Austin has
the reputation for seeking law clerks most aggressively.
"Every year, a dozen or so of the clerks go off to teach and for other
reasons
another dozen might not be available, so you're talking about 10 or 12
lawyers a
year who are being courted by the top 30 firms nationwide," says Sidley
partner
Carter Phillips.
Phillips won't say what hiring bonus his firm will offer former clerks,
but other
recruiters say the $50,000 barrier was broken for the first time this
year at more
than one firm. That sounds like a lot, but some clerks argue that it
makes up for
the low salaries they were paid during their two clerkships, far lower
than the
private sector salaries they could have commanded coming out of top law
schools.
Are the clerks worth the extra money to private firms? Definitely yes,
Phillips
says.
"In a sense they've been pre-screened for us," he says. "They've been
exposed to a
wide range of law and the judicial process, and we know they are driven;
they work
very, very hard. They will bill 2,200 to 2,500 hours a year at a
tremendous rate
of efficiency. It makes economic good sense." (A lawyer who takes two
weeks'
vacation would have to bill 50 hours a week to clients to reach 2,500
hours in a
year.)
Finally, there is the problem that almost all clerks talk about: the
deflated
feeling when they shift from a year at the legal world's Mount Olympus
to the
tedium of daily law practice.
"You get an inappropriate idea of your importance in the world for a
year, and
then you're out doing mortgage foreclosures," Stevens says. "After you
leave,
there's a real letdown."
Says Phillips: "Whatever pumps you through the entire year to work 12 or
15 hours
a day suddenly ends. There is a psychological adjustment."
That adjustment is made harder by the fact that clerks are barred from
practicing
before the Supreme Court for two years after their clerkships. While
their new law
firm colleagues are handling cases before the court they know best,
these new
former clerks must remain at the periphery.
But after the two-year prohibition, many clerks return to appear before
the high
court. Political scientist Karen O'Connor, who studied the later careers
of
Supreme Court law clerks, found that as many as two-thirds of the clerks
from some
years eventually have appeared before the court as private or government
attorneys.
"Clerks know which buttons to push to persuade individual justices as
well as the
court as an institution," says O'Connor, an American University
political science
professor. "There is a clerk connection."
By Tony Mauro, USA TODAY
Contributing: Aaron Davis