Diversity among the Supreme Court’s clerks was the subject of a panel recently at New York University School of Law. Inspired by an article that appeared at the start of this year’s term (Linda Greenhouse, Women Suddenly Scarce Among Justices’ Clerks, N.Y. TIMES, Aug. 30, 2006, at A3), students in Law Women, the Latino Law Students Association, and the South Asian Law Student Association, with the support of the Coalition for Legal Recruiting, decided to put together a night to address diversity on the Court.
The panel featured five former Supreme Court clerks: Professor Cristina Rodríguez (Justice O’Connor), Professor Rachel Barkow (Justice Scalia), Aziz Huq of the Brennan Center for Justice (Justice Ginsburg), and Troy McKenzie of Debevoise & Plimpton LLP (Justice Stevens), and Dean Richard Revesz (Justice Marshall), who hosted the event. The panelists were not convinced, as the article was, about the dire straits of the Court’s clerks. They considered the term’s much-publicized dearth of female clerks a statistical aberration, rather than a trend. In their explanations, the panelists described the day-to-day duties of a clerk, which primarily involved working on the certiorari pool. They appeared close to concluding that clerks (whose favorite words, Mr. Huq quipped, are “deny, deny, deny!”) are merely there to crank out memos for their Justices, because, as all agreed, the nine Justices are going to as they please in the end. Clerks, according to these former clerks, are not especially influential on the Justices’ jurisprudence, despite the popular suggestion that they run the show.
The panelists did not go quite that far, however. After pointing to the limits of the clerks’ influence, they agreed that despite these narrow roles, more diversity among clerks is an important goal. Why this may be depended on who was speaking. According to Mr. Huq, it matters because clerks are future justices. Greater diversity in clerks today will result in a future Court that is itself more diverse, he argued, which is a goal that most people support, or should support. Mr. McKenzie and Professor Rodríguez agreed, and went further in their explanations: clerks are not just future justices, they are future leaders and powerful figures in the law generally. More diversity in legal leaders, they said, will not only improve the court, but law schools, the government, law firms, and other places where former clerks find themselves. Professor Barkow, building on these answers, stated her belief that there is also benefit to the Court in the short term. Exposing the Justices to persons who are different, she said, in a relationship where there is the opportunity to share experiences and perspectives gives the rather isolated Justices a glimpse at the world outside of the High Court. This personal contact may even influence their thinking, and although she conceded that this did not happen in her time on the Court, she did share an occasion during her appellate clerkship where sharing her own background did dramatically change a conversation in chambers.
The panel moved to reasons and remedies for homogeneity, with much agreement on the former and little on the latter. Reasons cited by the panelists for the lack of diversity among clerks included the importance of appellate judges, particularly “feeder” judges, and the role of recommendations and professorial support. They also noted that many potential clerks self-select out of the process, either because these students do not believe they are competitive candidates, or they prefer to pursue other options, namely lucrative careers in the private sector. Ideology, reflected both the promotion of candidates and their attractiveness to the Justices, figured largely in the discussion. The Federalist Society’s focused campaign in this field was highlighted by the panelists as particularly effective in finding and placing clerks. Remedies were harder to find, however, and there were few suggestions. This related to their agreement that so long as Justices selected their own clerks, there was little that could be done to effect broad change. The panelists noted this inherent limitation, and the low possibility that the power to select clerks would ever be taken from the Justices. Professor Rodríguez said that she believed (quite radically, she acknowledged) that law schools grading, an extremely important factor in clerk selection, was not necessarily best at capturing student’s strengths, but acknowledged this was part of law school that is unlikely to change.
In what is perhaps a fitting coda, recent unofficial reports about clerks for the 2008 Term appear to include more women, at least, indicating that perhaps the High Court is not as impervious to this kind of attention as might otherwise seem.