Today Supreme Court Justices Clarence Thomas and Stephen Breyer made a rare appearance on Capitol Hill to testify before the House Appropriations Subcommittee, regarding the Court’s budget. It started out jovially, with Justice Thomas poking fun at Justice Breyer for agreeing with him for the very first time (at the 15 minute mark, regarding taking questions from the committee).
But an hour in, things got testy between the congressmen and the justices. Josh Blackman brought to our attention that the issue of Supreme Court clerk diversity came up. Congressman Ander Crenshaw asked the Justices why the members of the Elect are overwhelmingly graduates from Yale and Harvard. He delicately asked if they’re more qualified or if there are a disproportionate number of them applying for clerkships.
This led to a fifteen-minute discussion about clerkship diversity that started with alma maters, then moved to ethnic diversity. In response, Thomas threw the other SCOTUS justices under the bus (e.g., “MY clerks are diverse”), then threw feeder judges under the bus, and then threw law schools under the bus (e.g., “that pool comes from the law schools”).
But then Congresswoman Barbara Lee hit him with the bus…
The conversation starts at the 49-minute mark.
Rep. Crenshaw: There are a disproportionate share of clerks that come from either Harvard or Yale… Is the reason for that because people from Harvard and Yale are better qualified to be Supreme Court justice clerks or do a disproportionate share of students from those schools apply?
Justice Thomas throws the rest of the justices to the Congressional wolves:
Thomas: I for one think there are excellent kids… from all over the country… I tend to hire from a very broad pool. I have [clerks] from Harvard, Yale, Utah and Notre Dame… But it’s an individual thing. I hire my own clerks and I have my own criteria. And I’m certain the other members of the Court have theirs and with that may go their comfort level with moving beyond the Ivy Leagues, or too far beyond.
Thomas has made that argument before. He pointed out that he’s had the broadest base of law school grads as clerks, with the possible exception of Justice Stevens.
But Congresswoman Barbara Lee was not satisfied with CT’s answer. She pointed out that Harvard and Yale are “excellent institutions… but there are few minorities attending these law schools.” She asked why there aren’t grads from Howard or Texas Southern getting clerkships, or why there isn’t more “regional diversity, like Boalt Hall.” This led Thomas to throw feeder judges — i.e., the lower-court judges who send clerks on to the Supremes — and the federal courts in general under the bus:
Thomas: 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? Then you look at what we pull from that…
The reality is that Hispanics and blacks do not show up in any great numbers.
Lee: “They don’t show up” — why?
So then Thomas threw the law schools under the bus:
Thomas: I don’t think it’s up to us to increase the pool. It comes from law schools and other judges.
Then Lee pounced, and drove the bus right into CT (around the 58:30 mark):
Lee: But what’s in the pool has to do, unfortunately, with some of your decisions on the Supreme Court that have shut out many people of color in some of these institutions so if we go there, we could really have a good healthy discussion about some of your decisions.
Ouch. Well-played, Congresswoman Lee. Justice Thomas has, of course, been a prominent voice (and vote) against race-based preferences on the Court.
Lee then asked whether the justices could issue some kind of “edict” to the Court of Appeals to develop a more diverse pool of clerks. Sounds like a fun idea for a mandamus petition to us!
Breyer took pity at this point and intervened, telling Lee, “This conversation is not as in date as you might think. Things have changed in the last 15 years.”
We think Thomas may have been having some nasty flashbacks to being in the Congressional hot seat during his confirmation hearing days — and dreaming of getting back to a bench where he doesn’t have to speak.
Justice Breyer: Court may deal with health care legislation [C-Span]
Justices Thomas and Breyer testify in front of Congress on Diversity in Clerk Hiring [Josh Blackman's Blog]
Supreme Court wants more money for security concerns [The Hill]
Justice Thomas Laughs at His Silent Streak [The Caucus / New York Times]