Supreme Court

White Males Dominate The SCOTUS Clerk Ranks

The results are dismal.

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Hiring diverse clerks is apparently not a priority for the Supreme Court. According to a detailed analysis by Tony Mauro of the National Law Journal, progress in hiring anything but white males for the coveted positions has moved at a “near-glacial” pace. That is… beyond discouraging.

The NLJ study looked at all clerks since the start of the Roberts Court in 2005, and the results are dismal. A whopping 85 percent of all law clerks since then were white, and roughly two-thirds of the clerks were men. These numbers , while not a good thing, are somewhat better then they were in 1998 when the last major look at the diversity of SCOTUS clerks was conducted by USA Today. The percentage of African-American clerks increased from 1.8 percent to 4 percent; Hispanic clerks went from 1 percent of the clerks to ~1.5 percent; Asian clerks saw the largest increase from 4.5 percent then to ~9 percent. Women clerks went from ~25 percent to 34 percent. This is not the kind of progress the profession should be proud of.

There are some interesting tidbits in the data. Like, did you know the justice who has had the most racially diverse set of clerks? That’d be Neil Gorsuch. Though he’s only hired 7 clerks over the course of his time on SCOTUS, a total of 43 percent of them have been non-white. Sonia Sotomayor clocks in at the number two spot, with 30 percent of her clerks being non-white.

It’s also more than a little disappointing to learn that since Ruth Bader Ginsburg has been on the Supreme Court, she has hired only one African-American law clerk. Samuel Alito has also only hired one African-American to be a SCOTUS clerk. RBG does better with gender diversity; both she and Stephen Breyer hire roughly equal amounts of men and women. But that trend isn’t universal. Take Anthony Kennedy, who, since 2005 has hired six times as many men as women to be his clerks.

Mauro chalks a lot of these depressing results to a “passive approach” to diversity:

And yet, most justices appear to be taking a passive approach to diversity rather than actively seeking minority clerks or pushing their networks to identify more diverse candidates. “I’ve never had that precise conversation with any justice,” said Harvard Law School professor Richard Lazarus, a comment echoed by several other clerk-recommenders interviewed for this story.

The limited number of “feeder judges” whose courtrooms are thought to provide an acceptable training ground for SCOTUS clerkship also plays a decisive role in limiting the pool of candidates:

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And note this about the feeder judges the justices seek clerks from: The top 19 feeder judges—whose former clerks make up more than two-thirds of all Supreme Court clerks—are white males, according to the NLJ’s research.

At a 2010 budget hearing, Justice Clarence Thomas seemed to confirm the court’s passivity when asked about minority hiring. “I don’t think it’s up to us to change other federal judges’ hiring practices.” He added, “The reality is that Hispanic and blacks do not show up in any great numbers” in the ranks of candidates recommended by the feeder judges.

And let’s not forget, one of the key feeder judges is none other than the Ninth Circuit’s Alex Kozinski — and we now know women have been warned not to clerk for him.

There are other factors that stack the deck against diverse SCOTUS clerk candidates. There’s an “ideological sorting” that Harvard Law School professor Andrew Crespo identifies:

“The more liberal justices tend to hire a greater number of liberal-leaning clerks than the conservative justices, and vice versa,” Crespo said. “If the small number of African-American and Latino applicants are also disproportionately liberal, then there may be fewer clerkship slots for which they are realistically competitive candidates.”

Plus the entire clerkship track is designed as a system that delays the immediate monetary benefits of a Biglaw career in exchange for the promise of an elite career sometime in the future. Being able to delay or even forego the top-end money that a legal career can afford is a privilege that not all are able to take advantage of.

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I know the Above the Law audience doesn’t need a reminder about how important the job of Supreme Court clerk really is. Diversifying the law clerk ranks will undoubtedly benefit the entire body:

“This is an institution that is deciding things for everyone,” said Georgetown’s [Sheryl} Cashin. “Having a range of perspectives and experiences among the law clerks would be useful. There is an elitism and we need to acknowledge it.”

The sad truth is that there are lots of “reasons” any and every Supreme Court Justice can come up with to not actively seek diversity in their clerks. The work that Mauro is doing shines a light on the bias in clerkship hiring, and recognizing the problem is the first step to rectifying it. It needs to be a priority for all Justices that care about, well, justice.

headshotKathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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