This Year's New Supreme Court Clerks:Why Are Only Twenty Percent Women?
The Question, and the Unfortunate Conversation It Caused

By EDWARD LAZARUS

Thursday, Aug. 31, 2006

Every summer at the Supreme Court, one set of law clerks departs, and another set gets down to the business of preparing the justices for the new term starting in October. This year, the new cadre of clerks is notable in at least one respect: Of the 36 incoming clerks only 7 - less than 20% -- are women. Four justices - Antonin Scalia, David Souter, Clarence Thomas, and Samuel Alito - despite having four clerkship slots apiece, have not hired a single woman.

Seven out of 36 is a startlingly small number. According to the American Bar Association, 49% of law school graduates from 2005 were women. While I do not have statistics for the top law schools from which Supreme Court clerks are drawn, anecdotal evidence suggests that the ratio is much the same as for law schools generally.

At the Court, moreover, women have done much better than 20% in recent years. Over the last five years, women have made up between 37% and 41% of each clerk group. Next year's low ratio harkens back to the 1980s and early 90's when it was common to have fewer than 10 women among the 36 (give or take one or two) clerks.

(The justices don't hire many minorities either -- but the statistics for minorities in a given year can seem less damning, since, obviously, a given minority's law-school-graduation percentages are far lower than all women's. Viewed over time, though, the low percentages of minority clerks, too, become very troubling.)

A one-year drop in women's representation may not be especially meaningful. Still, a number of Court commentators have been speculating about the cause of this year's skewing as well as the historical pattern of female under-representation at the Court compared to the law school population as a whole.

For the most part, however, this speculation says more about how difficult it is to have a constructive conversation about gender than about the underlying issue of women at the Court.

One Suggestion By a Popular Blogger: More Men Are Geniuses Deserving of Clerkships

Much of the commentary has appeared on the popular conservative/libertarian law blog Volokh Conspiracy. The site's eponymous founder, Eugene Volokh, a highly regarded conservative UCLA Law School Professor, touched off the debate when posing possible answers to the question of why so few women clerks, Volokh's first suggestion was (among other factors) "possible differences in innate intelligence at the tail ends of the bell curve (what I'd heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)".

Volokh's suggestion, and the dozens of posts it elicited, serve to demonstrate two regrettable truths about public discourse: First, that even incredibly smart people are drawn into saying silly things to explain away troubling behavior by the justices; and, second, that having an honest conversation about gender differences is still very hard to do.

First, the silliness. Bill Gates is a genius. Nobel prize winners in math and science are geniuses. Supreme Court law clerks, however, aren't geniuses -- or at least not if their names aren't Richard Posner (the polymath federal judge) or a very few others (maybe even Volokh, a former clerk to Justice Sandra Day O'Connor). Only a former law clerk could have delusions of such grandeur!

Why the Clerkship Selection Process Isn't Targeted to Genius, Anyway

Sure, to get a Supreme Court clerkship you have to do darn well at a top law school. And no doubt, this requires smarts. But hard work, a tolerance for the often boring assignments of law school, choosing the right courses, and being downright driven are also essential ingredients. True genius ranks low on the list.

Moreover, the clerkship selection process is hardly designed to select for genius. Getting one of these coveted clerkships depends on such non-genius factors as having a friend who is a clerk when you apply, so that you have an insider supporting your candidacy. It really helps, too, if you become sufficiently chummy with the former-clerk law professors at your school that they will write you letters of recommendation. And to seal the deal, you often need a resume that reflects a political point of view (either conservative or liberal) that will appeal to the justices on one wing or the other of an ideologically-divided Court. .

In short, whatever the validity of studies suggesting gender differences at the far ends of the IQ spectrum (evaluating this claim is far outside my ken), it borders on the ridiculous to think that such differences play any material role in the low number of women Supreme Court clerks.

Is There Really A Benign Explanation for These Sharp Gender Differences?

So why would a really smart person advance this theory? Two reasons, I think.

First, there seems to be a reflexive hesitation among former Court employees, especially those of a conservative bent, to cast the justices in a negative light with respect to issues of race or gender.

With notable consistency, friends of the current conservative Court offer up pretty much every conceivable explanation for sharp statistical imbalances in the clerk workforce, before even mentioning the most obvious possibility - namely, that many of the white, post-middle age, male justices are more comfortable hiring younger versions of themselves than women or minorities. Nor do they much discuss the existence of the same problem at the lower federal court level, where mainly white, post-middle-age male judges feed their clerk-protégés to the justices.

To be sure, one can speculate about more benign contributing factors to the gender gap at the Court. Perhaps, for example, more high-achieving woman than high-achieving men opt out of the clerkship process for family reasons. Or perhaps high-achieving women law students are more liberal than their male counterparts, and do not apply to the conservative justices in significant numbers.

But perhaps not, as well. The Court is only one generation removed from the era when the Chief Justice - Warren Burger - actively lobbied against the appointment of a female justice on the basis of gender alone. Justice Alito, one of the Court's youngest members, went to Princeton when co-education was still controversial, and joined an organization that loudly protested the presence of women on campus. For some Justices, the numbers alone seem quite telling: Justice Scalia has hired only two women among his last 28 clerks.

Several of the Justices are deeply hostile toward affirmative action, and therefore potentially suspicious of applicants who might have benefited from affirmative action - as women, even now, occasionally may, at campuses like that of the relatively conservative University of Chicago Law School, which has at times had difficulty attracting top women candidates.

Is it really so difficult to imagine that a significant number of justices would be reluctant, at least subconsciously, to hire woman, and also studiously indifferent, at best, to having gender or racial balance among their clerks?

Echoing Harvard President Larry Summers: The Argument That Dare Not Speak Its Name?

All this said, the conservative willingness to ascribe gender disparities to seemingly irrelevant and allegedly innate gender differences, is not merely a question of being charitable to the Court. It also appears to reflect a deliberate challenge to what conservatives view, not without reason, as a smothering political correctness that they believe prevails in the academy, especially the legal academy.

It hardly seems coincidental that Volokh's partial explanation for the gender disparity among clerks echoes Harvard President Larry Summers' controversial musings about the gender gap among science professors - suggesting, offensively to many, that women may be innately less prone to achieve greatness in the sciences.

From the conservative perspective, the tar-and-feathering that Summers received reflects the constant truth that theorizing which does not reflect prevailing liberal wisdom about gender and race issues is not met with serious debate and analysis, but rather with censorious claims of bigotry. It's hard to spend time in legal academia without feeling the pressure of conformity that liberal orthodoxy creates.

If the many posts on Volokh Conspiracy are any indication, legal conservatives are spoiling for another round in the gender wars. It's doubtful that one year's hiring of Supreme Court law clerks will provide the occasion (front page coverage in the New York Times notwithstanding) But they are a sad reminder that, on these issues, liberals and conservatives are likely to continue to talk past each other for many clerkship classes to come.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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