For Supreme Court Clerks, the Majority Rules

The Supreme Court opens its new term Monday, upholding an old tradition.

Of the 34 law clerks who will work alongside the justices to research legal precedents and draft legal arguments, only one this term will be a minority, a Latina.

And for the second consecutive year, no blacks are among the prestigious few hired to help the nine justices decide and draft opinions on legal cases such as affirmative action and other racially sensitive issues.

Outraged by this historic domination of the clerk positions by whites, the National Assn. for the Advancement of Colored People and civil rights activists are rallying supporters for a protest in front of the Supreme Court when it opens, as usual, the first Monday in October.

“The fact that the nine justices who sit on the highest court in the land do not practice equal opportunity exposes a great deal of hypocrisy,” NAACP President and Chief Executive Kweisi Mfume said. “By not hiring more people of color, the Supreme Court is reducing opportunities and increasing the pain index for minorities.”

The activists admit that they do not realistically expect the justices to heed their pleas. Instead, their goal is to focus public attention on what Mfume calls the high court’s “shameful record in hiring minority clerks.”

Since 1972, fewer than 2% of the 428 clerks selected by justices have been black, about 4% have been Asian American, 1% have been Latino and none have been Native American, according to a three-month research project by USA Today. Over the same period, about 25% were women. The court refused to confirm or deny the numbers.

And even past justices, such as Thurgood Marshall, the nation’s first black to serve on the Supreme Court, fared little better. “Marshall tried to hire black clerks, and I think he had more than anyone else, but even he didn’t have that many,” said one of Marshall’s former black law clerks who asked not to be identified. “There’s a process of self-selection involved. Maybe blacks and women don’t think they’ll get the job, so they don’t apply.”

Like everything connected with the court’s decision-making process, impenetrable secrecy clouds the reasoning behind who gets picked and who fails to make the cut. The ethos of the court suggests that justices choose their clerks from an exclusive club of graduates of the nation’s elite law schools, most of whom already have served as clerks for federal appeals court judges.

Vikram Amar, an Asian American and former clerk to Justice Harry A. Blackmun, said individual justices model their offices like small, high-powered law firms, drawing clerks from a narrow pool of highly motivated applicants who have graduated near the top of their class at Harvard, Yale, Columbia and a select few other law schools.

Hewing to a tradition of silence, officials at the court declined to comment on the racial makeup of those who serve as clerks.

But four of the nine justices--Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Antonin Scalia and David H. Souter--have never hired a black clerk, according to USA Today’s statistics. Scalia, who was appointed by President Reagan and has served on the court since 1986, has the worst record of all: Of his 52 law clerks, none have been black, Latino or Asian.

Justice Stephen G. Breyer, a 1994 appointee of President Clinton, has the best record in percentage terms, with 15% of his clerks--one black, one Asian and one Latino--among the 20 he has hired. Justice Clarence Thomas, the court’s only black jurist, has the second-best record, having employed 12% of his clerks from minority groups, including three Asians and one black among the 33 clerks hired since President Bush appointed him in 1991.

Though they remain underrepresented among the clerks, women have been more successful at securing clerkships than racial minorities. Since 1972, justices have employed 108 women of the 428 clerks hired. This year, 12 of the 34 clerks are women.

Of the court’s two women jurists, Justice Sandra Day O’Connor, who was appointed in 1981 by Reagan, has hired 32 women among her 72 clerks. Justice Ruth Bader Ginsburg, who was appointed in 1993 by Clinton, has hired 10 women and 14 men during her tenure on the bench. Only Breyer’s staff has been equally divided between men and women clerks, with 10 of each.

Minority clerks who have experienced Supreme Court life firsthand say the justices might benefit from more diverse staffs.

“I agree with those who say the justices should widen the pool from which they hire,” said Ivan Fong, who worked as a clerk for O’Connor during the 1989-90 term and is now a deputy associate attorney general at the Department of Justice.

“There is an element of risk aversion in the selection or hiring process. The justices may have favorable experiences with law clerks from certain schools, or with those whom certain professors have suggested. I think that may limit the pool, perhaps, unnecessarily,” Fong added.

Randy Jones, past president of the National Bar Assn., an organization of black attorneys, said he was so alarmed by news reports about the lack of minority clerks hired at the court that he consulted with the Coalition of Bar Assns.--leaders representing the Hispanic National Bar Assn., the Native American Bar Assn. and the Asian-Pacific American Bar Assn.--and wrote Rehnquist to ask for a meeting to discuss ways to enhance opportunities for minority law clerks.

“We wanted to know what the process is and how to get qualified minorities considered to be clerks,” Jones said in an interview. “No one had talked to the Supreme Court about this, and we wanted to open the dialogue.”

The meeting never took place.

Rehnquist wrote Jones back to say he had not discriminated against anyone on the basis of race or nationality and that the justices choose their own clerks as they see fit.

“I have no control, nor would I seek to assert any control, over the hiring practices of my eight colleagues,” Rehnquist’s letter stated, adding that he would gladly accept recommendations from minority law associations for future clerks. “But I do not think the sort of meeting you propose in your letter would serve any useful purpose.”

Amar, who served as a clerk to Blackmun during the 1989-90 term, said it is reasonable that Rehnquist would not meet with the minority lawyers because it would appear to be negotiating with the groups for jobs.

“The chief justice and the court may be concerned about the perception that the hiring of clerks is a political process in which bargaining with individual groups is appropriate,” said Amar, who teaches at the Hastings School of Law at UC San Francisco. “But I wouldn’t automatically conclude that he doesn’t care about the issue.”

Amar said the justices generally choose from about 150 “indistinguishable candidates” who have worked as clerks for federal appeals judges. “Before anyone should infer there is any active or passive discrimination on the part of the court or any of its justices, the numbers that we would really need to look at are a comparison of the minorities in this pool of 150 to 200 most-qualified people and the number of minorities among the ranks of Supreme Court clerks.”

Regardless, the selection process is skewed in such a way that it almost guarantees that white males will be among the finalists for the clerk posts, said Mark Brown, a visiting law professor at the University of Illinois at Champaign-Urbana and the author of scholarly works on the clerk selection process at the Supreme Court.

“This is a very important issue, because many of the people who clerk at the Supreme Court go on to prominent law careers, especially as law school professors,” said Brown, who is white. “If they’re all white males, they’re going to reproduce themselves in the demographics of the teaching profession.”

Jones, of the National Bar Assn., said that minority law associations have formed a task force of former minority clerks, law school deans and federal judges that will seek to work quietly with the justices. Already he and several other black lawyers have had meetings with Thomas, who has expressed frustration with the small numbers of black law clerks at the court.

“I’m optimistic,” Jones said. “The protest will help heighten public attention. But this is going to be a long process. We are working to develop a long-term strategy to change the situation.”