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DIVERSITY BEGINS AT HOME:
SUPREME COURT CLERKSHIPS AND AFFIRMATIVE ACTION

Professor Debra Strauss
Pace University School of Law
JURIST Guest Columnist

With diversity now under consideration by the US Supreme Court in the University of Michigan affirmative action admissions cases, it's opportune to re-examine a diversity issue in the Court's own backyard: the diversity of its law clerks.

Much attention has been focused in recent years on the marked lack of diversity among members of this elite group of recent law school graduates. The Court's law clerk hiring practices have come under increasing scrutiny, and minority leaders have called upon the Justices actively to change the way they hire. Since the Supreme Court has such a tremendous impact on the development of the law in this country, and their law clerks have a significant - according to some, perhaps even a strong - influence on Court's jurisprudence, these calls may not be misplaced.

When the issue of diversity among Supreme Court law clerks first hit the public spotlight in 1998, a profile of the 394 clerks hired by the then-current justices on the U.S. Supreme Court during their tenures revealed that fewer than two percent were African-American, even fewer were Hispanic, about five percent were Asian and only one-forth of the total were women. Three years later, the racial and ethnic composition of law clerks for the 2000-2001 term showed improvement. Seven of the 35 law clerks working for the nine justices that year, and then-retired Justice Byron White, were racial or ethnic minorities (two African-American, four Asian, and one Hispanic); this figure was up from five the previous term and only one the term before that, but the number of female law clerks dipped to ten from fourteen two terms earlier. In the following 2001-2002 term, however, the number of minority U.S. Supreme Court clerks reverted to levels that were typical before the issue first gained national attention. Minority leaders again expressed concern. Of the 34 law clerks for that year, only one was African-American, four were Asian, and none was Hispanic or Native American, for a total of 15 percent. Fourteen (41 percent) were women, apparently the highest number ever.

Of course it's easy to single out the Supreme Court for attention and criticism, yet it has to be recognized that the make-up of its law clerks is but a reflection of the law clerk population in the lower federal courts, particularly the U.S. Courts of Appeals, from which many Supreme Court law clerks are drawn by way of an informal "feeder" system. Chief Justice William Rehnquist emphasized this fact in a letter he wrote in November 1998 to members of Congress concerned with the diversity issue, offering it not as an excuse but rather as a source of hope: 展e select as clerks those who have very strong academic backgrounds, and have had previously successful law clerk experience, most often in federal courts. As the demographic makeup of this pool changes, it seems entirely likely that the under representation of minorities to which you refer in your letter will also change.

The recognition that the gender and ethnic balance of clerks on the Supreme Court is a function of the gender and ethnic balance of clerks in the lower courts led to my stewardship of the comprehensive National Judicial Clerkship Study, sponsored by the National Association for Law Placement and the American Bar Association. The study found that minority representation in clerkships was generally lower than in law school populations, although this did vary somewhat by ethnic group. Overall, only 15 percent of all judicial clerkships were held by minorities, despite the fact that minorities made up 30 percent of the general population and 20 percent of law students. However, this discrepancy did not result from a difference in the success of their applications, but rather a lower application rate of the minority students. Although women comprised a majority of the law clerk population, a disproportionately high percentage of women served in local and state courts rather than the more competitive and prestigious federal courts. This gap decreased slightly through the years and varied greatly by the courts of each circuit, but the study also revealed that success rates of women applicants as a whole were lower than those of males.

Since this study was done, there have been efforts on several fronts to increase the diversity of judicial clerks, including programs initiated by law schools, bar associations, and the judiciary. In the context of these efforts, one might now look to see if there have been any discernible results filtering up to the Supreme Court. For the present 2002-2003 term, the numbers have indeed bounced back and beyond, to the highest level of minorities to date among law clerks on the Supreme Court. This year痴 crop of law clerks includes nine minorities out of 35 clerks, or 26 percent: two are African-American, five are Asian, and two are Hispanic, although the number of female clerks is down to thirteen, or 37 percent. One must acknowledge that, for the present at least, diversity seems alive and well in the Supreme Court chambers, even surpassing the racial and ethnic diversity in law schools.

But what would happen if, in the wake of the Michigan admissions cases, affirmative action were to be downplayed or even deplored? Would the latest gains in the diversity of the Court's law clerk staff become just so much legal history? Or would the Court simply continue its present hiring policy? As the Justices begin to deliberate on the Michigan cases they might bear in mind that what they do may come home to haunt - or help - themselves.


Debra Strauss is an adjunct professor at Pace University School of Law, and a nationally-recognized expert in the area of judicial clerkships, providing consulting services to law schools, bar organizations, and the judiciary. Her latest book is Behind the Bench: The Guide to Judicial Clerkships (BarBri Group 2002).

April 4, 2003

GUEST COLUMNIST

JURIST Guest Columnist Debra Strauss is an adjunct professor at Pace University School of Law, and a nationally-recognized expert in the area of judicial clerkships, providing consulting services to law schools, bar organizations, and the judiciary. A graduate of Yale Law School, she served two clerkship terms for the Honorable Charles L. Brieant, former Chief Judge of the U.S. District Court, S.D.N.Y., and was in private practice at Rogers & Wells (now Clifford Chance LLP). She returned to Yale Law School as Director of Judicial Clerkship Counseling and Programs and established their successful judicial clerkship program. Ms. Strauss went on to serve as Project Director and author of the report for the National Judicial Clerkship Study. Currently, as adjunct professor at Pace University School of Law, she directs the Federal Judicial Extern Honors Program. In addition, she teaches at Fairfield University Charles F. Dolan School of Business as Visiting Assistant Professor of Business Law.

Her new book, Behind the Bench: The Guide to Judicial Clerkships (BarBri Group 2002), is already being hailed as an indispensable handbook for law students, practitioners, and potential judicial clerks.