November 15, 2004
After a couple of years of hiring record numbers of minority law clerks, the Court this term seems to have slipped backward. None of this term's 35 clerks is African-American, and the complement of clerks in the chambers of Chief Justice Rehnquist and Justices Antonin Scalia, Anthony Kennedy, David Souter, and Stephen Breyer are all white. Rehnquist also has no female clerks.
Since attention was drawn to the demographics of law clerks in 1998, the Court itself has offered no official assistance in tallying the racial or ethnic backgrounds of its clerks. But based on research and observation, it appears that 19 of the clerks are white males, 11 are white females, one is a Hispanic male, and four are Asian-American females. Adding together the Hispanic and Asian-Americans, that totals five minorities, down from eight last term and a record nine the term before that.
Those familiar with the crop of applicants chalk up the decrease to the vagaries of law school competition and other factors. Justice Clarence Thomas was scheduled to have an African-American law clerk working for him this term -- Larry Thompson Jr., the son of the former deputy attorney general, who is a longtime friend of Thomas -- but his start was put off until next term. The impact of the law clerk hiring plan that slowed down the competition among appeals court judges for top candidates last year won't be felt at the Supreme Court level until next term's class of clerks.
The African-Americans who are at the top of the classes of the law schools most clerks are drawn from -- Harvard and Yale, primarily -- are often in demand for more lucrative positions, say some observers. "The pool just isn't there yet, and those who are available are snapped up instantly," says one judge familiar with the law clerk landscape.
The lagging economy may also be a factor, says Debra Strauss, author of the leading book on judicial clerkships. Minority law students saddled with debt may be under more pressure than usual to seek scarce law firm jobs rather than take a lower-paying two-year law clerk detour -- clerking for an appeals court judge, then a justice.
"The economy can definitely have an effect," says Strauss, who offers advice and information on clerkships through her Web site: www.judicialclerkships.com. Strauss says the American Bar Association and other organizations have stepped up outreach efforts to attract minorities to clerkships, but help with loan payments is still a problem.
As usual, Harvard was the predominant source for high court law clerks [nine], with the University of Chicago, placing seven clerks, not far behind. Five clerks are Yale Law School alumni, and four went to Stanford. Another recently noted trend has continued this term.
Eleven of the law clerks came to the high court after doing something else since their appeals court clerkship. James Dowden, for example, worked at Ropes & Gray in Boston and taught at his alma mater, Boston College Law School, before beginning his clerkship with Justice Breyer.
The top feeder judge was Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, who sent four of his clerks to the Supreme Court. Three of D.C. Circuit Judge David Tatel's clerks are at the Court this term.
Correction: In the Nov. 15 issue, the Courtside column's demographic tally of Supreme Court law clerks omitted a Hispanic female working in the chambers of Justice Stephen Breyer. The clerk, Christina Burnett, is of Puerto Rican descent. Her inclusion brings the total of minority clerks this term to six.
Source: "Clerk Tally," The Legal Times, 15 November 2004, p.12.
[Originally reprinted in Underneath Their Robes (UTR, the former site of A3G), http://underneaththeirrobes.blogs.com/main/2005/04/utr_discovery_r_1.html]