Clerks III: What's with this year's SCOTUS hires?

Justices tap only seven women -- a new low -- for elite clerkships.

Published August 30, 2006 1:41PM (EDT)

From today's New York Times: "Everyone knows that with the retirement of Justice Sandra Day O'Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply."

Among 37 Supreme Court clerks for the new term, only seven are women. That's the first time since 1994 that the total has dipped below 10.

Wait, but weren't we just hearing that more and more women are graduating from law school? Yep: In 2005, they made up almost half the class. Back in 1994, the overall pool was actually much smaller.

What's going on, and how much does it matter? Justices Breyer and Souter (both generally female friendly in their clerk hires, like Justice Ginsburg) pointed to, as the Times paraphrased, "random variation in the applicant pool." According to Souter, the pool is rarely more than one-third women to begin with. Other justices say they simply hire the best applicants (some of whom, of course, have worked for them before), and sometimes it just shakes down this way.

Law-related blogs, evidently ablaze with speculation this summer, also cited (again, Times paraphrase) "the relative scarcity of female students among the top editors of the leading law schools' law reviews -- an important preclerkship credential -- and the absence of women among the 'feeder judges,' the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks." Some suggested that Justice Scalia, whose record is 2/28 for the last seven years, can't find sufficient numbers of women who are conservative enough for him. (How hard is he looking?)

What's also worth noting is the pipeline out of these elite clerkships: "The clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000."

All of that said, one year's hires is, statistically, not enough to make a federal case. Still, this story could still draw attention to a couple of other things. First, you might have fun with the article's accompanying graphic showing the justices' hiring history, in which telltale red squares -- relatively absent from Scalia, Kennedy and Rehnquist's columns -- may say more in a since-2000 pattern than they do in 2006 alone. (Note: Rehnquist hired fewer clerks per year than his colleagues, so his overall percentage of female clerks appears higher by comparison.)

Second, the clerks -- who play a considerable role in screening new cases -- could stand to be more diverse in lots of ways, including (but not limited to) race. As the Times reports: "The clerkship cadre remains overwhelmingly white."

This story has been corrected since it was originally published.

By Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of She also writes for the New York Times, Glamour, and many others.

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