Lack of Women Supreme Court Law Clerks Shows Unconscious Discrimination

The big talk in law blogs this week is about the scandalously small number of women among the elitest of the elite, the law clerks to the Supreme Court justices. It isn’t just the number of women sitting on the bench that’s been reduced by 50 percent.

This year, only seven of the Supreme Court’s 37 law clerk’s will be women.

Shame on them.

When I clerked on the Supreme Court nearly 30 years ago, 5 of the clerks were women.

From five to seven in 30 years?

Why does it matter?

Supreme Court clerkships are like the final gold star in an academic record. They “only” pay $63,335, which is a lot less than these same kids could be making in the open market, but they open doors like no legal job does. Teaching jobs, the top “special assistant” government jobs, the best private practice jobs -- the clerks have their choice.

Clerks who sign on with top firms after their year of clerking get a signing bonus of $200,000 (I wonder if they’re interested in old clerks). The clerkship group becomes an elite fraternity of its own, providing the kind of informal network from which women have long complained that we tend to be excluded.

Clerks stay in touch two ways: you stay in touch with the clerks from your Term of the court, sometimes informally and sometimes with formal reunions; and every chamber has regular reunions of all the clerks for that particular Justice, so you get to know a whole group of former clerks, now many of them elite lawyers and powerful people, who share your fondness and loyalty to “the Justice.”

It is, believe me, a real and sometimes useful bond. I clerked for Justice Stevens, and hear often from former Stevens clerks.

In addition to connections and future prospects, a clerkship on the Supreme Court is also an unbelievable learning experience. While clerks sometimes brag that they decide the cases and not the Justices, the reality is that clerks do play an important role, but even more, they get an incredible opportunity to see up close one of the few institutions in our society that continues to operate largely in secret.

I learned how the Court worked. I also was lucky enough to work for a brilliant man who taught me an enormous amount about law, writing, reasoning, argument, legal expression, getting to the point, keeping it simple, and the usefulness of short sentences.

For anyone who plans to either practice before the Court or teach in the area of Constitutional law, a year as a law clerk provides insight available nowhere else. Many of my co-clerks have gone on to academic careers; of the four other women I clerked with, the two I have stayed in close touch with are senior professors at Yale and Stanford, and I teach at USC.

But there is also a long tradition of discrimination against women in selecting Supreme Court law clerks, which is why the decision of the Justices to leave the selections to chance, and hope that everything turns out alright, seems naïve at best. The absence of minority clerks has long been noted, and contributes to a continued absence of minorities at the top levels of the profession.

When I was applying, we used to hear “gossip” that certain judges and Justices wouldn’t hire women. The key to getting a clerkship, or one key anyway, is to clerk for the right “feeder judge;” certain judges regularly send clerks to the Supreme Court, although to some extent it’s a self-fulfilling prophecy because they tend to be the ones who get the students from the best law schools with the highest grades.

The best feeder in my day was the late, great J. Skelly Wright, the liberal hero of the D.C. Circuit, whose clerks always went straight to Justice William Brennan, the most liberal Justice on the Court. As a liberal, and as the president of the Harvard Law Review, that should have been my road.

But there was a catch. Sex. Mine. Judge Wright, according to my research, had had one woman clerk in about 30 years. Justice Brennan had maybe had one. Both of them had taken every single Harvard Law Review president who had ever applied to them without even holding an interview. Would they take me?

Judge Wright did. Justice Brennan wouldn’t. Nothing personal, Judge Wright explained to me on my first day of work, but I was going to have to find someone else to clerk for. Justice Brennan wasn’t going to hire me because I was a woman. That’s how it was.

I thanked him. At least I knew I wasn’t crazy. At least no one said that the reason there were only five women clerking out of 37, or whatever the total number was then, was because there were only five women qualified, or because random selection out of a group in which half start out women would produce 30 men and seven women.

At least no one handed out the sort of BS explanations that you’re hearing today for a pattern that only makes sense as the product not of conscious discrimination but of far more insidious and pervasive unconscious discrimination.

When I attended my first Harvard Law School faculty meeting as a junior faculty member, the conversation turned to the ideal junior faculty member to recruit. A number of senior faculty offered their views. It was remarkably insightful. The Law Review president/Supreme Court clerk type suggested we needed to look at the recent crops of Supreme Court clerks. The Ph.D types wanted Ph.D’s. The economists wanted economists.

Everyone, without realizing it, wanted a junior version of themselves. On a Court with one woman, where does that leave women?

In my day, we all understood when we got to the Court that there were five women because some of the Justices didn’t feel comfortable with women. We got it. Their fault, not ours. Their problem. Their responsibility.

It was their obligation to work towards equality and not simply to tell others what to do. Still is.

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Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.

Estrich's books include "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel.

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