ConfirmThem

By Carol Platt Liebau Posted in SCOTUS — Comments (5) / Email this page » / Leave a comment »

Over at The New York Times, Linda Greenhouse is getting the vapors because of the relative paucity of female Supreme Court clerks in the coming term's crop.

One who is in that position [of having no female clerks], Justice Souter, said he was disappointed to find himself without any female clerks. He explained that he had hired the top four applicants, who turned out to be men.

Sometimes, the simplest explanation is the truth. There are a lot of reasons for variations year to year, and it is possible, after all, for there to be a year when the overwhelming majority of top applicants simply happen to be male.

A similar situation can arise on law school journals (membership is an important credential for a Supreme Court clerkship), and, in fact, did in the 1990-91 year at The Harvard Law Review. Out of a class of about 500, 39 people were offered a Review slot; only 9 were women. Although there had been plenty of women in earlier years and the writing competition was blind (so that graders would have no idea of an applicant's sex), Greenhouse-style feminists raised the alarm about the reduced number of women, and called for the institution of affirmative action based on sex for Review membership (a terrible idea that, thankfully, was never adopted).

In fact, there were plenty of innocuous reasons for the relatively poor showing in that one particular year. For one thing, significantly fewer women tried out for the Review than men -- and here, note that Greenhouse's piece doesn't report how many women overall applied for the clerkships (I'd bet the numbers are far lower than those for the men).

Second, there were fewer women at the law school in general, and thus a smaller pool of candidates overall. Here, it's worth pointing out that there may be a relatively smaller number of female clerks working with "feeder" judges, and, frankly, clerking overall (as Greenhouse notes, the number of female clerks, and especially those with feeder judges, can vary from year to year).

Third -- though not relevant for the Review, it might be for the clerkships -- many of the women in top law schools tend to be liberal feminists. That can place conservative judges, who are entitled to ideologically compatible clerks, at a relative disadvantage.

Finally, it's possible that there were plenty of women of all ideological casts, and that plenty applied to all the justices, but -- at least this year -- they simply weren't as highly qualified (or as personally appealing) as the men. It's worth pointing out that clerks work closely with their justices, and personal compatibility is also an important element.

The last thing any truly capable and qualified woman should want is for justices to be pressured to hire other women simply because of their gender.

And sometimes, a banana is simply a banana . . . In any one given year, there may be fewer female Supreme Court clerks as a statistical blip, without sexism or bigotry of any sort -- and without it presaging the doom of the Republic.