Debating diversity in its own ranks

US Supreme Court, under fire for discrimination in hiring law clerks, claims its practices are based on ability, not race.

For a recent law school graduate, serving as a clerk to a US Supreme Court justice is one of the most prestigious, sought-after, and difficult to obtain jobs anywhere in the nation.

It affords not only hands-on experience in crafting historic decisions of national importance, but also it provides an opportunity to develop lasting relationships with a Supreme Court justice and fellow clerks who are themselves headed for significant careers and leadership positions.

In short, it is a premier training ground for some of the brightest legal minds in the country - at an institution that is a main arbiter of sensitive social issues ranging from affirmative action to school desegregation to abortion.

That is why the National Association for the Advancement of Colored People (NAACP) and other minority groups are so concerned about data that show the vast majority of clerks hired by the nine Supreme Court justices are white men.

Of the 34 clerks hired for the current term, only one is a minority, a Hispanic woman. The rest are composed of 22 white men and 11 white women.

Over the years, the same trend is apparent. Since rising to the high court, the nine current justices collectively have hired 394 clerks. Of those, less than 2 percent were African-Americans, 1 percent Hispanic, and less than 5 percent Asian Americans. Roughly a quarter were women.

Debating the numbers

Civil rights activists say the statistics suggest the justices are biased in their hiring practices.

Others say bias has nothing to do with it, that the justices are merely seeking to hire the best of US law school graduates - by their criteria - and that significant numbers of minorities are not yet among that tiny, elite group.

"There is just a lack of people with the traditional qualifications among minority applicants," says a former Supreme Court clerk who served in a recent term. "There is just plain underrepresentation in the applicant pool."

The issue of diversity among law clerks arose in October at the beginning of the current court term when some 1,000 activists demonstrated outside the Supreme Court building demanding more minorities and women be hired as clerks.

Since that time, some members of Congress and civil rights activists have sought a meeting with the justices to discuss diversity. The justices have discussed the issue among themselves but declined a meeting with any outside groups.

In a letter made public this week, Chief Justice William Rehnquist defended the clerk selection process. "Each of us is satisfied that no person is excluded from consideration for a clerkship because of race, religion, gender, nationality, or for any other impermissible reason."

Mr. Rehnquist added the statistics are a concern, but "many factors entirely unrelated to the hiring of law clerks are responsible for this situation."

The two primary criteria used to select clerks include academic excellence, with applicants typically placing in the top 2 or 3 percent of their law school classes, and a clerkship for a federal appeals court judge.

What that means is, by the time they reach the Supreme Court, candidates have already faced rigorous competition. If a lower court judge is biased in selecting clerks or a law professor biased in grading, that bias extends to the Supreme Court under the current criteria.

Kweisi Mfume, president of the NAACP, says the process is "systematically flawed." He is appealing to the justices to adopt more flexible criteria in selecting clerks. "The justices have institutionalized a process that renders diversity virtually impossible."

Making inroads

Others say minorities and women are making inroads into this legal elite by winning key clerkships at the appeals court level that will open doors at the Supreme Court.

"Every year there are more and more minority students among the clerks at the court of appeals level, so progress is being made," says Melissa Saunders, a law professor at the University of North Carolina who clerked for Rehnquist in 1988.

"But obviously it is a slow process," says Ms. Saunders.

The clerk-hiring issue mirrors some of the same issues that arise in discrimination cases at the high court, says Michael Young, dean of the George Washington University Law School and a 1977 clerk for Rehnquist.

He says the justices focus on the selection process. Civil rights activists focus on the end result.

"I think there is a lot to be said for merit-based selection but you have to be certain and comfortable that the criteria used to determine merit are the right ones," Mr. Young says.

Many analysts believe the heavily tradition-bound court is unlikely to alter its selection process. But the hope is that individual justices will keep an eye out for talented women and minorities in the future.

Ultimately, the process is so subjective and intensely competitive there is no way of ensuring the success of any single candidate, no matter how talented or promising, former clerks say. With thousands of qualified applicants competing for 34 spots, the chances are minuscule. "It's sort of like a high school baseball player's chances of getting drafted for the Majors," says Saunders. "It is about those same odds."

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