The Supreme Court Clerkship Meritocracy
posted by Dan Filler
Lots of people, including the NYTimes, have noted and commented on the paucity of females among this year’s Supreme Court clerkship class. But one particular quote in the Times article stuck out. Linda Greenhouse wrote that Souter “explained that he had hired the top four applicants, who turned out to be men.”
Wait a second. The “top four applicants”? Are things really so cut and dried that one can clearly identify the top four applicants? First, it sure seems like most Justices filter out many excellent applicants. Based on the narrow range of schools that provide clerks, it appears that many Justices simply set aside highly qualified applicants based on school alone. I understand that this may be a simple way to limit an otherwise unwieldly pool of candidates. But it surely works to exclude many people – women, minorities, and yes, white men – who would do an equally good job. Many law non-Ivyish law schools have a top grad, an uber-star, who would make a top notch clerk. Alabama has one in the class of 2006 (a female) and I know more are in the pipeline.
But even if one accepts the assumption that four schools – Yale, Chicago, Harvard and Stanford (the schools identified by Brian Leiter as disproportionate feeders) – graduate better potential clerks than weaklings like Alabama, Texas, Temple, Vanderbilt, Emory, and Duke, I still doubt that whatever assessment tools the Justices use really identify the four objectively best candidates. Perhaps if the Justices had some data showing that a Yale Law Journal graduates who graduated summa from Williams is less likely to flame out than a Yale grad who graduated summa from Knox College, I’d buy it. And maybe the person who ingratiates himself to Larry Tribe really does pan out more often than the person who studies and thinks really hard, but never desires to do research assistance – or who does research for Jon Hanson. I just doubt it.
Diversity on the bench matters, if only because lived experience shows that people with different life experiences approach problems differently. (In that sense, Alabama’s monochromatic judiciary – 15 white men and 4 white women sit on the state’s three appellate courts – guarantees a cramped view of how to solve conflicts.) Diversity among clerks matters as well, partly because clerks sometimes do affect outcomes and partly because clerks form a primary pool for future solicitors, Supreme Court litigators, academics, and other leaders in the law. When Justice Souter and others (and clearly, Souter is relatively good on sex diversity) adopt dubious heuristics for evaluating candidates, their narrow choices have a wide ripple effect.
I’m certain that all nine Justices are focused on hiring good clerks. I simply believe that a pool of equally strong, and more diverse “top four applicants” can be found on the cutting room floor.