August 31, 2006

posted by Dan Filler

It is interesting that Souter says he hired "the top four candidates" for the job. In a claim of workplace discrimination, no other employer stating it too "hired the top candidates" could so easily escape the suspicion of discrimination. In fact, many of the discrimination decisions handed down by the Supreme Court itself, require employers to use hiring criteria that create larger applicant pools. Are we to assume that only the Supreme Court can "hire the best and the brightest?"

And if the Supreme Court can only hire "the best and the brightest" - how dare they demand that profit-driven shareholder-owned internationally-competing businesses do otherwise.

Whatsamatta, Columbia isn't a feeder?

Dan,

When it comes to faculty hiring, how do you determine the "best" or "four best" candidates that are applying? I'll be you use pretty much the same standards as Justice Souter does.

Ally, you are surely right that faculty hiring committees use many of the same heuristics as the Supreme Court. But on balance, I think they are used less rigidly. This is because most schools recognize that they are balancing a number of different factors in determining the most appropriate hires. The definition of "top" or "best" will vary widely from school to school. When Harvard seeks the "top four" in the field, it really means top scholars. Drexel seeks truly excellent scholars as well, but we recognize that the school will not succeed if those scholars are not also strong teachers and active participants in a community. As hard as this may be to believe, I am certain Harvard would recruit people unacceptable to the Drexel faculty. Less surprisingly, the opposite is also true. In essence, my argument is that the Justices ought to realize that all clerks cannot be judged on a single scale. Every candidate I've ever met - for every job - brings strengths and weaknesses. A Supreme Court Jusice needs hard workers, sharp thinkers, clear writers, good negotiators, deft politicians, great researchers, trusted aids, reliable assistants, sympathetic souls, creative problem solvers, and a bunch of other things. I believe that a Justice benefits from having clerks with a variety of skills and traits. I'm not sure all members of the Court recognize this. I think most law faculties do.

The circuit judge I clerked for (definitely not a Supreme Court feeder) believed that there were tons of excellent qualified clerks out there, so his job was just to hire someone with whom he'd work well. It's a complete fiction of the competitive world we've all survived to get to this point in our careers that there is some way to rank and determine "the best" in these very subjective fields.

Dan, I'm curious: how do you know what a Supreme Court Justice needs? And why are you better at knowing this than Justice Souter himself, who has worked as a Justice for 15 years and had about 60 clerks, some of whom did a better job than others?

I have filed a dissenting opinion on this issue. At the level of the Supreme Court, at least (that is, because of what kind of questions the Supreme Court answers), I disagree with the argument that "[d]iversity among clerks matters," perhaps even less so than does "[d]iversity on the bench."

Dahlia Lithwick apparently thinks that this diversity it is so much of an issue that it becomes an issue in and of iteself that "some of the most important jurists in America — from some 'feeder judges' to Justices Kennedy and Scalia — just don't care." Is there any reason that we ought to care? Unless one belives that one's gender defines one's view of law, it isn't readily clear why we should. And I find it hard to believe that anyone could seriously advocate the position that there is a distinctly female perspective on the cases that come before the Supreme Court of the United States:

What is a "female" perspective on the Detainee Treatment Act? Is there a "female" perspective on excessive damages - and if so, why did Justices Ginsburg and O'Connor find themselves on opposite sides of BMW v. Gore? Is there a "female" perspective on AEDPA, and if so, why did Justices Ginsburg and O'Connor find themselves on opposite sides of Lockyer v. Andrade? I am not sure what difference a clerk's (or Justice's) gender makes to the question of whether the due process clause "prohibit[s] Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong," Clark v. Arizona, whether a dam "raises [sufficient] potential for a discharge ... [that] §401 [of the Clean Water Act] is triggered and [thus] state certification is required," S.D. Warren Co. v. Maine Bd. of Environmental Protection, or whether "[a] refusal to apply the Federal Tort Claims Act’s judgment bar is open to collateral appeal," Will v. Hallock. Could you identify, Dan, a single case decided last term where the court benefited from a specifically female perspective, and explain why? Could you identify a particular case from OT'02, the previous perigee of female SCOTUS clerkdom, which suffered from a lack of estrogen among the clerks?

Is there a value to diversity absent the so clearly non-existent "specifically female" (or even "speficially feminist") perspective on law, and if so, what is it?

To take it out of the pure gender context, Dan's comments are surely right to some degree. If you were hiring a law faculty, you would want a "diversity" of people with different specializations. For example, you would want a criminal law scholar, a contracts scholar, a torts scholar, etc. And it would be undeniable that gender and race, among other things, influence the scholarship and perspective in some areas. Thus, I would be greatly surprised if leading male and female scholars in domestic relations law did not have different perspectives, and a law school seeking to have a truly outstanding reputation in domestic relations law would want both those perspectives, likely leading to a de facto state where it had to hire both a male and female scholar in the field.

Taking it more generally, perspectives matter in judicial decision making. And gender matters in forming perspectives. It may not be a dominent factor, but it certainly is a factor. This is probably undeniable as a matter of the factual record.

My problem is that the entire premise of antidiscrimination law is to deny either that (1) race and sex influence perspectives or, (2) that perspectives matter, or (3) that the harm of attributing weight to perspectives from race and sex is not outweighed by the use of race and sex in hiring. Becuase if it is OK for some justices to prefer having a diversity of perspectives as inputs in rendering decisions, and using race and sex as proxies for those perspectives, it is surely OK for justices to prefer having only one single perspective -- their own -- in rendering decisions. All that leads to the logical but unacceptable conclusion is that a justice is entitled to deliberately hire virtual clones of himself, i.e. a white male in most cases. Of course, the final argument is that ideological "diversty" is somehow a more compelling interest than ideological "purity", but I've yet to see a compelling case for that.

I think David Cohen is exactly right. I try to address the "ranking mania" in the brief discussion related to Posner's Public Intellectuals in this article.

Perhaps we should be trying harder to make the SC Clerk-process a true meritocracy. But perhaps a better course would be to question the inegalitarian foundations of our Winner Take All Society. . . which increasingly distances "winners" from "losers" in self-reinforcing ways.

Anon,

Keep in mind that Justice Souter himself says that he tries to get a diverse group: he usually tries to get a gender balance, but it just didn't work out this year.

Surely Dan is correct about this. Just look at Brian Leiter’s data of Supreme Court Clerkship Placements. Were the three clerks who graduated at or near the top of their class from the University of Kansas more "objectively qualified" than a woman who graduated 10th in her class from Harvard? What about the three BYU clerks - were they more qualified than someone who was an Articles Editor rather than an EIC at Yale? Maybe, maybe not (I’m all in favor of increasing the range of schools clerks come from) but let’s not pretend that there is some straightforward way of objectively defining merit in this selection process.