A few days ago, a lawyer friend sent me a daily law journal article about the paucity of female Supreme Court clerks this year– 19% of the 2006 clerks are women, down from 37-41% over the five previous terms. Scalia, Thomas, Alito and Souter hired only male clerks this term.
It’s truly unfortunate that not only are there almost no women on the actual court, but the clerks (the people who actually write opinions and screen new cases) are also mostly male.
In a brief telephone interview, Justice O’Connor said she was “surprised” by the development, but declined to speculate on the cause. Justice Ruth Bader Ginsburg expressed no such surprise. In a conversation the other day, she knew the numbers off the top of her head, and […] she also observed with obvious regret that “I have been all alone in my corner on the bench” since Justice O’Connor’s retirement in January.
Justice Ginsburg, who will have two women among her four clerks, declined during the conversation to comment further on the clerkship numbers. Why not ask a justice who has not hired any women for the coming term, she suggested.
Souter explains that this is “no more than a random variation,” which is a really annoying excuse for his lack of female hires. I suppose the fact that there’s only one female justice on the bench is also just a “random variation”?
The dearth of female clerks is certainly not for lack of women at prestigious law schools– in fact, schools are where women in law have made the most progress. American Bar Association data shows about half of recent law grads were female, and the percentage of women in tenured positions at law schools increased from 5.9%5 to 25.1% between 1994 and 2002. Women are making professional progress, too, but the numbers aren’t as dramatic when you start talking about positions of power after graduation.
It’s also worth noting, as the Legal Times article did, that there are very few minority clerks, too:
Eight years after attention was first called to the dearth of minorities among high court clerks, it appears that only three of the 37 clerks serving at the Court this term are nonwhite. […] It appears that the current number of minorities is substantially lower than in recent years. The three minorities this term compare with five last term, eight the previous term and a record nine in 2002. …if the proof is in the pudding, the pudding, this term at least, is vanilla.
See the Volokh Conspiracy for more.