Record complex on court's hires Practices: Numbers alone don't tell the story of who's to blame for the U.S. Supreme Court's record of few minority employees, a California attorney says.

November 29, 1998|By Brian W. Jones

AS THE U.S. Supreme Court opened its term last month, the nation was witness to a demonstration by liberal policy-makers and civil rights activists on the steps of the court in support of "diversity" among the justices' law clerks. The activists were protesting that among the 394 law clerks employed by the current justices since 1972, only 1.7 percent of them have been black and 1.2 percent have been Hispanic.

None of the 34 clerks serving the justices is black. One African-American lawmaker suggested that the dearth of black and other minority law clerks is evidence that "the standard-bearer of justice is discriminating against our people."

(In addition, the NAACP plans a five-day campaign of letters, faxes, phone calls and e-mail to pressure the court into hiring more minority members. The protest, scheduled to begin tomorrow, aims "to dismantle the present unfair system of hiring Supreme Court law clerks," said Kweisi Mfume, president of the National Association for the Advancement of Colored People.)

However, the numbers alone do not tell the full story of the court's hiring practices. Justice Antonin Scalia, one of the court's more conservative justices, was recently pressed by a CBS News producer to explain why none of the 52 clerks he has hired in his 13 terms on the court has been a racial minority.

The producer - approaching Scalia on camera as he left Sunday church services - implied in her questioning that the justice's hiring practices were discriminatory.

Scalia asked the reporter a crucial question that she and most of the justice's critics have not bothered to think about. He asked her whether she knew how many minority candidates had applied to work in his chambers. She confessed that she did not.

As Scalia's question to the reporter suggests, the diversity activists would do well to examine the pool of recent law graduates from which the justices select their clerks. Many of those same activists might then examine the role their own heated rhetoric about the court and some of its members in recent years has played in circumscribing that pool.

For, despite their paean to diversity on the steps of the court, the nation's liberal civil rights leaders find themselves hoist on their own rhetorical petard - demanding in word what they have undermined in fact as the court has become more conservative.

Those leaders who assembled in the name of diversity are not happy with this court. The Supreme Court is no longer populated by judicial activists in the mold of Earl Warren, William Brennan and Thurgood Marshall. Seven of the justices were appointed by Republican presidents. In recent years, the court has placed reasonable limits on court-supervised desegregation plans; limited state and federal governments' ability to make distinctions among citizens on the basis of race; and more strictly construed an array of statutes and constitutional provisions, including those dealing with race and discrimination.

Those decisions are generally supported by at least a solid block of five "conservative" justices, including the court's only black justice, Clarence Thomas.

In response to this court's relatively restrained record, liberal civil-rights activists have unleashed a torrent of race-tinged vitriol that has been anything but restrained. For example, Jesse Jackson, the eminence grise of the black left, has gone so far as to compare the black-robed justices to white-robed Ku Klux Klan members.

Thomas, for his principled concurrence in many of the court's more conservative opinions, has been vilified by mainstream black leaders and media as an Uncle Tom, a race traitor, a self-hater, a "handkerchief head" and a mindless, opportunistic lackey of venal white conservatives.

The price that liberal black leaders have sought from Thomas for his apostasy has been his racial ostracism. They have sought to deny him the opportunity to speak to black audiences, presumably because one with his views must be unworthy of a forum among black people. In effect, liberal black leaders have ,, demanded that Thomas choose between his racial identity and his principles.

Given the black left's concerted effort (often joined by other ethnic lobbies) to poison the well of conservatism for their ostensible constituents, should it then surprise us to learn that black law students might not beat a path to the chambers of the court's more conservative justices?

In an unfortunate irony, those leaders might have achieved precisely what they set out to achieve: They have drawn a line in the sand of racial identity beyond which a dissenter can never return. A black law student who seeks the employ of conservative judges on the Supreme Court or its "farm team," the courts of appeals (which are dominated by Republican-appointed judges), risks his or her standing as a loyal member of the race.

Lost identity, then, seems a steep price to pay for mere career advancement.

To be sure, the reasons for the dearth of minority law clerks at the high court are likely complex. Glib explanations will not suffice. What we do know, however, is that if blame is warranted, it probably does not lie at the feet of the justices.

Instead, court critics might examine the pool of potential minority clerks. Then the critics might ponder their role in at least partly limiting that pool.

Until mainstream black leaders and their allies embrace the diversity of opinion within ethnic communities - respecting the right of members in good standing to dissent - far too many talented young people will find their ambitions limited by a confining racial identity. What sort of diversity is that?

San Francisco attorney Brian W. Jones is a director of the Cente for New Black Leadership and a former Republican counsel to the U.S. Senate Judiciary Committee.

Pub Date: 11/29/98

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