Affirmative action and court clerks

March 19, 1999

The New York Times said in an editorial Wednesday:

A CONGRESSIONAL hearing on the Supreme Court's annual budget last week took a valuable detour as Justices Clarence Thomas and David Souter engaged in a lengthy colloquy with lawmakers about the court's dismal record in recruiting and hiring minority law clerks.

Each of the nine justices personally selects up to four law clerks each term to help with screening appeals and drafting opinions.

The current term's crop of 34 clerks includes only one minority member -- a Hispanic woman -- and for the second year running, the court hired no African-American clerks. Of the 428 clerks hired over the years by the current justices, only seven have been black, according to USA Today. Chief Justice William Rehnquist has not hired even one African-American clerk in 27 years on the court.

"There is not a person at the court who would not want to change this," said Justice Thomas, the second African-American to sit on the court, responding to questioning by Democratic lawmakers. Justice Souter also expressed displeasure with the lopsided numbers and the perception they create. But other comments by the two justices suggested a reluctance to alter the clubby "feeder system" from top-tier law schools and judges that produces a nearly all-white coterie of high-caliber clerks.

The court is hurting itself and the country by perpetuating a selection process that seems to exclude minorities and the disparate views they might bring. If the justices wanted greater diversity, they could achieve it without diminishing the high standards they need to use for hiring. Leon Higginbotham, the distinguished federal appellate jurist who died recently, made it a point to seek out able minority clerks, and had little trouble finding them.

Pub Date: 3/19/99

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