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Why Is There So Little Diversity Among SCOTUS Clerks?

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By Casey C. Sullivan, Esq. on September 16, 2015 3:13 PM

A clerkship in the Supreme Court isn't a bad way to jump-start your legal career. SCOTUS clerks decide what cases the Court will hear and how they'll be decided. They often go on to become master litigators before the Court or to sit on the bench themselves. Many clerks get starting offers of more than $300,000 a year once they move into private practice.

Who are these lucky clerks? Statistically speaking, white guys from Harvard or Yale. When it comes to Supreme Court Clerks, they're not a diverse lot. A new report shows that feeder judges -- the few federal judges who regularly send their most talented clerks up to the Supreme Court -- might be to blame.

The Supreme Court's Diversity Problem

You know you're in an insular club when a Stanford Law grad is considered a disadvantaged minority. Yet, that's how it is among Supreme Court clerks. In 2014, out of the 39 law clerks (each Justice gets four; retired Justices take one) 13 were Yale grads, while 10 came from Harvard. Alums of those two law schools made up almost 60 percent of all the clerks. Stanford, the third best law school in the nation, was represented by only two grads.

When you look at actual ethnic and gender diversity, the case is even worse. Less than a third of the clerks hired since 1998 are women, despite women making up more than half of law school grads. Tony Mauro, a journalist with The National Law Journal, reported last year that the number of minority clerks had hardly improved since he first surveyed the clerks in 1998, when less than two percent of the clerks were Hispanic or African American.

Is the Clerk Pipeline to Blame?

The Court's feeder judges could be a major part of the problem. Many Supreme Court clerks head to the highest court in the land after clerking for federal appellate judges. Indeed, all of them since 2005 have had prior appellate clerkships. Those feeder judges exert a huge impact on the makeup of the High Court's clerks -- more than 70 percent of all clerks have come from the chambers of just 11 judges over the past five years.

Like the clerks themselves, feeder judges are not a diverse group. And as Slate's Dahlia Lithwick points out, they're getting even less diverse. A new study by Alexandra Hess looks at the narrowing of the feeder judge pipeline over the past 40-some years. Hess finds that from 1970 to 1994, female judges had "roughly demographically proportionate representation" among feeders. Starting in 1994, however, fewer and fewer clerks came from female judges. Female judges have made up around 10 percent of the feeder judges since 1994, and none of the most influential 11 appellate judges are women.

Does the lack of women feeders explain the lack of diversity among clerks? Perhaps. Among the Supreme Court Justices themselves, the women tend to select more female clerks. Their clerks are almost evenly split between men and women. Among the male Justices, however, only one in four clerks is female. If that pattern extends to appellate judges, it could help explain the lack of women clerks moving through the pipeline. (Hess doesn't analyze the gender or ethnicity of the clerks being passed along by feeder judges.)

Her conclusion? That "even thought the federal appellate bench is becoming more diverse, the pool of power players is getting increasingly narrow and continuing to replicate traditional hierarchies of privilege."

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