A High Court Milestone Stirs Hope Of Gender Parity

By Erin Coe and Jacqueline Bell | October 17, 2018, 9:01 PM EDT

Brett Kavanaugh is sworn in as an associate justice of the U.S. Supreme Court by retired Justice Anthony Kennedy on Oct. 8 at the White House. (Getty)

At the U.S. Supreme Court, the law clerks hired each term to assist the justices in their work have long been overwhelmingly male. Until now.

In a first for the high court, Justice Brett Kavanaugh hired an all-female group of law clerks for the 2018 term.

Not only is Justice Kavanaugh the first justice in the history of the court to have all female law clerks, but the addition of four female clerks to the Supreme Court this term pushes the balance of the entire law clerk class to more than 50 percent female, in another first for the high court.

It’s a promising development for efforts to bring gender parity to the pipeline of rising appellate lawyers who seek to one day argue before the justices, or even take their own place among the ranks of the judiciary. But whether the change represents a true tipping point remains to be seen.

The clerkship numbers reflect “significant but partial progress,” said Deborah Rhode, director of Stanford Law School’s Center on the Legal Profession and one of two female clerks for Supreme Court Justice Thurgood Marshall for the 1978 term. During that time, some justices wouldn’t take any female clerks, let alone more than one, she said.

The rise in female clerks reflects the realities of the hiring pool, where half of law school graduates are women, but women still face hurdles to secure top roles as general counsel, equity partners and law school deans.

“Despite their equal representation in entry-level positions, women are still dramatically underrepresented in leadership positions,” Rhode said. “So there is progress yet to be made.”

Closing the Gender Gap

Women have long struggled to land clerkships at the Supreme Court and other federal courts. Without much fluctuation, women have made up a little over a third of clerks on average at the high court over the last decade, according to a review of Supreme Court clerk data between the 2008 and 2017 terms.

A clerkship on the Supreme Court is “one of the most coveted achievements and credentials in American law,” Justice Kavanaugh said at his swearing-in ceremony on Oct. 8. It can set a young attorney up for a range of enviable legal posts, and many former clerks go on to become standout members of the Supreme Court bar and familiar faces before the justices at oral argument. Others become judges or justices themselves.

“A clerkship is often a first step to being an advocate or being a judge,” said Jennifer Mika, an adjunct professor at American University Washington College of Law.

The gender gap among high court advocates traces at least some of its roots to the clerkship ranks, court watchers say. A top-tier clerkship can grant an aspiring lawyer unfettered access to the upper echelons of the legal world, including a busy and potentially lucrative Supreme Court practice down the road. And if the gender gap is significant among law clerks, that gap is only solidified as careers advance.

While Justice Ruth Bader Ginsburg has hired a slightly greater proportion of female clerks than male clerks over those last 10 completed terms, and Justice Stephen Breyer has long hired two female and two male clerks each term, almost all of the other justices have surrounded themselves with predominately male clerks.

About 28 percent of Justice Samuel Alito’s clerks and about 33 percent of Chief Justice John Roberts’ clerks have been female over the same time period. Justice Neil Gorsuch, who is starting his third term, has hired a low level of female clerks over his past two completed terms — about 13 percent. The proportion of female clerks for Justice Anthony Kennedy, who retired in July after 30 years on the bench, isn’t much higher, at 15 percent for the last 10 terms.

Kavanaugh claims he has been a major proponent of female clerks since he joined the D.C. Circuit in 2006. In Sept. 27 testimony, he told senators he would continue to be an important advocate for female lawyers as a Supreme Court justice. At the same hearing, he denied Dr. Christine Blasey Ford’s allegations that he sexually assaulted her decades ago. He also denied sexual misconduct claims brought by other women.

Of the 48 clerks he hired at the D.C. Circuit, 25 were women, and he sent 21 of those women on to clerk at the Supreme Court, according to a July letter his former female law clerks sent to lawmakers in support of his confirmation.

“In my time on the bench, no federal judge — not a single one in the country — has sent more women law clerks to clerk on the Supreme Court than I have,” then-Judge Kavanaugh testified during the September hearing.

The gender equity milestone for the 2018 term’s clerkship class, however, comes in the wake of a bitter, polarizing battle to confirm Kavanaugh that may also have a lingering effect on the Supreme Court and clerkship selection process.

As Kavanaugh pushed back against the misconduct allegations during his confirmation process, a controversy sprang up at Yale Law School in late September over female students reportedly being told that Judge Kavanaugh preferred his female clerks to look “like models.”

The Guardian reported in September that two Yale law professors had advised female students seeking clerkships with then-D.C. Circuit Judge Kavanaugh that he liked a certain look, spurring student protests and a letter from Yale faculty members urging lawmakers to conduct a thorough review of the embattled Supreme Court nominee before he ascended to the bench.

Yale Law School Dean Heather Gerken responded to The Guardian’s report in a statement saying the allegations were “of enormous concern to me and to the school,” and while she couldn’t comment on individual complaints or investigations, the law school and the university “thoroughly investigate all complaints regarding violations of university rules and take no options off the table.”

The professors, Amy Chua and Jed Rubenfeld, both disputed the allegations. Rubenfeld was separately the subject of a Yale investigation over his conduct with female law students that was initiated before Kavanaugh’s nomination, according to The Guardian.

“If these claims [regarding the Yale professors] are legitimate, this criterion is deeply troubling,” Rhode said. “This is the kind of subjective decision-making that has limited women’s opportunities in leadership in general, in the law and in the clerkship process.”

A Subjective Process

Law students have a better chance at winning a Supreme Court clerkship by excelling at an elite law school and having prior clerkship experience, preferably at a federal appellate court. But in many ways, the path to clerkship lacks transparency.

“The problem is this process is so shrouded in secrecy,” said Todd Peppers, a visiting law professor of Washington and Lee University School of Law. “The court is a hard nut to crack in general, and when it comes to its clerks, the Supreme Court is particularly close-mouthed.”

What is known is that the selection process has a certain level of subjectivity built into it, and the factors that are considered vary widely among individual jurists.

Part of the challenge is that there are not many judges who regularly steer female clerks to Supreme Court justices, and it’s an issue that needs to be talked about more openly, Mika said.

The representation of women working in federal judicial clerkships has also barely budged, from 45.6 percent in 2006 to 46.6 percent in 2016, according to National Association for Law Placement data that tracks the most recent class of law graduates.

“The legal profession needs to do more to discuss gender disparity throughout the pipeline,” Mika said. “I think these numbers suggest that there are not enough discussions about whether or not this is a problem in the first place, and it is difficult to address a problem if there is little to no recognition that the problem exists.”

Justices also have personal preferences for those who are going to work closely with them in chambers, such as law clerks who come from their alma mater, meet certain GPA requirements, or even those who like playing tennis, as was the case for the late Chief Justice William Rehnquist.

These preferences haven’t always been fair. One of the most famous examples is of a Harvard Law School dean in 1960 recommending then-law student Ruth Bader Ginsburg as a clerk for Supreme Court Justice Felix Frankfurter, who responded that he was not ready to hire a woman.

Because they are inundated with applications, justices heavily depend on “feeder” judges, such as Judge Kavanaugh when he was at the D.C. Circuit, to refer clerks they’ve already worked with, and these judges similarly rely on law professors they trust for recommendations of candidates in the first place. As a result, feeder judges and professors carry substantial prestige in legal circles since they are seen as door-openers for these highly competitive jobs.

The representation of female clerks has clearly improved since Justice Ginsburg was a law student, but some court watchers think the allegations against the Yale professors signal that it may be time for the process to be re-evaluated to ensure vetting and selection practices are appropriate.

“Law schools should consider what they are willing to do to get their students into those clerkships and whether the means justify the ends,” Mika said. “They should also recognize their role in ensuring there is integrity in the process.”

It also may be time for the Supreme Court to reckon with how most of its clerks continue to hail from a small crop of elite law schools and whether that favoritism is ultimately shortchanging litigants, Mika said. More than half of the law clerks hired by the justices either came from Harvard Law School or Yale Law School, according to Law360’s review of clerk data from the 2008 through the 2017 terms.

“Diversity in background can have an impact on how a judge views a case, and when you have more people who reflect the population that they are providing judgment for, I think that is only a furtherance of justice,” Mika said.

Some justices are already better at this than others. Justice Clarence Thomas has hired more clerks from schools besides Harvard and Yale than any other current justice between 2008 and 2017.

If judges and justices expand their search of clerk candidates to include those from a greater mix of law schools, that move could end up benefiting women. In 2015, women accounted for 46 percent of law students at the top 50 schools ranked by U.S. News & World Report, while they made up 53 percent of students at the bottom “unranked” quarter of law schools, according to a 2016 report co-authored by Deborah J. Merritt, a law professor at The Ohio State University Moritz College of Law.

Because women are somewhat more likely than men to be tied to a particular geographic area or to matriculate at a school that will cost less than other alternatives, hiring from a wider array of schools could bring more diversity into these clerkships, the report found.

“If the justices were willing to look at more law schools, I think they would find very smart, talented, well-educated students who turned down offers from more prestigious law schools — and that women would be well-represented in that group,” Merritt said.

A movement to change one aspect of the clerkship hiring process is already underway. A group of federal judges from the D.C., Ninth, Seventh and Second Circuits in February rolled out a pilot program to delay the clerk application process, which traditionally starts after law students’ first year, to begin after their second year. The program affects students who started law school in 2017 and 2018.

The program was a response to concerns raised by more than 100 law school deans that starting the clerkship hiring process too early put undue pressure on students and potentially left students of color, women and those without professional networks who “may arrive not knowing what a clerkship is, let alone how to attain one” at a disadvantage, according to a letter from the deans to the judiciary.

Recognizing that women continue to struggle to land leadership posts in the law and the critical role clerkships play in launching lawyers’ careers, some law schools are taking action.

Stanford Law School, for instance, is creating a support and remedial structure for clerks who experience bias or harassment in chambers. It already tracks gender and diversity information of successful clerkship applicants, and it’s considering more work on how to encourage applications from underrepresented groups.

“Many law schools, including my own, are reviewing their clerkship processes to be sure that we have done all we can to even the playing field,” Rhode said.

Erin Coe is a feature reporter for Law360 who also wrote about the Supreme Court cases to watch this term. Jacqueline Bell is a senior data reporter who contributed additional reporting and data analysis for this series. Additional reporting by Amanda James. Graphics by Jonathan Hayter. Editing by Jocelyn Allison, Rebecca Flanagan and Kelly Duncan.

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