Where are all the female law clerks?

The number of female clerks to Supreme Court justices has dropped into the single digits for the first time since 1994.

I’m sure that this is just a random mutation. And I’m sure that it’s equally as random a mutation that Justice Scalia has had a grand total of two female law clerks over the past seven years — out of 28 total clerks. I would never suggest that it has anything to do with a conservative worldview, or a generally sexist outlook. Obviously, he simply has very, very few female clerks to choose from, with the male applicants outnumbering them 14 to 1.

Or perhaps it’s because the smart women are “opting out” of clerkships. I’m sure that’s it. They’re having babies instead, while their husbands are clerking. And that’s “choice,” ladies, so don’t go getting your panties in a knot over it. We’re all pro-choice here, right? Despite the fact that women are now equal men in law school, women probably only make up about 7% of the people applying for Supreme Court clerkships, which would explain Scalia’s numbers perfectly. Women are simply choosing not to apply.

Or maybe it’s because men are just overwhelmingly better candidates than women. They’re more rational, more intelligent, better writers, have better grades… I have no doubt that the justices are only picking the best possible candidates, and aren’t at all influenced by sexist social stereotypes which privilege the male voice over the female one, and which automatically (and usually unconsciously) confer greater authority to words written under a male name than those same words written under a female name. There’s no way that the traditional boys’ network influenced this one, either — I mean, it’s not as if how much you like a person, or how much you feel you have in common with a person, impacts your hiring decisions, right? And it’s not as if how much you like someone is at all influenced by your social outings, or your potential social outings, with them, many of which — like, say, golf — are highly gendered, right? I mean, no one has ever demonstrated that having more people from underrepresented groups — women, people of color — in positions of power leads to more people from those underrepresented groups finding success in those very fields, have they? Certainly there is no correlation between the dearth of female justices on the court and the staggeringly low number of female law clerks, right?

Right? …Right?

About Jill

Jill began blogging for Feministe in 2005. She has since written as a weekly columnist for the Guardian newspaper and in April 2014 she was appointed as senior political writer for Cosmopolitan magazine.
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23 Responses to Where are all the female law clerks?

  1. Great post. Your take on the issue is spot on.

    It’s nice to see that the NY Times has finally picked this up. I’d posted about this in July, along with a number of other blawgers.

    Here’s a link to my old post, which includes a round up of blawg discussion on this issue and commentary on some of the ridiculous assertions that were made by commenters at one of the more prominent blawgs: http://sidebar.blogspot.com/2006/07/hullabaloo-over-lack-of-female-supreme.html

  2. Sailorman says:

    It is extraordinarily likely that this is the result of sexism, and that seems a reasonable default assumption.

    (For Scalia personally, it’s possible that a women just don’t want to work with him because he’s an asshole, and that they aim for the other 8 instead. not that Thomas is much better….)

    That women and men enter law school at similar rates doesn’t matter though. Instead, one would want to know the male/female composition of the top 300 law students, namely the top 20 at each of the top 15 schools. That group provides the vast majority of USSC clerks. I have absolutely no basis to believe these top students are largely male, which is why I agree this is almost certainly sexism. At my own school, there were more women than men in the top 10 and also the top 10%. But if those top students WERE mostly male on average, it would explain the discrepancy.

    I wonder if this is as much of a problem at the appellate level? Almost all the high level women (and men) I know in law seem to have done an appellate clerkship; anecdotally it seems more balanced but perhaps I have a biased sample.

  3. randomliberal/Robert says:

    I don’t know about you, but if i was a woman, i wouldn’t want to clerk for Scalia, either…so there might be that selection bias there…

    But yeah, yeargh. That’s about all the substantive commentary i have to add here.

  4. Mark says:

    Holy Rusted Metal Batman, my sarcasm sense is tingling!

  5. Josh says:

    How many women are EIC or MA of the law review at the top 15 schools? I think that would probably be the best way to determine if this was simply a result of a skew in the applicant pool or sexism at the SC justice level. That is not to say, of course, that a lack of women EIC’s at the top law reviews is not itself due to sexism.

  6. zuzu says:

    (For Scalia personally, it’s possible that a women just don’t want to work with him because he’s an asshole, and that they aim for the other 8 instead. not that Thomas is much better….)

    Hell, yes, I’d clerk for Scalia or Thomas if offered the chance. It’s the fucking Supreme Court!

  7. Sailorman says:

    zuzu: Yes, of course, who wouldn’t want to be a USSC clerk? Best postgrad job on the planet.

    But I’ve read that it’s considered “bad form” to target all 9 justices with applications (though I’m speaking only from a memory of an article.) So if you or I had to pick only 4-5 for applications, I doubt Scalia would be on the list ;)

  8. Alecto says:

    Right, Sailorman — and it’s probably common knowledge that Scalia doesn’t take on a lot of female clerks, so if you’re female and sending in apps, you’d want to go with the judges who are more likely to hire you. So I bet there’s still a bit of selection bias.

  9. Justin says:

    The more interesting issue (to me anyway) is why so many less women apply for USSC clerkships in the first place (and, is the male to female ratio of hires the same as applicants?).

  10. Sailorman says:

    Justin,

    It’s a multistep process.

    It starts in law school: Many people believe the selection of people for law review boards is biased. However, LR editorship (or the like) is a very important criteria for later clerkships. So a woman who is denied board membership based on her sex has a strike against her.

    It continues through appellate clerkships. Appellate judges are less exposed and have less public pressure to hire equitably. But they “feed” the USSC in many cases.

    So women are preselected. By the time you reach the USSC, few women are applying (less than 1/3 of the applicants). And of those women, fewer of them wil have had the prestigious positions which enhance their chances of obtaining a clerkship.

    This doesn’t in any way imply that the process is not biased. It’s merely that some of the bias occurs long before the USSC judges make their decisons.

    So it is probable that Souter’s “top four candidates” were in fact men; it is also probable that Souter’s criteria are neutral on their face. And it is simultaneously probable that his choice was affected by sexism at the lower levels.

  11. Kelley says:

    Funny you should mention golf outings. Our firm golf outing is tomorrow. Of ten female attorneys in the firm, only one is playing. Of the remaining, six are working the outing: collecting names for the various contests, driving the “beer cart”, etc. Three others have work-related commitments. It really annoys me that the one opportunity to interact with our major clients on a personal basis is limited to a golf outing.

    While I know that many women do play golf, it’s far more likely that men will be playing than women, particularly in this context. So-called “firm outings” should be more inclusive.

    Another point of interest: All of the clients attending are male. Not a single female client will be attending.

  12. The article doesn’t emphasize this, but the problem is existent beyond this year’s major drop in female clerks. On good years women are only making up 37% of the USSC clerk population, which looks like a substantial under-representation to me. Dropping down to 18% is dramatic and a sign of an urgent problem, but let’s not sugar coat what the situation was before.

    Also, pay close attention to how peeved Ruth Bader Ginsburg is not only about the situation with clerks, but with its (possible) connection to the lack of female justices.

    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 in fact had noted them in a speech this month in Montreal to the annual meeting of the American Sociological Association, during which 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.

    With only one of nine justices being a woman, this years crop of clerks is actually out performing the Court itself.

  13. occhiblu says:

    Why not ask a justice who has not hired any women for the coming term, she suggested.

    I really, really love this response. Stop asking the people who are doing things equitably to justify or explain, and start holding the people who are being unfair accountable for their actions!

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  15. ian_s says:

    How do you “prove” bias like this? It’s an old question with lots of legal opinion put toward some answer but it nags at me because of a firsthand experience.

    I mean, no one has ever demonstrated that having more people from underrepresented groups — women, people of color — in positions of power leads to more people from those underrepresented groups finding success in those very fields, have they?

    Indeed it does. The new H/R director at an ad agency I worked for in SF in the late 90’s came on board and within the first month she’d fired two of my staffers, both gay men and made a such a bizarre and glaringly-obvious-to-everyone habit of not speaking to, looking at or acknowledging my presence in meetings of as little as three people (her and myself included) that I printed out her four paragraph email about the proper way to order pizza for the agency lunch and used it as my resignation. One less homo she had to look at. All three of us were replaced with women. During the two months I worked with this director she hired one man (married, family…not gay) and sixteen women (this was the big SF boom so hiring was by volume…and I think it’s worth mentioning there were less than 100 employees at the company). Of course the problem, like this one with the law clerks, was that no one could prove the obvious, which was that the director had a gender preference in employees and likely a prejudice against gays.

    I’m just saying that in our rhetoric and frustration over discrimination we shouldn’t gloss over the fact that people aren’t without bias just because they are or have been subject to the same. Keeping fresh the discussion on the effect of being in a position of power and handling it responsibly is so important as we move toward equitability for women and any other groups that are marginalized.

  16. Bamber says:

    As one of my commenters pointed out, “[i]t is ironic that an article on women clerks being unrepresented cites the male written blog while citing the originating post written by women in a catch-all (“some blogs” etc) nature.” This question was first posed on the Feminist Law Professors blog and first answered at my blog.

    Sailorman and Josh are right; the underrepresentation of women starts much earlier than the Supreme Court. The ever-narrowing pool of potentials has very few women: students at top schools, members of law review at those schools, the boards of those law reviews, board members who graduate at the top of their class, top grads who apply for circuit clerkships . . . once we get down to women clerking for the dozen or so (male) feeder circuit judges, there’s only a handful.

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  18. Justin says:

    man and Josh are right; the underrepresentation of women starts much earlier than the Supreme Court. The ever-narrowing pool of potentials has very few women: students at top schools, members of law review at those schools, the boards of those law reviews, board members who graduate at the top of their class, top grads who apply for circuit clerkships . . . once we get down to women clerking for the dozen or so (male) feeder circuit judges, there’s only a handful.

    I’m not sure if that’s entirely correct. Based on my (OK, limited) experience, women do well in law school and make law review in representative numbers. What they tended not to do, at least at my law school, is go for the feeder judges that would get them the USSC clerkship. When we were picking a board for our law review the men who wanted the position lobbied heavily and the women who wanted it barely even mentioned it – – we ended up picking a man. I’m not sure what the solution is here.

  19. Justin says:

    I meant picking an editor in chief for our law review, not the board.

  20. Bamber says:

    Based on my (OK, limited) experience, women do well in law school and make law review in representative numbers.

    Well, Justin, are we talking about the law schools that most SCOTUS clerks come from? Because at Harvard and Yale, that’s not so.

  21. zuzu says:

    Many law reviews have a blind system for writing on; many also take a percentage of the top students. It’s when you get to decisions like who’s going to be on the board or who’s going to be EIC — decisions that are made based on knowing the people involved rather than just from looking at anonymous submissions with a number rather than a name — that bias creeps in. And snowballs from there.

  22. Justin says:

    Bamber–I don’t know about Harvard, but at Yale, for the past few years, I’m pretty sure a little under half of the board on the YLJ have been women. But, Yale is an outlier both with the way it grades and with journal selection.

    I guess I could go and count, but I’m not sure how relevant it is. To me, the number I’d like to know is what percentage of women that apply for, first, feeder courts, and second, SCOTUS clerkships, get selected versus the percentage of men that apply. That would at least identify where the issue is.

  23. Bamber says:

    I only looked at one year’s masthead for YLJ, and that one seemed a little slanted, but that year might have been an outlier itself. I can only speak with personal knowledge about HLS, which has both a ongoing problem with getting women onto the law review and with the composition of the magna cum laude graduates: I think the ratio is generally 15:1 or something equally awful.

    If Yale is like Harvard, they could probably collect the clerkship application data with reasonable accuracy, since they process a lot of that for us (recs, transcripts, etc.). I don’t think that they want to.

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