WASHINGTON -- After years of turning to the Supreme Court for justice, several prominent women's and civil rights groups are turning on the high court.
In an unusual move, Chief Justice William H. Rehnquist wrote a letter to three black members of Congress, defending himself and his fellow justices against charges they have discriminated against blacks and Hispanics in their hiring of law clerks.
In the letter, Mr. Rehnquist attributed the low number of minorities hired as clerks entirely to their low representation in the talent pool. Clerk candidates must have "very strong academic backgrounds" and previously successful law clerk experience, he said.
Mr. Rehnquist was responding to a request by three House members, Rep. Danny K. Davis, an Illinois Democrat, Rep. Elijah E. Cummings, a Maryland Democrat, and Gregory W. Meeks, a New York Democrat, to talk to minority bar groups about the selection process.
For the second year in a row, the high court has no black clerks. Although minorities constitute 20 percent of law school graduates, less than 2 percent of the 428 clerks hired by justices during their respective tenures were black. Of them, only John Paul Stevens has ever hired more than one black law clerk during his tenure. Justice Clarence Thomas, the court's sole black justice, has had only one black clerk in his seven-year tenure.
When USA Today reported those numbers last summer, the civil rights community erupted in protests, resulting in the arrest of NAACP President Kweisi Mfume and 18 others on the court's front steps at the start of its current session.
Supreme Court clerks play key roles in drafting opinions and in deciding which cases are heard. The court benefits from the infusion of a diversity of views, not only on the bench but also in its clerks.
Yet, Mr. Rehnquist has turned down requests to meet with black congressmen and the National Bar Association, a black lawyers' group.
Rep. Jesse Jackson Jr., an Illinois Democrat, says he is introducing a bill to bring the judicial branch under the federal law that bars workplace discrimination. As good as that idea sounds in principle, it may well be overruled by the very body to whom it applies.
If so, Mr. Rehnquist could cite the hiring record of an old ideological rival, the late Thurgood Marshall, for support. The court's first black justice hired only one African American, his goddaughter, Karen Hastie Williams, among the 28 clerks he hired in his first 10 years on the court, according to Juan Williams, author of a new biography, "Thurgood Marshall: American Revolutionary."
In the 1980s, Marshall raised his hiring rate of African-American clerks to about 15 percent.
A closer look at the high court's hiring patterns shows that ethnic inequality in their clerks may grow quite naturally out of a bias toward a few elite law schools.
"Seventy-five percent of their clerks come from eight law schools," said Thomas Brennan, president of the private Thomas Cooley Law School in Lansing, Mich. "There are many candidates who would like clerkships who will never be interviewed because of the law school they went to."
That's a bias that hurts all potential candidates regardless of race or gender, if they didn't happen to go to one of those eight law schools.
Which brings us back to the talent pool into which the justices dip. "As demographic makeup of this pool changes, it seems entirely likely that the underrepresentation of minorities . . . will also change," Mr. Rehnquist wrote.
On that last point, he probably is right. But until that day comes, the justices should ask themselves a question major employers have had to ask themselves: Are there ways to widen the pool without sacrificing quality?
Mr. Brennan has an idea. He has asked the deans of the nation's 175 accredited law schools to nominate one top student apiece to a national "dean's list" that could be submitted to the justices for their consideration. The justices would not be obliged to hire from the list, but at least they couldn't say they couldn't find qualified applicants.
"I think the minority problem would take care of itself if they would widen the pool," Mr. Brennan said. So do I.
Even so, Mr. Brennan's offer of this suggestion in a letter to Mr. Rehnquist long before the current racial flap emerged was politely turned down. For now, at least, Mr. Rehnquist said the justices like their current system.
That's their right. But, like any other modern-day enterprise, the justices lose when they limit the range of views and backgrounds that they bring to the table.
Clarence Page is a syndicated columnist.
Pub Date: 12/25/98