Thursday, July 06, 2006

Why so few female Supreme Court clerks?

Last week the Feminist Law Professors blog posted about the continuing decrease of female Supreme Court clerks. My data for next term show that only seven, or 20%, of the confirmed 2006-07 Elect are women. Why is this so? Some empirical observations and blue-sky theorizing:

  • There are fewer women at top schools. While the majority of law students nationwide are female, the schools most Supreme Court clerks come from are still mostly male.
  • There may be fewer women with top grades. At Harvard, the percentage of women who graduated magna cum laude was lower than the percentage of women in the class. Some might say this jibes with the results of I.Q. tests, which show more men in the tails of the distribution and women clustering toward the center.
  • Women may be less likely to be on law review. Again, at Harvard this was so (and the cause of perennial calls for affirmative action). Perhaps it is not so elsewhere, but a brief perusal of a couple of mastheads indicates that it may hold for other schools as well. Most Supreme Court clerks were law review members. And for schools that have students grade onto law reviews, the previous point may affect this one.
  • Women may be less likely to clerk. My judge reports that the percentage of female applicants for clerkships in his chambers varies between 33 and 20 percent. A well-regarded liberal judge on the same circuit reported nearly identical percentages. Since a circuit court clerkship is essentially required for a Supreme Court clerkship, if fewer women clerk at lower levels, then the pool for Supreme Court clerkships will be smaller. (As a side note, I do find it interesting that comparatively few women clerk. Is this because they want to cash in at the firm for as many pre-baby years as possible? Are women less likely to expect a spouse or lover to follow them to clerkships in remote parts of the United States than men are?)

Are any of these points empirically false? If they are, what do you think explains the gap? If they are substantiated by your experience, can you let me know? While the government collects data on clerkship hiring, for example, the experiences of clerks who are involved in the hiring process might shed more light (for instance, a judge might make offers to many women who take clerkships elsewhere, which would not show up in hiring stats).

UPDATE: A commenter at the Volokh Conspiracy tabulated the Justices' clerk hiring by gender for OT '00 through '06:
  • Justice Breyer: 13 men, 15 women
  • Justice Stevens: 16 men, 12 women
  • Justice Thomas: 16 men, 12 women
  • Justice Ginsburg: 16 men, 12 women
  • Justice O'Connor: 14 men, 10 women
  • Justice Souter: 18 men, 10 women
  • Chief Justice Rehnquist: 13 men, 5 women
  • Justice Kennedy: 25 men, 3 women
  • Justice Scalia: 26 men, 2 women
The Kennedy and Scalia disparities are huge. If Justice Thomas can find conservative women to hire, why can't Scalia?

UPDATE II: Upon perusing this list of all the Supreme Court clerks ever, it looks like the Scalia/Kennedy gap is a function of school-based hiring practices; Thomas, Rehnquist, and O'Connor were more likely to hire clerks from schools outside the top six. The documented paucity of MCL/law review women at such elite institutions may explain the gender gap in the Scalia and Kennedy chambers.
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