Prof. Eugene Volokh, UCLA Law School *
It's not typical to find protestors demonstrating outside the Supreme Court. But there they were last Monday, at the opening of the term, raising cries of "Discrimination!" Nineteen people, including Kweisi Mfume, head of the NAACP, deliberately got themselves arrested.
The 1,000-plus demonstrators were protesting the Supreme Court's record in hiring black and Hispanic clerks. Of the clerks who have worked for the currently sitting justices, only 1.7% have been black and 1.2% have been Hispanic. "This is not ambiguous," says Rep. Albert R. Wynn (D., Md.). "This is clear [discrimination]. The numbers speak for themselves."
But do they?
Ethnic groups don't distribute themselves evenly throughout the workforce. Asians occupy more than 40% of the freshman class at the University of California at Berkeley. Jews, 2% of the full-time working population, make up 26% of the nation's law professors. Jews also tend to make up about 30% of the Supreme Court clerks, which means non-Jewish whites are underrepresented among th e clerks compared to the population at large. Asians are slightly overrepresented, at 4% of the clerks compared to 3% of the overall population. Yet surely this isn't a result of vast pro-Asian, pro-Jewish or anti-Gentile bigotry. Disproportion does not prove discrimination.
Civil rights law recognizes this. In discrimination cases involving skilled jobs, the racial makeup of those hired must be compared not against the general population, but against the qualified labor pool. As a matter of both law and logic, it's irrelevant to a discrimination claim that the clerks' racial breakdown doesn't match the country's. What matters is the difference between the makeup of the pool of clerks and the pool of top law school graduates -- the group from which the justices select their clerks.
What's the racial mix of this top graduate pool? No one knows. Law schools generally won't reveal this information and certainly the court's critics haven't presented any such data, even though -- again, as a matter of both law and logic -- the burden is on them to do so.
Still, we can estimate. The two best predictors of law school success, for students of all races, are Law School Admissions Test (LSAT) scores and undergraduate grade point averages. They aren't perfect predictors, but they're very good, which is why all the top law schools use them. So we can infer that on average the top law school graduates probably have predictors not far from those of the top law school entrants.
And here we do have some data. In 1997, American Lawyer magazine reported on the racial makeup of law school applicants who would have plausibly been eligible for admission to Boalt Hall, Berkeley's law school. Of the applicants who had LSATs above 164 (the 92.3rd percentile) and GPAs above 3.50 -- thresholds well below the "average" of the students receiving offers from Berkeley -- only 0.6% were black and 1.6% were Hispanic. The Law School Admissions Council's National Statistical Report provides similar numbers.
Boalt Hall is generally ranked around eighth among the nation's law schools. The Supreme Court usually hires clerks who were among the top five or 10 graduates of Harvard, Yale, Stanford and Chicago; who were among the top three or so students at the other top 10 schools; or who were first in their class at the next 10 schools.
On average, these clerkship contenders almost certainly had much higher grades and LSATs than the average Boalt Hall applicant. One can infer then that among this pool of applicants who are most qualified to clerk for the Supreme Court, there'd probably be no more than about 0.6% blacks and 1.6% Hispanics, and perhaps even fewer. So on close examination, the supposed evidence of th e court's discrimination vanishes.
Could it be, though, that the court, while not intentionally discriminating, is using unnecessarily exclusive criteria? No; the criteria the justices consider -- mainly law school grades, but also work experience, publications, letters of recommendation, and the like -- are extremely relevant to the job. They don't perfectly predict future performance, but they're the best predicto rs the justices have, given the need to winnow 34 clerks from tens of thousands of recent graduates.
It's doubtful that the soft factors, letters of recommendation for instance, are biased against blacks or Hispanics; but say the court abandons them. Say further that the court relaxes its standards and starts selecting randomly from the top 10% of the classes in the top 20 law schools (which would be a bad idea, but let's set that aside). Even with those changes, there's no reason to think that a substantially higher percentage of this group would be black or Hispanic.
The sad fact is that the court faces something that candid law school admissions officers call a "pool problem." Largely because of the failings of the K-12 educational system, too few blacks and Hispanics are acquiring the skills needed to compete effectively at the highest levels of higher education generally and of legal education in particular. Some indeed do get these skills, and many eventually become excellent lawyers. But in very competitive hiring processes such as the selection of Supreme Court clerks, the results, while fair, reflect the pool problem with which legal education starts.
One could, of course, argue that the court should prefer applicants of certain races even if they are somewhat less qualified than their competitors of other races, because this would add "diversity" or be more "representative." But should the Supreme Court really start discriminating against more qualified clerkship applicants simply because of the color of their skins? What's more, as a Jew, I'm troubled that a serious attempt at ethnic balancing would require that there be at most one Jewish clerk every year, rather than the current average of about 10. While no one is suggesting such limits now, this is where the logic of seeking a clerkship cadre that "looks like America" would lead.
At least proponents of overtly preferential hiring acknowledge that they call for the court not to stop discriminating but to start discriminating -- albeit in what some think is a good cause. Most of the court's critics don't make this acknowledgement. They accuse the court of bias, but rely on numbers that prove nothing. And they try to respond to a complex problem -- why is K-12 education so badly failing poor, disproportionately black and Hispanic, students? -- by making a simplistic accusation that's as unproductive as it is unfair.