Monday, July 10, 2006

So few women Supreme Court clerks
Tom Smith

Why are so few women Supreme Court clerks, or rather, why are so few Supreme Court clerks women?  Is it because fewer women are smart enough to be highest court clerks?  Eugene asks this question over at the Volokh Conspiracy, to the annoyance of Professor Althouse.

The assumption behind the question is, in my limited experience, if not false, at least unproven.  That is, that the smartest law students go on to be Supreme Court clerks.  That is rather like saying the smartest politicians go on to be Senators, or the smartest baseball players go on to the Hall of Fame.  In my limited experience, it don't look that way.  In terms of sheer academic horsepower, that combination of high intelligence, creativity, and applied elbow grease that leads to glory, the smartest kid in my law school class was Ahkil Amar, and I think he has since made good this claim.  He didn't clerk for the Supremes; I don't really know why.  Maybe he seemed to independently minded.  I doubt it was because he did not apply.  In fact, he told me I should apply at some impossibly early date, sometime before I graduated 12th grade.  I elected not to apply, given that in my third year of law school my thinking was more along the lines of, is Alaska far enough away from NYC/DC, or do I need to go to Mongolia?  Another extremely high horsepower academic was former Stanford Law dean Kathleen Sullivan, who didn't clerk for the Supremes either.  Don't know why.  And really, who cares. 

I would call the selection process for Supreme Court clerks a little, ah, imperfect.  At a minimum, an IQ test, it ain't.  I finally decided to apply for a Sup Ct clerkship a year late; it turned out Justice White had an opening.  I think he had eaten a clerk and so had a place to fill.  I went in to interview, and it went something like this.  JW:  "I see a lot of philosophy on your resume.  You don't really like philosophy, do you?"  At this point, the intelligent thing to have said would have been, "oh no, I hate philosophy; what I really like is [football?  rodeo? fly fishing? cow punching? in any event, some manly activity]"  But the little demon that has accompanied me through my sometimes mildly disappointing but all things considered fabulous life whispered in my ear words to the effect of "tell the old coot to go f@#$ himself," and so I said something like, "yes I like philosophy, as you can see from my resume."  I grant, this was an intelligence test of sorts, and one that I failed, and I have often regretted not repudiating my main intellectual passion at that stage of my life, the whole business of being true to yourself being rather overrated.  But, if it was an IQ test, it was hardly an objective, scientific sort of test.  It was just a test to see if I might really be a philistine and so qualified.  In fact, I was not, and I would have been a medicre clerk, though I have heard those are hardly uncommon on the Court.  So perhaps the question should be, how many of the smart Supreme Court clerks are men, and how many women?  For all we know, the dumber clerks are all men. 

Let's be honest here, or at least somewhat honest.  Law ain't rocket science, string theory, materials science, fluid dynamics, quantum chromodynamics, set theory, real number theory, options pricing, or even making a living playing the sports books in Vegas.  It requires intelligence, to be sure, but it requires even more a sheer appetite for the job, and all the hard work that goes with it.  The kind that ruins your eyes and your lower back.  Some people take to this in their youth more than others, but it ain't quite the same thing as IQ.  This is my long winded way of saying, who is and who isn't a Supreme Court clerk isn't even a candidate for an instrument to measure intelligence, any more than being on the Supreme Court is. (That last point is what we lawyers call res ipsa loquiter.)   Here's a thought experiment for you.  Four people enter a room, and Justice O'Connor interviews them; she has to pick the smartest one.  Stop laughing and pay attention.  I should add that my view of that Justice's modest intellectual talents have nothing to do with her being from Arizona.  Or being a Republican. 

My humble view is that women overall probably make better lawyers than men, except in certain areas, such as litigation, where the desire to kill and eat prey is paramount.  I think there are more women than men in law school now, and this trend may continue.  It's a rare class of mine where the top students are not women, though I certainly have plenty of good men students too.  If somebody were to tell me in 50 years, law would be dominated by women, I would find that plausible.  Somewhat alarming, but plausible.  Someday, we will have more women on the Court than men, and more female clerks too.  So be nice to them, is my advice.

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Tom Smith


So why, in your view, are there so few female law professors? And a related question: Do the smartest law students go on to be law professors?

Posted by: Simon Lester | Jul 11, 2006 8:31:55 AM

What a great post! I love the twists and turns of your paragraph on your interview with Justice White: just as you make us like that little demon behind you, you tell us how overrated being true to oneself is. And the phrase "my sometimes mildly disappointing but all things considered fabulous life" lands just perfectly. Thank you for so soberly and sensibly deflating so much of what we have blown up to absurd proportions.

Posted by: Anon. | Jul 11, 2006 9:23:04 AM

Actually, it looks like being true to yourself worked out pretty well in this case. You end up a law professor in San Diego, and you got to refuse to suck up to an antiphilosopher.

Posted by: skeptical | Jul 12, 2006 7:24:30 AM

Good post. It always struck me that law's not much more than reasoning to a conclusion from a premise -- a mental operation that doesn't require as much intelligence as discovering true premises, and which almost everyone can do within a certain purview.

Posted by: Mark Greenberg | Jul 12, 2006 7:52:35 AM

Perhaps affirmative action has something to do with it - court clerk caliber candidates who are female may have more/better offers elsewhere so as increase the chances of their taking other employment.

Posted by: krm | Jul 12, 2006 9:37:46 AM

Nice post. Along with Amar and Sullivan and surely many other lights of the law, it is worth mentioning Ronald Dworkin, who turned down an offer to clerk from Justice Frankfurter.

Posted by: J | Jul 15, 2006 2:17:45 PM