Discrimination in the selection of law clerks, Supreme Court edition

Yesterday, I wrote about how some federal appeals court judges grant race-based preferences to members of certain minority groups when they hire law clerks. I should have added that this issue came up during oral argument at the Supreme Court in Students for Fair Admissions v. Harvard.

Justice Kagan raised it. She asked counsel for the Asian-American students discriminated against by Harvard whether “if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions?” (See oral argument transcript at page 28)

Counsel responded that judges can think about this, but can’t “implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to black and Hispanic applicants.” (See transcript at page 29)

Although Kagan addressed her question to counsel, her intended audience might well have been Brett Kavanaugh, a potential swing vote in the Harvard and UNC cases.

It’s well known that Kavanaugh hires few white males to be his clerks. According to the Washington Post, only three of the 20 clerks Kavanaugh has hired while at the Supreme Court (as of the last Court term) are white men. Given the representation of white males in the pool of applicants from which Supreme Court clerks are selected, it’s almost certain that Kavanaugh is taking gender and possibly race into account in a big way.

Kagan is surely aware of this. By asking counsel whether judges can consider race in selecting clerks, Kagan was probably hoping to show Kavanaugh that, under petitioners’ theory of these cases, he is discriminating improperly.

Kavanaugh’s main preference is for female clerks. Women accounted for the vast majority of his Supreme Court clerks through 2022. (They accounted for slightly more than half of his clerkship hires when Kavanaugh was an appellate judge. Blacks accounted for approximately one-tenth of them.)

When his nomination was pending, Kavanaugh went so far as to promise to hire only female clerks for his first term on the Court — a form of discrimination that I don’t think anyone has publicly defends for decades. As I understand it, he committed to hiring the four women before being accused of sexual assault (as a teenager). But his promise helped counter earlier complaints by feminists about his selection that centered around the abortion issue.

Title VII of the Civil Rights Act bans both race and gender discrimination, but its terms don’t apply to federal judges. Under the Constitution, gender-based preferences are subject to a scrutiny less strict than that which applies to race-based preferences. Thus, no compelling interest need be invoked.

However, it’s difficult to imagine any legitimate interest that would support the near exclusion of white males from a judge’s clerkship positions. I doubt that countering accusations of sexism or the desire to be the first Justice to hire an all-female roster of clerks qualifies.

Has Justice Kagan’s question to counsel about race-preferences in law clerk selection given Justice Kavanaugh pause — either about how to vote in the Harvard and UNC cases or how to select his law clerks? Absent leaks, there’s no way for anyone outside the Supreme Court building to know.

I did notice that right after counsel’s colloquy with Kagan about law clerks, Kavanaugh jumped in and changed the subject. This was probably a coincidence.

I also noticed that for the current Supreme Court term, the majority of Kavanaugh’s clerks are men. In fact, it looks like he hired as many male clerks this term as he hired for the previous four terms combined. This may or may not be a coincidence.

It’s not a coincidence that the rich and/or famous are so often on board with race-based preferences in college admissions and other resume-building opportunities. Their offspring don’t face the prospect of losing out to less qualified minority group members. Colleges love to admit the sons and daughters of celebrated parents.

I sometimes wonder how these parents would view race-based preferences if the practice jeopardized the opportunities of their kids. Free from this concern, it may be difficult to grasp the full injustice of being denied selection due to one’s race or gender, and easier to focus instead on being acclaimed as a diversity pioneer — in other words, on virtue signaling.