A Different Diversity: Judge Thomas Brennan on Reforming the Supreme Court Law Clerk Selection Process The law clerks of the United States Supreme Court have been called "the most powerful young lawyers in America." They screen cases, draft opinions, and reportedly have a significant influence on the course of American jurisprudence. But who are these clerks, and where do they come from? A recent survey by USA Today found that in the last ten years, nearly half of US Supreme Court law clerks have come from Harvard and Yale alone. The overwhelming majority have been young white males. Judge Thomas Brennan, former Chief Justice of the Michigan Supreme Court and Dean Emeritus and President of Thomas Cooley Law School in Lansing, Michigan, has come up with a plan to broaden the law clerk selection process by encouraging the Supreme Court Justices to consider candidates from a greater range of law schools. On September 25, 1998, he spoke by telephone with JURIST's Kristin Abramson (1L, University of Pittsburgh School of Law). This interview is also available in RealAudio. ———————————————————————————————— KA: A recent study by USA Today found that of the 428 clerks hired by the current Justices during their individual tenures less than two percent have been African-American, a quarter were women, four percent were Asian American, one percent Hispanic and none have been Native American. Why does this happen, especially today when there is a greater sensitivity to gender and ethic issues? Judge Brennan: Well, I guess it happens because they don’t pay any attention to it. And that’s not really bad as far as I’m concerned. I think that they ought to be color blind and gender blind in making their decisions. What bothers me is that they hire only from certain law schools. About fifty percent of their clerks come from Harvard and Yale. And therefore, the diversity ethnic and gender diversity of their clerks sort of reflects the mix in those institutions. And my argument has always been that if they were more forthcoming or outgoing in terms of the law schools that they recruited from then the diversity would just follow automatically. KA: Could we just maybe talk a little about the clerk selection process? How are the clerks selected? Judge Brennan: Well years ago I wrote to Chief Justice Burger about this whole thing. And he informed me, at that time...each individual Justice employ[ed] their own clerk. But what most of them did was they used their former clerks as a recruiting committee, as it were, or search committee. And basically [they] took the recommendations of their former clerks as to who they should hire. Well, that just naturally results in a kind of good old boy network in the sense that the clerks will almost always recommend somebody from the law school they came from, or who had the same background that they do, or it is somebody that they know socially, etc., etc. So I think that’s really what has been going on and one of the reasons why there doesn’t seem to be much diversity in those jobs. KA: So they tend to rely on their other clerks. Is that still happening today? Judge Brennan: I think it is to a great extent. They do also rely on certain law professors that they have dealt with in the past who have been, you know have sent them people. And also certain judges of the United States circuit courts of appeals who frequently recommend for appointment to the United States Supreme Court clerkship people who have served clerkships in the courts of appeals...In an effort to try to call the court’s attention to this and do something about it; I have written to Chief Justice Rehnquist and asked him to consider recruiting from other law schools. He wrote back and he said that he thought the pool was larger at Harvard. Although he said that it’s in my experience that the very top people at most law schools are sort of interchangeable. At many law schools he said are interchangeable. And I wrote back to him and I said I’m glad to see you say that but why do you say at many law schools and not all law schools? Do you think that the summa cum laude at any law school in American would be smart enough to be a clerk in the United States Supreme Court. And, of course, that’s what concerns me. And beyond that are the fact that there are some judges who say, oh you’re from Valparaiso, you’re from John Marshall, you’re from Thomas Cooley, I don’t even want to talk to you. I don’t even want to interview you. So that there’s not only a failure to recruit at certain law schools; there is a positive bias against the graduates of certain law schools who don’t even get the opportunity to be interviewed. And that, you know, that really troubles me. So and this is what I’ve argued. Well, then growing out of that was the idea of publishing a national law school dean’s list which would be a book that would include one nominee from each of the 175 accredited law schools in America... [It] would be, first of all, an honor to be included in the book, if your law school nominated you or your dean did. But it would also give the United States Supreme Court and the courts of appeals a resource whereby they would have people to interview without having to go to Harvard and saying, you know, send me some candidates. So they would have at least a resource that they could use if they wanted to. Obviously, I can’t make them use it if they don’t want to, but I do think it would be a useful thing. KA: So have you spoken with other deans at different law schools? Judge Brennan: Yes, I’ve written to every dean in America and a number of them have replied and spoken positively about it. Some have said they wouldn’t participate. KA: That’s interesting. Judge Brennan: Well, obviously the snob schools that think that they have got the inside track, they don’t want to share it with anybody else. So you have that problem. But I think, the biggest response that I’ve gotten from various law school deans is well, if it goes we’ll participate; if it’s not successful they won’t. That’s sort of their attitude. KA: Maybe we should talk a little bit about the clerk’s responsibilities. I know that there’s been... an outcry lately about how much power that the clerks have. Judge Brennan: Well, that’s true and somebody wrote a book... recently describing the impact of the clerks. Of course he was doing it from the perspective of a liberal who wasn’t happy with the conservative clerks who are now serving in the United States Supreme Court and the attitudes that they have. On the other hand within my lifetime it has always been the other way around it though most of the clerks were liberals and the people or the conservative bent were not happy the impact they were having on the courts’ decisions. But you know in any case they do, the clerks do have an impact on the courts’ decisions. They have a particular impact on what cases the court hears. They write these reports and memoranda concerning applications for writs of certiorari and frequently have a great deal of influence on whether or not the court will even take a case. KA: In addition, after they complete their clerkships they often have the most prestigious jobs waiting for them as well. Judge Brennan: That’s also true. They are able to parlay those clerkships into good jobs and there are people in law firms that specifically hire former U.S. Supreme Court clerks because they think, number one these guys know the inside track, they know how the system works and they think they can help them predict how the outcome of things and know what kinds of arguments need to be made to influence the outcome of things. KA: In general these law clerks are very young. More than likely they’re probably 25 years old. Certainly under 30. Judge Brennan: I would think they would be, yes. KA: Under 30 from a top law school. If [the Justices] are taking the top students from the top law schools, as they say, then is there not a a wide representation of people in those schools? And in what way do they consider one law school better than another law school? Judge Brennan: Well, that’s one of my questions. How do they know? Rehnquist says that he feels that in a prestige law schools there are more candidates. But my question to him is how do you know you’re talking to somebody from prestige law school. What makes them prestigious? And who decides that? Is there a list of, it boils down to U.S. News and World Report. Are they the experts? Do they know more about what law schools are good and which ones are not? And is that really where the United States Supreme Court gets it list of prestigious law schools? If it is, I think it’s kind of tragic. KA: Historically there weren’t as many law schools, but now there are a great many very good law schools and they need to take that into consideration. I don’t know that the Justices themselves actually go out and look for clerks. I’m assuming that they get the applications in and then from all the applications they get they sort of screen them out based on what they’re told from a clerk, or a judge, or a law professor. Judge Brennan: I’m sure they hand all those applications over to their former clerks and say here prepare this group of 100, 200 names down to 5 or 10 and come and tell me what your recommendations are. In the first place, a great many of these people never get interviewed, never get a chance to impress anybody, their application is being looked at by some recent Harvard graduate that thinks that Harvard is the only place where they educate lawyers. KA: Well, it would seem to me that if law school deans were to nominate students for a clerkship that that would be in a way almost an ultimate screening process. Judge Brennan: I would think so. I would think that would be a good screening process.. The deans ought to know who’s good at their particular school and I think that if you assume, and I think it’s fair to assume, that every law school has at least a few good people. That’s a good way to spread it around. Then you get geographical diversity. I mean Howard University is going to send you a black man, that’s obvious. And so will Texas Southern, the one in Louisiana that’s a majority black school. At Thomas Cooley Law School up here about 30% of our students are minorities. I think you are going to naturally have a number of minorities being nominated if you spread it around.... KA: And even more in terms of ethnicity it’s just basically life experience. If you are responsible for screening out cases that come before the Supreme Court, I don’t think somebody would be intentionally biased but there’s the possibility that you’re just not going to be sensitive to certain things that somebody else would be. Judge Brennan: Of course. KA: In fact, I guess, if you look at you can almost say the court itself, the Justices themselves as a group are more diverse than their clerks are. Judge Brennan: Well, that’s right. I think it’s interesting Warren Burger was a graduate of the William Mitchell College of Law up in St. Paul, which is an independent law school similar to Cooley and not affiliated with the university and not high on the prestige list of U.S. News and World Report and anybody else. But that’s the school he went to. As far as I know he never hired any clerks from his old alma mater... I’ve always had this sense that he’s spent most of his life trying to live it down.... [But] he got a good education there. That’s how he got to be Chief Justice of the Supreme Court of the United States. I mean, how much more do you have to prove that you’re capable than to achieve that in your lifetime? KA: My impression of law schools, and I’m saying this as a law student, is that one school may be more difficult to get into but once you’re in I would think it’s the same work especially in the first year. Judge Brennan: Your education is up to you and the bottom line is you read the same law books if you go to Valparaiso as you do if you go to Yale. You know, they’re all the same, study the same subjects and read the same cases. I mean, it’s ludicrous to think that somehow or other you’re going to learn more just because you’re in the company of a bunch of people who have bigger LSAT scores. I’ve never believed that the LSAT score was the measure of either professional competence, certainly not of integrity, certainly not of professionalism, or work ethic, or any of the other things that I think would be important, if I were a Supreme Court Justice hiring a clerk. KA: General life experience I think would be key almost. I’m wondering if in a way it might be more valuable to have a Supreme Court clerk who may be a little bit older, who may have had another career who may have just a background. Judge Brennan: Sure. Know something about life and not wet behind the ears. KA: And in terms of ideology do the [Justices], as far as you know, tend to prefer their clerks to be more or less along with their views of the world? Judge Brennan: That’s an interesting question. Some judges want more diverse thinking, they want somebody that will challenge them, that will argue with them. Others say they prefer somebody who has at least a feel for the kind of attitudes that they have and agrees with them. I think, my personal reaction is that probably most Justices tend to have people who agree with them. The other thing is there’s I think such a relationship between these young clerks and the Justices, that they idolize the Justice they work for typically. That typically they will be substantially impacted by the Justice’s attitudes or what they think their boss’s attitudes are on social issues and things like that. So that if they do go in their basically more liberal than the Justice, they may come out echoing a lot of his conservative sentiments or conversely they become more liberal because the Justice they work for is more liberal. So I do think that they do tend to be kind of a mirror image of their Justice’s attitudes.... KA: And earlier you had mentioned an exam? Judge Brennan: Yes. At one time, when I wrote to Burger years ago that was my suggestion. That the Supreme Court devise or get the law school deans or somebody to devise an examination that would be available to all law school seniors and give them an opportunity to compete for Supreme Court clerkships on that basis. That idea never flew. And Burger sort of wrote back to me and said this is the way I do it and I’m not going to do it any different and that sort of thing. But now this time around in my correspondence with Rehnquist, I’ve focused on the idea of getting nominations from the deans rather than conducting an examination. KA: I guess it would be difficult to determine what you would test? Judge Brennan: Well, yeah, unless you want to use the bar examination as sort of the benchmark. But then the argument is well, they haven’t taken the bar examination when they’re applying for these clerkships so it’s too early to rely on that. I think the idea of the dean’s nominations is probably the best way to go....I think it will go and maybe the first year we’ll have 75 to 100 schools, maybe the second year we’ll have 120 and in due course of time I’m sure we’ll get all the schools to participate because clearly there are going to be students at every school who would like to be in the book. KA: Well I appreciate your time. Judge Brennan: My pleasure. ———————————————————————————————— Return to JURIST's Guide to Law Clerks and Clerking at the United States Supreme Court ———————————————————————————————— JURIST: The Law Professors' Network™ is directed by Professor Bernard J. Hibbitts, Associate Dean for Communications & Information Technology, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu. © Bernard J. Hibbitts, 1998. All rights reserved. These pages may not be copied, reposted, or republished, in whole or in part, electronically or in print, without express written permission. NOTICE JURIST regrets that it cannot provide legal advice. For assistance with specific legal problems, please consult a licensed attorney in your jurisdiction. ————————————————————————————————