NAACP President Arrested at Supreme Court Protest Against Lack of Minority Law Clerks
Ronald K.L. CollinsSpecial to JURIST
Minority Law Clerk Issue Heats Up As the Court reconvened for the first day of its new Term, the minority law clerk issue took center stage, not in the Court's hallowed chambers but on the sidewalk facing the Court. Speaking from a podium at the foot of the Court's steps, Nancy Choy, executive director of the National Asian Pacific American Bar Association, said that her organization and other groups came to the Court to "protest the lack of diversity among the Supreme Court law clerks and to challenge the Justices to adopt more open hiring procedures." That theme was echoed by representatives of various African American, Native American, and Hispanic groups present at the rally. Said Mfume: "[We have come here] to protest the hypocrisy of the highest court in the land. . . . Since they cannot find any law clerks we will present them with resumes and petitions, [even though] they will arrest us . . . ." Beverly McQueary Smith, president of the National Bar Association, told JURIST that law school deans and professors must begin to "help to identify qualified Black and minority students and put together a resume pool" to alert judges that there are "many qualified minority people out there." Roger Wilkins, professor of History and American Culture at George Mason University, also told JURIST that while the Court may call for racial justice, it is "most hypocritical when it fails to live up to that call in its own chambers." Wilkins, too, called on law schools and judges to "reconsider" the selection process. Rodney Pulliam, national chairman of the Black Law Students Association, likewise urged law deans and judges to work with minority bar associations in identifying potential Supreme Court law clerks. "I think it would be wise," he told JURIST, "for the Chief Justice to meet with the heads of the minority bar associations across this country, at least to begin a process" to change the status quo. Today's actions by Mfume, the NAACP and other groups, come in response to a study published last March by USA Today. That study, conducted by the paper's Supreme Court reporter, Tony Mauro, revealed that fewer than 2% of the 394 clerks hired by all nine justices during their respective tenures were black, 4.5% Asian, and none were Native Americans. The study also revealed that Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia, and David Souter have never hired an African American Law clerk. Of the 34 law clerks hired for the next Court Term, USA Today has more recently reported that only one is a minority - an Hispanic woman hired by Justice Steven Breyer. Groups Respond to Rehnquist Letter Last May the National Bar Association, the Hispanic National Bar Association, the National Asian Pacific American Bar Association, and the Native American Bar Association requested a meeting with Chief Justice William Rehnquist to discuss their concerns about the lack of minority clerks. The Chief Justice replied in a May 27, 1998 letter to the groups, in which he stated:"I do not think the sort of meeting which you propose . . . would serve any useful purpose." While the Chief Justice added that he would be glad to receive suggestions from minority law associations for future clerks, he also stated: "I have no control, nor would I seek to assert any control, over the hiring practices of my eight colleagues." Speaking at today's rally, Ms. McQueary Smith complained: "We requested a meeting with the Chief Justice and that request was denied. [He] did not even want to talk to us about it." Since Chief Justice Rehnquist's response, the controversy has continued. In a July 13, 1998 address to the NAACP's First Plenary Session, Mfume declared: "This Supreme Court ought to be ashamed of itself. After having existed now for 200 years, denying day in and day out denying opportunity for law clerks of color to have a chance to come in and to shape policy." A few months later, in September, calls for a "demonstration at the Court" were being voiced as labor, trade, religious, and legal advocacy groups rallied to support the NAACP position. Meanwhile, the National Bar Association formed a task force to address the minority law clerks issue. Proposals, such as the one suggested by Judge Thomas Brennan, Dean Emeritus at Thomas Cooley Law School, were likewise being offered to reform the process by which Supreme Court law clerks are selected. By late last week, however, the controversy took a more active turn as the NAACP formally called on citizens and groups to join in a "mass demonstration" in front of the Court to protest its "shameful record in hiring minority law clerks." "Where the Marble Starts, Speech Ends" Since 1949 political activities such as demonstrations and rallies on or near the Court's grounds have been governed by 40 U.S.C. §13. The constitutionality of one section of that law was tested in the United States v. Grace (1983) In that case, the Court per Justice Byron White ruled that a total ban on all leafleting and picketing on sidewalks adjoining the Supreme Court was unconstitutional. The Grace Court did not, however, rule on the constitutionality of the law as its applies to the marble plaza and steps of the Court building - the area where Mr. Mfume was demonstrating. In a separate opinion filed in Grace, Justice Thurgood Marshall declared: "Visitors to this Court do not lose their First Amendment rights at the edge of the sidewalk . . . . It would be ironic indeed if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights." The issue of protesting on the Court steps came up in a January 1997 case in which 17 people were arrested for violating 40 U.S.C. §13(k), law which bars parades, processions, or displays of banners and the like on Supreme Court grounds. There, the demonstrators, while on the steps of the Court, unfurled a banner that read "Stop Executions." The arrests and statute were challenged in D.C. Superior Court. Judge Robert Morin upheld the federal law and fined the demonstrators $50 each. Said Judge Morin: "Where the marble starts, speech ends." Since then, Court police have permitted demonstrations on the public sidewalk only and not on the steps or beyond. The Court has additionally allowed news reporters and film crews to use the steps for reporting and filming purposes. The Supreme Court on Civil Disobedience Using bullhorns, Court police today warned protesters: "This area has been closed under regulation two. If you cross the police line, you will be subject to arrest." At about 10:40 a.m. Mr. Mfume and four others crossed the police line arm-in arm. When the police came to arrest them, they went limp on the plaza, with Mfume on his knees shouting "no justice, no peace." Walker v. City of Birmingham (1967) was the last Supreme Court case involving a major civil rights leader and a First Amendment claim in a civil disobedience case. In that historical controversy, Dr. Martin Luther King was convicted for violating an Alabama state court injunction against demonstrations. Upholding the conviction, the Court per Justice Potter Stewart stated: "No man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion." Added Stewart: "One may sympathize with the petitioners' impatient commitment to their cause. But respect for the judicial process is a small price to pay for the civilizing hand of the law." After learning of the decision, Dr. King replied: "We used to have the Supreme Court as an ally; now even they have turned against us." Ronald K.L. Collins is the co-editor (with David Skover) of JURIST's Books-on-Law book review service. A former law professor, he currently lives and works in Washington, DC.
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