Renewing a Commitment to Civil Rights — Starting With the Courts

Power concedes nothing without a struggle. Last October in Washington, D.C., when the U.S. Supreme Court began its term, 1,000 people gathered to protest the absence of African Americans and Hispanics serving in the very prestigious post of law clerk to the justices. This year, thanks to continuing efforts by activists and attorneys, along with intense media coverage, five people of color are among the select group of recent law school graduates who play a role in shaping constitutional rights.
Certainly the Supreme Court is doing better, but its improvements show the importance of a vigorous and renewed civil rights movement.  The lack of African American and Hispanic clerks is troubling not only because of the opportunity denied to qualified persons, but because access to the courts is a fundamental right.  And while advocates of gradual reform have always asked civil rights supporters to work within the system, the system of justice includes people of color overrepresented as the subjects of punishment and underrepresented as the decision-makers with power.
The current system is difficult to defend. The old-boy network remains powerful. A handful of law professors who themselves belong to a network of ex-clerks, and "feeder" judges with personal connections to the justices, recommend a handful of candidates. Justices can chose clerks based on their ideologies, hobbies or virtually any criteria.
Of course, this approach has not produced results that are inclusive, unless we regard taking a risk on an alumnus of New York University or Berkeley as outreach.
According to the press reports that revealed the problems, 20 percent of law school graduates are now persons of color and about half are female. Many of them are enrolled in selective schools. Yet less than 2 percent of the clerks ever employed by the sitting justices have been African American (7 out of 428), and only 1 percent Hispanic (5 out of 428). Furthermore, only one quarter of the clerks have been women.
Worse still, the current approach does not reflect open competition. All of the law clerks have amazing resumes. About half of the hires by the current justices have been from Harvard or Yale; the 10 alma maters that produced the most clerks account for virtually all of them.
Yet, many more would-be applicants — whose own law schools politely advise them that they don't stand a chance — are comparable.
The common mistake is to believe that real performance and paper qualifications are identical. It scarcely benefits society to measure merit in a constrained sense. The belief that the "best and the brightest" or the "cream of the crop" can be identified simply and exactly harms all but a few of us.
Modest affirmative action — such as recruiting and reviewing a range of candidates — would likely help everyone. If the justices would interview some possibilities from, say, University of Washington at Seattle or University of Minnesota, or Fordham or Emory universities — all of whose finest graduates could match those from Michigan or Stanford — they would increase the number of African American hopefuls as well as talented individuals of various backgrounds. It is disingenuous to suggest that such efforts amount to racial quotas.
The justices who have insisted that they do not consciously discriminate on the basis of race or gender should be given the benefit of the doubt about their personal choices. There isn't a basis for accusing specific justices of bigotry. It would be needlessly inflammatory to do so.
Nonetheless, they are government officials whose cumulative actions form a pattern that may have the unfortunate consequence of excluding people. Their good faith doesn't resolve "the American dilemma." Achieving racial diversity requires leadership and action. It isn't likely to happen either naturally or accidentally.
Indeed, public comments from the justices support the notion that it isn't merely a matter of preventing explicit prejudice, which properly concerns the Court. Justice Clarence Thomas, testifying before Congress in March, stated of the relatively low numbers of African Americans and Hispanics as clerks, "There is not a person at the Court who would not want to change this."
Even as the Supreme Court changes, it will remain an elite institution. It has nine members and a few dozen law clerks. The broader and deeper reforms and revolutions of our shared society must come about through political action.