A survey issued by USA Today found that women totaled only one-fourth of law clerks hired by the U.S. Supreme Court, around 5% of clerks were Asian, less than 2% were African-American, and even less were Hispanic.
Investigators found an ‘old-boys club’ system of hiring law clerks, including hiring only Harvard, Yale or other elite schools’ top graduates, taking references from previous law clerks and from specific appeals court judges. The Supreme Court is immune to its own laws which prohibit discriminatory hiring practices.
Critics of the system worry that the country is misrepresented and that a majority of white male law clerks could produce a prejudice in draft opinions and in deciding which cases are heard. “Clerks are (the justices’) emissaries to the world …. People of different backgrounds bring in some different thinking for the justices. If they are all white males, you just perpetuate the dominance of males in the legal profession,” said former law clerk Stetson University law professor Mark Brown.
Catawba College professor Martha Swann said, “A case that doesn’t look important to a white male clerk from the Northeast may be important to a woman from California …. If you have all white males from Harvard as clerks, they won’t intentionally be biased, but they will be.”