in an interesting article by Linda Greenhouse on this year's relative paucity of women among Supreme Court clerks. The lines I most agree with from the article are, "Unaware of the overall drop in numbers, Justice Souter said he assumed it reflected no more than a random variation among this year's applicants. That was also the assessment offered by Justice Breyer ...." One swallow does not make a summer, and one year's data — especially when the data involves ten people who hire a total of 37 clerks — doesn't make a usefully analyzable phenomenon.
UPDATE: Two commenters' suggestions lead me to add a link to the earlier post, and expressly note that the earlier post was prompted by Amber (Prettier than Napoleon).
Also, there's an error in the graphic accompanying the Times table (though the Times generally deserves praise for providing the raw data): In 2001-02, Thomas hired three women clerks, not two: Margaret Ryan, Neomi Rao, and Sigal Mandelker. I assume the Times people were misled by the fact that the name of one, Sigal Mandelker, is not obviously feminine -- at least to someone unfamiliar with Israeli names -- but she is indeed female. (I know Neomi and the fourth clerk, Matthew Berry, quite well, and know Sigal through them.) Not a big deal by any means, but I thought I'd note this for people who are really interested in the data.
While variation might explain the hiring of most of the justices (excluding Roberts and Alito, from whom there is only one year of data), there doesn't seem to be much of a variation in the hiring pattern of Justice Kennedy or Scalia: they rarely hire women. Also, only Ginsburg hired more than two women in any one year. Rehnquist generally hired one woman per year, but only one woman.
Since there are only 9 justices, the refusal of 2 out of 9 to hire women generally, plus Rehnquists apparent unwillingness to hire more than one per year, coupled with the general pattern of no more than 2 women clerks per justice, is going to have a significant effect on the overall percentage of women hired.
Still very strange about this year: were the women graduating in June 05 (and clerking on the Supreme Court in '06-07) that much worse than the women graduating over the past decade? That is quite a statistical variation. You would have to go back 14 years (per the graph) to see a similar variation.
Yes. Sex in the City just ruined them for law.
On the other hand, there was no suggestion that the decline was due to less natural ability for the law among women, which I suppose you would have agreed with more.
Don’t you think you should acknowledge in this post that the “interesting” question relating to the paucity of female clerks on the SC was originally posed by Amber in Prettier than Napoleon? I think Amber had priority in raising the original question, which, to your credit, you acknowledged in your original post. If Amber was in fact the first to raise the issue, that would be a bit of a coup for her (a relatively unknown blogger).
"In recent years, more than a third of Justice Souter’s law clerks have been women; since women rarely make up as much as a third of the applicant pool, he said, they have been somewhat overrepresented among his hires."
Based on this, I find the conclusion that Kennedy and Scalia "refuse" to hire many women to be somewhat overreaching. Even if it could be characterized as a 'refusal,' the fact that women have been somewhat overrepresented among other justices results in an overall composition that reflects the applicant pool. Whether the applicant pool itself disproportionately excludes qualified females is another question.
Also, as a side note, the author speculates that Scalia's predominantly male hiring pattern may reflect him being unable to find a suitable number of conservative female clerks. However, I thought I remembered hearing in law school that Scalia likes to hire liberal clerks that he can argue with so he can better refine his arguments. Is this a law school myth? I also wonder that perhaps not too many women feel like working for Scalia; therefore, maybe not too many women apply for clerkship with him.
Now, I won't defend this specific calculation too far: There may be random factors that affect cohorts, which would make this incorrect. (And, for the real stat-heads, this is a one-sided test.) But it is at least not obvious that this change is small enough to be easily consistent with random year-to-year variation.
As for personnel changes, O'Connor almost always hired at least 2 women each year; she deliberately sought a gender balance among her clerks. She was replaced by Alito, who hasn't made that a priority in his hiring so far, and didn't, as far as I'm aware, make that a priority in his hiring on the 3d Circuit. Perhaps that will change (I doubt it.)
Similarly, the old Chief typically hired 1 female clerk per year, but he only hired 3 clerks each year. The current Chief also seems to be hiring about 1 female clerk a year, but he's hiring 4 clerks over all. That lowers the percentage of women in the cohort.
The other factor seems to be an unusual drop in the number of women in Thomas's chambers. That's probably temporary in light of Thomas's hiring history.
By the way, Greenhouse's article notes that Thomas has hired lots of women over the years. And the graphic accompanying the article makes clear that he's hired more women than Souter. So it's unfair to say that Greenhouse puts all the blame on conservative justices.
(Eugene is also correct that the graph misstates the number of women Thomas hired in 2001-2002.)
In any event, who cares about this besides Linda Greenhouse? What possible public import is it whom the Justices pick as their personal assistants?
I should have said that only Ginsburg regularly hired more than 50% women in any one year, but come to think of it, that would have been overstating it, since she only did it twice in 7 years. (Even given the mistake in the graph re Thomas, no other justice did it more than once in 7 years).
That's obviously going to keep the mean down, because if 2 justices rarely hire any women, other justices generally hire 1 or 2 women, and hardly anyone ever hires more than 50% women, given only 9 justices, you're going to get a mean of substantially less than 50%, regardless of the applicant pool
That point was not made clear in the Greenhouse article.
I was with you until your last two sentences. If there's no significant sex discrimination -- and there may well not be -- it's not an issue. But, as I assume you know from being a clerk, this job isn't what is generally meant by (to use your term) "personal assistant." This is arguably THE PLUM job in the entire legal profession. Folks that have held that position have a significant leg up over those who haven't in almost all elite practice and legal academic jobs. A number of firms give significant signing bonuses to former S.Ct. clerks.
IF it were true that women, as a group, were being significantly disadvantaged in getting such jobs because those doing the hiring preferred not to work with women (and again, I understand that we don't know if that's true), then I think women in the legal profession would have a legitimate interest and gripe.
Even if women make up 1/3 of the applicant pool, that doesn't tell you that they are overrepresented, since that would assume that on average, the men and women applying are evenly distributed in abilities. Do we know that? Or are we just assuming?
For example, it may be that many men who are in the top 10%, but not in the top 5% of their law school class frequently apply for SCOTUS clerkships, but women who are in the top 10% but not in the top 5% tend not to apply. If that were the case, if this were a strict meritocracy, you would expect to see a greater percentage of the women hired out of the applicant pool relative to the men.
In any event, I still find it interesting that Scalia and Kennedy have hired very few women between them over the past 7 years. I wonder why? Do they hire last and all the best women from the applicant pool are taken? Do women not want to work for them and tend to accept competing offers from other justices? Do they not like working with women? 7% and 11% women hired (respectively) over 7 years seems too low to be a statistical variation from the percentage hired by other justices.
We have no evidence one way or the other about the respective qualifications of the women and the men. Why assume they are not evenly distributed?
So are qualified applicants evenly distributed between men and women? If you define "qualified" according to qualifications upon graduation from law school, as jgshapiro implicitly does, I think the answer is yes. But if you define "qualified" as people who have an appellate clerkship under their belt and the ability to keep moving every year or two, then I would not be surprised at all to find that fewer women are "qualified" for the Supreme Court competition.
Of course it matters a whole lot, because a Supreme Court clerkship determines career opportunities for the rest of one's life. But if law-school-qualified women don't get to the SC clerkship because of lack of mobility, affirmative action for women applicants is not the answer. All that does is put single women who are less qualified ahead of married women who are more qualified for future career prospects. Maybe it suggests the legal profession needs to have a broader view of how to identify the best and brightest. Why shouldn't a position at one of the most competitive law firms or government positions be considered as good an indicator of competence as a clerkship? And why can't firms call out their high achievers with public awards, not just private bonuses? Maybe Scalia is unfair to women applicants because they are less likely to play tennis with him. But I think the real problem is the myopic attitude of the profession as a whole, not the hiring practices of a couple of Justices.
He assumed no such thing. Rather, he was correctly pointing out that we shouldn't automatically assume that they are.
1. The Justices' male preferences (in the early 1990s) could not be explained by either females' underrepresentation in top-tier law schools or their underrepresentation on top-tier law review boards--that is, while women made up 1/3 of top-tier boards, they still only garnered 1/4 of the clerkships; and
2. Females tended to hold significantly fewer appointments as clerks on the U.S. Courts of Appeals than would be expected (given law school performance), which might explain the Supreme Court's lower numbers.
The question I had then--and wonder about today--is whether the Courts of Appeals have a male bias. Or perhaps (as many have suggested), females do not pursue clerkships at the same rate as males (because of family or whatever else).