A perennial topic at the Supreme Court's budget hearings -- at least since Jose Serrano, D-N.Y., chair of the House subcommittee that has jurisdiction over the Court's budget, has been on the panel -- is the need to increase the number of minority law clerks serving the justices. Since the dearth of minority clerks was first quantified in 1998, several members of Congress have asked the justices about it, but none more persistently than Serrano.
"What progress is being made?" Serrano asked Justices Stephen Breyer and Clarence Thomas at the hearing last week. "The more diversity, the better." It was notable that his inquiry this time came during the same week that the Court heard arguments in Ricci v. DeStefano, which examines an effort by another government entity, the New Haven, Conn., fire department, to hire more minorities.
This time the justices came prepared for the law clerk question. Though the Court emphatically does not keep statistics on the demographics of its law clerks, Thomas said that, judging by the photos in the employee directory, there are "four or so" minorities (and 13 women) among the 36 law clerks hired this term. Last year, he said, the number of minorities was six or seven. Since 1998, the number of minority clerks has been as high as nine and as low as zero.
Thomas said that even though he casts "a broad net" beyond the usual law schools in his search for clerks, "there's not a plethora" of minority candidates to hire. While expressing discomfort at using racial categories, he said that finding qualified Asians, including Indians, for clerkships is "not a problem. We're talking about blacks and Hispanics" as the groups that are most difficult to tap.
But Breyer, who usually hires at least one or two minorities as clerks each year, chimed in that he has no problem finding top minority candidates anymore. When he started on the Court in 1994, Breyer says he had to use "conscious outreach" to find quality candidates, but now "I don’t have to make an outreach to get the good candidates."
Both justices assured Serrano that the Court is aware of his concerns and has responded. "The change is there," Breyer said.
Thomas added, "This is not an area where the Court is resistant to change. ... Your questions have not fallen on deaf ears."