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The intense competition for Supreme Court clerkships has been compared more than once to a market that responds to economic forces. If the analogy works, then it has been a very bullish year for clerkship futures. Think of it: A former high court clerk, John Roberts Jr., has succeeded another former clerk, William Rehnquist, as chief justice. Two excellent books have just been published on the history and power of clerks, also adding luster to the job. The resignation May 10 of Judge J. Michael Luttig from the U.S. Court of Appeals for the 4th Circuit abruptly shut off a major pipeline of high court clerks, intensifying competition among other judges. Luttig has sent 43 of his 45 law clerks to the Supreme Court in the past 15 years. Cap that with reports of law firm hiring bonuses of $200,000 for former clerks, and the job’s luster seems brighter than ever. But as high court clerkships drift ever upward into the stratosphere of earthly rewards to which young lawyers can aspire, one stark reality persists: Recipients of this prize are overwhelmingly white, and mostly male. Eight years after attention was first called to the dearth of minorities among high court clerks, it appears that only three of the 37 clerks serving at the Court this term are nonwhite. No Hispanics or Native Americans seem to be among the ranks of law clerks, and not a single African-American male. Viewed another way, it appears that all of the clerks are white in the chambers of seven of the nine justices. Only Justices Clarence Thomas and Stephen Breyer have hired minorities this term. Thomas’ chambers are the most diverse, with Chantel Febus, an African-American woman, and James Ho, an Asian-American male (and former Senate Judiciary Committee counsel), as clerks. The only other minority clerk appears to be Danielle Gray, an African-American woman working for Breyer. Slightly fewer women are clerking this term, as well: 13 of the 37, compared with 15 of 35 last term. In the chambers of Justices Antonin Scalia and Anthony Kennedy, all four clerks are white males. One caveat: As in the past, the Court itself does not provide any statistics about clerk demographics, so the tally is made through personal observation and other kinds of research � including the always-helpful Underneath Their Robes blog, which reports many fun facts about the clerks but little about their racial or ethnic backgrounds. But from a range of sources, it appears that the current number of minorities is substantially lower than in recent years. The three minorities this term compare with five last term, eight the previous term, and a record nine in 2002. What now seems to be a high-water mark in 2002 came four years after news of the historically low numbers sparked protests at the Court and angry inquiries from Congress. At hearings on the Court’s budget, justices would be grilled about the clerk situation, but in the past two years � when scrutiny of the Court budget was shifted to a different House subcommittee � no one has asked about the number of minority clerks. That is fairly understandable, however, because justices and others have given repeated assurances that the entire clerkship supply chain � top law schools and feeder judges, among others � has been sensitized to the issue. But if the proof is in the pudding, the pudding, this term at least, is vanilla. Anecdotally, it appears the usual vagaries of young lawyers’ plans factored into the low numbers this term. Larry Thompson Jr., an African-American and son of the former deputy attorney general, was scheduled to clerk for Thomas this term, but Thompson postponed his service, as he had the year before. Currently, Thompson, a former Luttig clerk, is working as an associate at Weil, Gotshal & Manges in Houston and appears to be off the clerkship track for the long term. He declined to comment. This is also the first term in which clerks affected by the new federal clerkship hiring plan have reached the Court. Under the plan, adopted in 2002, appellate judges agreed they would no longer hire clerks after their first year of law school but would wait until the start of their third year. Some judges speculated that by giving law students another year to blossom, more minority candidates could emerge. If so, it did not result in more minority clerks at the Court. Todd Peppers, author of the new book Courtiers of the Marble Palace, which takes a historical look at high court clerks, says none of the possible explanations for low numbers of minorities is satisfying. When, a few years ago, members of Congress asked why justices could not cast their nets more widely to find more minority candidates, Peppers recalls, the justices often fell back on the “questionable” excuse that they could not afford to take chances that even one of their clerks might not be a top performer. That excuse is flawed, says Peppers, not only because of its unsavory assumption that minority candidates are risky, but also because of history. Back when justices had fewer than four clerks each, he says, some took chances in their hiring, “and it did not cripple the ship.” Alabamian Justice Hugo Black favored clerks from Southern law schools, and he once announced to a startled candidate that he liked to hire young students he could help. The candidate was a stutterer, and that appealed to Black. Other justices, such as Lewis Powell Jr. and Felix Frankfurter, also sought out a diversity of views among clerks, Peppers says, resulting in, at least in Frankfurter’s chambers, screaming matches. Peppers speculates that as the job of law clerk has become more intense and formalized, justices may place a higher premium on technical efficiency and less importance on diversity. Also, the cert pool, in which clerks share the chore of summarizing incoming petitions for eight of the nine justices, has made each individual clerk that much more important. And that may leave justices thinking that they would harm the work of the entire Court � not just their own chambers � if they hired clerks outside the mold. As a result, they tap the usual sources � top students at Harvard, Yale, and a handful of other schools � and end up with very few minorities. No matter what the reason, Peppers says, the dearth of minorities “opens a real issue of social justice.” Given the value of a clerkship in the marketplace, he notes, it is regrettable that “a certain segment of society is just not getting this golden ticket.” The other new clerk book, Sorcerers’ Apprentices by Artemus Ward and David Weiden, also concludes on this subject, “The relatively unchanged face of the century-old Supreme Court law clerk does not bode well for an institution that has been criticized for wielding too much power.”
WESTWARD RIDER Because of an accident of timing, the recent news that Sally Rider was leaving the Court after five years as the administrative assistant to the chief justice triggered speculation that she was miffed about not being named to head the Administrative Office of the U.S. Courts. Her departure announcement on May 9 came three weeks after the appointment by her boss, Chief Justice John Roberts Jr., of James Duff (Rider’s predecessor in the assistant’s job) to the powerful position of administrator of the judicial branch. Rider was at Roberts’ side when he made the announcement. But Rider insists she was never interested in that job and that, in fact, Roberts wanted her to remain at the Court. “He is a good arm-twister,” Rider says. But the lure of her new job offer � as director of a new center at the University of Arizona College of Law named after Rehnquist � was too strong. “This opportunity was such a good fit, I couldn’t pass it up,” says Rider, an Arizona native who received her undergraduate and law degrees from the university. In her key position at the Court, akin to a chief of staff, she had a good reputation for efficiently solving problems and will be missed by most in the building. Rider first caught Rehnquist’s eye in her role as an assistant U.S. attorney in Washington handling prosecutions of protesters who violated the law against demonstrations on the marble steps and the plaza of the Supreme Court. She signed on for two years and stayed for five, in a job that grew with each passing year. She coordinated the Court’s supervision of the current major modernization and renovation project of the building, before turning over the reins to Marshal Pamela Talkin last summer. During Rehnquist’s illness, Rider took on an even greater role in overseeing the Court and had the melancholy duty of staying in contact with the chief as his health declined. Rider accompanied Rehnquist when he arrived dramatically in January 2005 to swear in George W. Bush for his second term as president. When Roberts succeeded Rehnquist, Rider’s job was transformed again as she familiarized the new chief justice with his myriad duties and with the work force at the Court. Rider also assisted the chief justice with duties that may seem ceremonial but have become increasingly time-consuming. Among them: the chief’s traditional role as chancellor of the Smithsonian Institution and chair of its Board of Regents. Just last month the Smithsonian said the board would review a controversial contract between the Smithsonian and Showtime to develop exclusive programming for the cable channel. Historians and documentary makers, joined by members of Congress, have expressed concern that the deal could restrict public access to Smithsonian collections. Smithsonian Secretary Lawrence Small has said the arrangement would only affect those seeking access for commercial purposes. Rider declined to comment on the controversy and on other aspects of her job. Rider is also the only non-judge member of a committee Rehnquist created two years ago to study the effectiveness of existing laws on judicial misconduct and disability. The late chief justice established the committee, chaired by Justice Stephen Breyer, after House Judiciary Committee Chairman James Sensenbrenner (R-Wis.) expressed concern that discipline procedures for judges lacked accountability. The committee is expected to issue a report before Rider leaves in late September. The process for replacing her is entirely up to Roberts, who is the only one to decide whom gets hired for Rider’s position. The salary for the job is capped at that of a district court judge, which is currently $165,200 a year.
CLEMENT WEATHER Paul Clement has been solicitor general of the United States for less than a year, so he was suspicious when he heard that Georgetown University Law Center’s Supreme Court Institute wanted to honor him at its annual reception last month. It sounded valedictory, Clement said. “I thought you knew something I didn’t know,” he told the crowd with a smile. But judging by the accolades, Clement has substantial job security. Predecessor Theodore Olson said that Clement has already met a “24-karat-gold” standard for advocacy. In the way of Washington, Clement was even praised by someone who was his adversary less than a month earlier: Georgetown professor Neal Katyal, who argued against Clement in the Guant�namo Bay detainee case of Hamdan v. Rumsfeld. But the warmest words came from Scalia, for whom Clement clerked in 1993 and 1994. Scalia said that Clement, who had shown his talents as deputy solicitor general before being promoted, was “the sentimental favorite” among justices for the post. “I am so glad he is solicitor general, because he makes my job easier.” But Scalia mystified the audience somewhat by revealing one complaint he had about Clement: the black vest he wears to the Court with the customary swallow-tail morning coat as solicitor general. Scalia insisted the vest should be a pearl gray, and he thought Clement had broken with tradition. “As you know, all change is presumptively wrong,” Scalia said, only half-joking. But the justice said he had the Court curator look up the history of the outfit, and, sure enough, Clement was right; black is the proper and traditional color for the SG’s vest. Scalia’s complaint surprised several in the audience, including retired Deputy Solicitor General Lawrence Wallace, who has long served as the institutional memory of the office. “We have worn black vests ever since I can remember,” says Wallace, who retired in 2003 after arguing 157 cases before the high court � more than any other lawyer alive. Wallace says he always felt that wearing the morning coat and vest was “an unnecessary tradition” that unfairly differentiates government lawyers from other advocates. He still hopes the tradition will “fall by the wayside” when the first female solicitor general is named someday � though men’s morning suits can be and have been altered to fit women. But until the tradition dies, Wallace says black vests are, and always have been, de riguer. “I don’t know where Justice Scalia got the idea they should be pearl gray,” says Wallace, but he offered a theory. “With nine children, he has probably seen a lot of gray vests at weddings.”
WALLACE AND THE SECRETARY Speaking of the former deputy solicitor general, Wallace made the news recently, even in retirement. An accomplished violist, Wallace is one of four lawyers and amateur string players who regularly but informally join Secretary of State and pianist Condoleezza Rice to play chamber music. The New York Times recently reported on the group, which often assembles at Rice’s Watergate apartment on Sunday afternoons, sometimes after Rice has run the gantlet of Sunday talk shows. “One thing about music is that it requires total concentration,” says Wallace. “It refreshes your mind and forces the pressures of office to the back burner for a little while.” Wallace has moonlighted on the viola for years and plays frequently in local concerts, but he is clearly delighted to be part of Rice’s group, which has performed for VIPs at her apartment and at the British Embassy. “I’ve gotten more notoriety for my music than for my legal work,” Wallace exclaims.
Tony Mauro can be contacted at [email protected].

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