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Justices of the U.S. Supreme Court pose for a formal group photograph in the East Conference Room of the Supreme Court in Washington, D.C., U.S., on Thursday, June 1, 2017.

U.S. Supreme Court justices should step up and state publicly that they want greater diversity among their law clerks, said Howard University School of Law Dean Danielle Holley-Walker.

“The first step,” Holley-Walker, a Harvard Law alum, said, “is always to say, ‘This is something that is important to us. We want to see a change happen and we are committed to taking steps to make a difference in terms of the makeup of our clerks.’ That is not something that I’ve heard expressed by many of the justices.”

Holley-Walker made the statement in response to The National Law Journal’s research, first released in December, on the persistent dearth of minority law clerks at the nation’s highest court.

NLJ research found that since 2005—when the Roberts court began—85 percent of all law clerks have been white. Only 20 of the 487 clerks hired by justices were African-American, and nine were Hispanic. Twice as many men as women gain entry, even though as of last year, more than half of all law students are female.

Former clerks have their pick of top-tier job offers and can command $350,000 law firm hiring bonuses. Four current justices were formerly clerks at the court—a record number, as are the general counsel of Apple Inc. and Facebook Inc. For aspiring appellate litigators and academics, a Supreme Court clerkship opens the creakiest doors.

But this term, of the 36 clerks hired by sitting justices this term, only one is African-American, two are Hispanic and three are Asian-Americans, based on the NLJ research.

Some prominent minority lawyers have commented on why the numbers are so low, and what the court and others involved in clerkship recruiting should do about it.

“It’s an uncomfortable topic for all of us in the bar, in the courts, law professors and the like because we all bear some of that responsibility for what these numbers are,” said Neal Katyal, a partner at Hogan Lovells. “I don’t think this conversation should be about blaming nine justices. Katyal, a Yale Law School graduate, clerked for Justice Stephen Breyer. A former acting solicitor general, Katyal, who is Asian-American, shared his thoughts in a December podcast about law clerk diversity hosted by The National Law Journal.

Crystal Nix-Hines, a partner at Quinn EmanuelUrquhart & Sullivan, Harvard Law School alum and a former clerk for Justice Thurgood Marshall, agreed.

“I think there’s a broader systemic problem. It starts in law school or perhaps even earlier,” said Nix-Hines, who is African-American. “If you’re not at a great law school, and you’re not on the law review, or at the top of your class, or known to a feeder professor or judge, the chances of getting a Supreme Court clerkship are pretty slim.”

The low numbers span the court’s ideological spectrum. Since Chief Justice John Roberts Jr. joined the court in 2005, just 8 percent of the law clerks he’s hired have been racial or ethnic minorities. Only 12 percent of the clerks hired by Justice Ruth Bader Ginsburg and Justice Clarence Thomas since 2005 were minorities. Ginsburg has hired only one African-American clerk since she joined the high court in 1993, and the same goes for Justice Samuel Alito Jr., who became a justice in 2006.

By contrast, more than 30 percent of Justice Sonia Sotomayor’s clerks have been nonwhite, making her chambers the most diverse among those justices who have been on the court for more than a year. (Justice Neil Gorsuch has hired seven clerks so far over two terms, three of whom are nonwhite, for a total of 43 percent.)

Holley-Walker, who is African-American, said justices and feeder judges need to cast their net wider to achieve a diverse class of clerks. “If you only hire from one or two law schools or at the most, five law schools, and those schools only have a certain number of diverse graduates every year, then you’re really cutting down on the number of potentially diverse clerks that you could hire,” said Holley-Walker, who noted that only one student from Howard Law, a historically black institution, has ever served as a Supreme Court clerk. James McCollum Jr., a Howard graduate, clerked for now-retired Justice John Paul Stevens in 1984 and 1985.

Since 2005, Breyer, Ginsburg, Elena Kagan and Anthony Kennedy have hired 10 percent or fewer of their clerks from law schools outside the U.S. News & World Report Top 10. The late Justice Antonin Scalia hired just a single graduate from a school outside the top 10 during that period.

Harvard and Yale law schools have tightened their grip on the clerk “market,” providing half of the court’s law clerks since 2005, compared to 40 percent in 1998.

As one possible resource to diversify clerk ranks, Holley-Walker pointed to Just the Beginning Foundation, formed by African-American federal judges to connect minority and other students with the law and judges.

Holley-Walker said she was surprised to learn from the NLJ stories that liberal Justice Ginsburg has hired only one African-American law clerk since she joined the high court in 1993.

“It was surprising because we know that she has a deep commitment to diversity and inclusion in terms of women and also people of color,” Holley-Walker said. “I don’t doubt her commitment at all.”

In terms of gender diversity, Ginsburg and Breyer have hired men and women in equal numbers. In contrast, other chambers continue to be male-dominated. For instance, Kennedy, has hired six times as many men as women law clerks since 2005. And Gorsuch, in his second term, has hired just one female law clerk.

“The justices, and the legal profession as a whole, should aspire to be as intentional as Justice Stephen Breyer, who has hired more black clerks than any other justice and as many women as men. This doesn’t just happen,” said Yolanda Young, a Georgetown University Law Center alum who heads Lawyers of Color, a nonprofit devoted to promoting diversity in the legal profession. Young is African-American.

For Katyal, knowledge also makes a difference. He said he was among minority law students who arrived at law school not knowing the shortcuts to clerkships—such as becoming a research assistant to a well-connected professor. Students need that information early in their time at law school.

Another factor is financial, Katyal said. Students of all backgrounds with student loan debt may find law firm salaries more attractive than the $79,720 salary of U.S. Supreme Court law clerks.

“As I talk to minority student groups across the country, I get that question a lot which is ‘How can I afford [clerkships]?’” Katyal said. “The last thing we should do is be having people pull their punches just because of money.”

Lisa Helem contributed to this story.

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Tony Mauro

Tony Mauro, based in Washington, covers the U.S. Supreme Court. A lead writer for ALM's Supreme Court Brief, Tony focuses on the court's history and traditions, appellate advocacy and the SCOTUS cases that matter most to business litigators. Contact him at tmauro@alm.com. On Twitter: @Tonymauro

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