US Supreme Court Law Clerks: Part I

Is there declining diversity in the law clerk hires since the appointment of John Roberts and Samuel Alito?

Perhaps there is as Linda Greenhouse writes in a not-so-recent memo regarding the declining numbers of female law clerk hires by USSC justices.

Take a look at the article below:

Everyone knows that with the retirement of Justice Sandra Day O'Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country's new law school graduates than there are today.

Last year at this time, there were 14 female clerks, including one, Ann E. O'Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O'Connell.

Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O'Connell twice, there were 16 women among the 43 law clerks hired by last term's justices.

After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices' individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.

Who are these young lawyers who are the subject of such interest? They do not, contrary to myth -- propagated in part by law clerks themselves -- run the court. They do play a significant role in screening new cases, though, and they help their justices in preparing for argument and in drafting opinions.

While their pay is a modest $63,335 for their year of service, a Supreme Court clerkship is money in the bank: the clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000.

In interviews, two of the justices, David H. Souter and Stephen G. Breyer, suggested that the sharp drop in women among the clerkship ranks reflected a random variation in the applicant pool.

But outside the court, those who care about what goes on inside are thirsting for more than statistical randomness as an explanation.

A post on one popular legal Web site, the Volokh Conspiracy, asked, ''Why so few women Supreme Court clerks?'' and drew 135 comments during a single week in July. The answers included the relative scarcity of female students among the top editors of the leading law schools' law reviews -- an important preclerkship credential -- and the absence of women among the ''feeder judges,'' the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks.

Some speculated that Justice Antonin Scalia, who hired only two women among 28 law clerks during the last seven years and who will have none this year, could not find enough conservative women to meet his test of ideological purity. (Justice Clarence Thomas will also have no female clerks this year, but over the preceding six years hired 11.)

In a brief telephone interview, Justice O'Connor said she was ''surprised'' by the development, but declined to speculate on the cause.

Justice Ruth Bader Ginsburg expressed no such surprise. In a conversation the other day, she knew the numbers off the top of her head, and in fact had noted them in a speech this month in Montreal to the annual meeting of the American Sociological Association, during which she also observed with obvious regret that ''I have been all alone in my corner on the bench'' since Justice O'Connor's retirement in January.

Justice Ginsburg, who will have two women among her four clerks, declined during the conversation to comment further on the clerkship numbers. Why not ask a justice who has not hired any women for the coming term, she suggested.

One who is in that position, Justice Souter, said he was disappointed to find himself without any female clerks. He explained that he had hired the top four applicants, who turned out to be men.

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.

''I've found that a mix is a wonderful thing,'' he said, speaking from his home in New Hampshire.

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, who nonetheless has hired his usual total of two women for his four law clerk positions.

In the last seven years, Justice Breyer has hired more women than any other member of the court; more than half his law clerks, 15 of 28, have been women, a result, he said in an interview from his chambers in Boston, not of any conscious effort but of choosing the best available candidates.

With the number of women in clerkships high by historical standards until now, attention has been focused on a lack of ethnic and racial diversity among the clerks. There are no reliable figures, but the clerkship cadre remains overwhelmingly white.

It was not until the 1940's that any justice hired either a female or black law clerk.

Justice William O. Douglas hired the first female clerk, Lucille Lomen, in 1944, and it was 22 years before Justice Hugo L. Black hired the second, Margaret Corcoran. The first black clerk, William T. Coleman Jr., who is still practicing law here, was hired by Justice Felix Frankfurter in 1948.

Justice Frankfurter was not, however, ready to hire a woman when the dean of Harvard Law School strongly recommended a former star student in 1960. He turned down Ruth Bader Ginsburg.

Going to the Source of the Flood

A recent ruling by a federal appeals court has left Katrina victims essentially homeless nearly two years after a hurricane ravaged the Gulf Coast.

The ruling overturns a decision by a district court judge which said that insurance companies were responsible for covering damages that ensued from the flooding that occurred after the levees gave way in 2005. The insurance policy language, the district court judge ruled, was ambiguous in that it did not distinguish between naturally occuring floods and those resulting from faulty levees or human error.

However, the federal appeals court declared that although ambiguous the policy is very clear about excluding homeowners from protection against any sort of flooding. Obviously there is disagreement among the judges about how to interpret this insurance policy.

But apparently the policy and the text of the policy is quite clear. The text of the appeals court decision by Judge King reads:

"Each plaintiff in this case is a policyholder with homeowners, renters, or commercial-property insurance whose property was damaged during the New Orleans flooding. Despite exclusions in their policies providing that damage caused by “flood” is not covered, the plaintiffs seek recovery of their losses from their insurers. Their primary contention is that the massive inundation of water into the city was the result of the negligent design, construction, and maintenance of the levees and that the policies’ flood exclusions in this context are ambiguous because they do not clearly exclude coverage for an inundation of water induced by negligence. The plaintiffs maintain that because their policies are ambiguous, we must construe them in their favor to effect coverage for their losses."

Therefore the jurisprudence is sound. But justice does not seem to have been served. The people at fault should be the ones paying for the damage to these houses--not those victims of the hurricane who are now left with more worries than fears allayed nearly two years after they lost their homes and way of life.

For more, read the NY Times article here.

Communication Between the Branches Sometimes Lacking

The recent ruling of a VA judge striking down driving fees as unconstitutional since they only apply to VA residents and not all who use the VA roads is illustrative of the sometimes lack of communication between the legislative and judicial branches of government--even at the state level.

The law which was created in order to finance a transportation bill that the VA legislature had passed violated the equal protection clause of the US Constitution since it only applied to state residents and not all who used VA roads. The ruling is a clear indication of what the judge believes to be constitutional: a law which applies to everyone using VA roads--not only VA residents. It is a simple change in language which could have been quickly remedied while drawing up the bill instead of dragging the bill through a hefty legal process, wasting time and resources of government that could better be spent elsewhere.

Going Beyond Unreasonable Searches & Seizures

The new law that Bush signed has violations of the 4th Amendment written all over it. According to an article by the NY Times, the new law both expands the definition of "electronic surveillance" and clarified the FISA act of 1978 to allow for warrantless searches.

The article reads:

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

By changing the legal definition of what is considered “electronic surveillance,” the new law allows the government to eavesdrop on those conversations without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is “reasonably believed” to be overseas."

Bush's decision goes against the general prevailing jurisprudence on this issue in the lower courts which have reviewed this matter. Recall that nearly a year ago on August 16, 2006 a Detroit district judge, Anna Diggs Taylor, ruled that the NSA terrorist surveillance program violated the 4th Amendment. The 6th Circuit Court of Appeals failed to rule on the issue throwing it out on the justiciability doctrine of standing and thus refused to rule on the actual merits of the case.

Will Immigration Become a National Issue in the Courts?

The National Journal is calling attention to a District Court ruling in PA regarding an ordinance against illegal immigrants which may make its way up to the USSC. The PA District Court ruled that the ordinance which deals with housing and employment of illegal immigrants falls outside the jurisdiction of the municipal government of the states. A 1986 act called the Immigration Reform and Control Act stipulates that only the federal government--not the states--are allowed to regulate these matters.