JIM LEHRER: Diversity at the Supreme Court and to Elizabeth Farnsworth in San Francisco.
ELIZABETH FARNSWORTH: NAACP President Kweisi Mfume last week criticized the Supreme Court for a lack of diversity among its law clerks.
In a speech in Atlanta, he said, "The Supreme Court finds themselves as hypocrites, particularly on diversity and affirmative action issues. Ask a Latino or Hispanic law clerk. They're both so few and far between, you have to go hunt to find one. You know in 200 years there's never been a Native American law clerk?"
Mfume also said that of 394 clerks hired by the current justices during their respective tenures, only 7 have been African-American. Each of the nine justices hires up to four law clerks a year. According to a recent report in USA Today 24.3 percent of those clerks have been women, 4.5 percent Asian-American, 1.8 percent black, 1 percent Hispanic, and all the rest of been white men. 40 percent have been from Harvard and Yale.
Now we hear from five former Supreme Court clerks. Three are professors of law. John Yoo of the Boalt Hall School of Law at the University of California-Berkeley clerked for Justice Clarence Thomas; Neal Katyal of Georgetown University clerked for Justice Stephen Breyer; and Sheryll Cashin also of Georgetown clerked for Justice Thurgood Marshall. In addition, Ted Cruz, who is now in private practice, clerked for Chief Justice William Rehnquist; and Kathryn Bradley, also in private practice, clerked for Justice Byron White. Thank you all for being with us.
Sheryll Cashin, do you think the Supreme Court would be better served by a more diverse group of clerks?
SHERYLL CASHIN, Former Supreme Court Clerk: Absolutely. I think diversity among the law clerks is imperative or critical for three reasons: First, I think it would improve the quality of judging among Supreme Court justices. Supreme Court justices decide decisions that affect a broad array of people but they live very insular lives.
And I would feel more confident about them seriously engaging in a diverse array of intellectual perspectives if they're personally confronted with people who represent different walks of life. Second, the Supreme Court clerk's credential is an opportunity, an incredible opportunity, paid for by U.S. taxpayers, and I think it's only right and just that a broader array of people get a shot at that. And then finally and most importantly I think the public, the American public, would have more confidence in the institution if a broader array of people served the justices there.
ELIZABETH FARNSWORTH: Ted Cruz, do you agree with that? You're the only member of a minority group to have clerked for the chief justice, Rehnquist, is that right?
TED CRUZ, Former Supreme Court Clerk: Yes, Elizabeth. I don't think anyone would disagree with Sheryll that it would be wonderful if there were more minorities who were working at the court. The problem and the problem that there's really nothing addressed to in the criticisms that are being levied at the court is that for whatever reason there are very few minorities in the pool from which the court typically hires its clerks.
That in and of itself I think is a severe problem, and typically the court is hiring from those students at the top law schools in the country and for whatever reason, there are very few minorities there. That strikes me as a problem less with the court than with the educational systems we have throughout our country.
ELIZABETH FARNSWORTH: I'm going to come back to that, Mr. Cruz, but do you think the court would be served better if there was a more diverse group?
TED CRUZ: Well, I think it's a question of putting the cart before the horse. If I could wave my hands and have more minorities in the pool and more clerks up there, sure, but the problem is they're not there.
ELIZABETH FARNSWORTH: Kathryn Bradley, where do you come down on this?
KATHRYN BRADLEY, Former Supreme Court Clerk: Well, I agree with Sheryll that there would be a much better opportunity for students, for the court, and for the public if there were broader diversity at the court.
But I also agree that there's a problem with the pool, and it's not even so much where there are minority students that hire at the top law schools or how many minority students there are or women at those levels, but what the court's looking at in terms of what its pool really is, because I think in practical experience the court does not look in at all the pool out there. It's looking at a limited body of applicants drawn from a much broader potential set of people who are perfectly qualified to serve at the court.
And if you want to change the way the court operates in terms of who its law clerks are, then I think you have to broaden the court's focus in terms of who should we be looking at, what schools should we be looking at, what judges should we be looking at, as sending out potential law clerks, and so forth.
ELIZABETH FARNSWORTH: And, Ms. Bradley, you're the first clerk from the University of Maryland, is that right? Is that the kind of thing you're talking about-getting more clerks from other universities?
KATHRYN BRADLEY: That's correct. And I came from an atypical experience not only from being at the University of Maryland, but I'd also had a district court experience in a federal court for two years prior to coming to Justice White, as opposed to the typical path through an appellate clerkship, in particular through particular appellate clerkships that tend to feed to the court.
ELIZABETH FARNSWORTH: Go ahead.
KATHRYN BRADLEY: And my experience was that I was as competent and as qualified to be there as anyone else was. I understood the issues as well as anyone else did, and my practical experience having been in a district court was valuable to the justice that I served. I was glad and very, very fortunate that Justice White was willing to look at schools beyond the top ten, beyond the Ivy League. And that's unfortunately not the typical thing that the justices do at the court.
ELIZABETH FARNSWORTH: John Yoo, just on the matter of racial diversity, how important do you think it is?
JOHN YOO, Former Supreme Court Clerk: Well, let me be the one that dissents from everyone else who's speaking, because I think diversity would be a terrible thing at the court. What the NAACP wants is to make the judiciary representative of the people as a whole or of the political system, and that's exactly what we don't want the judiciary to be.
We want the justices to be impartial, separated from society, so they can stand up for individuals when the government oppresses their constitutional rights. Is this what's going to happen when everybody has a piece or a quota or a setaside for clerks at the Supreme Court? I don't think so.
ELIZABETH FARNSWORTH: Let me just interrupt you. Would diversity be a bad thing, or is it-if diversity is achieved in that way, that it would be a bad thing?
JOHN YOO: If diversity just happens as a result from the criteria that they're using now, that's great. But the idea that diversity has to be elevated over academic excellence, smarts, quickness, success at school, I think is a very bad idea, because the point behind it is for clerks to have a certain viewpoint, minority clerks, and that they're going to impress those on the justices and then the justices are going to change their minds and become representational. That's a very dangerous thing, and I think it undermines the idea of a neutral, impartial judiciary in this country.
ELIZABETH FARNSWORTH: So you're really objecting to it on sort of a principled matter that the whole-the theory it's based on is flawed?
JOHN YOO: That's exactly right. And let me ask a hypothetical. Suppose in 1954 segregationists from the South had a quota of Supreme Court clerks. Can we be sure the Supreme Court would have decided Brown Vs. Board of Education the way it did? Probably not, I think. It's the fact that the court is distant from society in the way it is that it can make those kind of decisions.
ELIZABETH FARNSWORTH: Neal Katyal, what's your response to that?
NEAL KATYAL, Former Supreme Court Clerk: There is no question in my view that diversity plays an important role and can help the court, but the question is more fundamental. It's whether or not we're going to point the finger at the Supreme Court as the NAACP has done, or whether we're going to point our finger at ourselves as lawyers for creating this diversity problem.
The numbers clearly aren't good on the number of minorities that are hired. The current justices have only hired seven minority clerks. And four justices have never hired any at all. The numbers alone can't tell whether or not there's any kind of intentional discrimination, and we don't even have the proper data on the number of black Supreme Court clerks over history with a number of minority clerks over history, but here's what we do know.
We know that the numbers of the Supreme Court in general aren't different from what they are elsewhere in law. Take the law from partners, for example. If you take the 250 top law firms, 3 percent of the partners are minority. That's 97 white partners for every 3 minorities of all races, black, Hispanic, Asians, and so on, take judges, 94 percent of judges are white.
What we need to do is what I think Ted is hinting at, that we need to transform legal education into a different process from the way it is now. We need to change the way law schools look at minorities, and by that I mean all minorities. You know, Ted might be the first Hispanic to clerk for the court but he's really not the first religious person to clerk for the court, and those kinds of experiences and life experiences are important for the court and for the justices here.
ELIZABETH FARNSWORTH: Okay. I'm going to come back to looking at the pool and how we change it, but I'm intrigued with what John Yoo just said. Sheryll Cashin, what about this point, that wanting to have a more diverse group of clerks to influence the justices is the wrong motive altogether?
SHERYLL CASHIN: Well, first of all, I have to take issue with John Yoo's contention that somebody's calling for a quota. No one here is calling for a quota, and no one is suggesting that a minority clerk should be hired as not qualified. And I want to underscore that people talk about a pool problem.
I think the problem is there are minority candidates out there that are well qualified that are being overlooked. Now, the notion that having a diverse array of clerks is somehow going to influence the justices to decide cases differently I think is insulting to the justices. I do, however, think that if a justice like Justice Scalia, who is known among the clerks' lore for frequently hiring a liberal clerk, I think if the justices have there-right there a person who will engage him and her, I think it's healthy. It's healthy to be sure that a justice has fully considered the full range of intellectual perspectives, and that's all we're saying.
ELIZABETH FARNSWORTH: Did it happen with you? Did it happen with you? Can you give us an example?
SHERYLL CASHIN: Well, I clerked for Justice Marshall, and Justice Marshall and I probably were of like mind on a lot of things, however, I can recall a time when we disagreed on a case and I engaged him. I don't think--ultimately the justice makes up his own mind, but I personally saw myself making a difference and at least making sure that he considered everything I felt that he should consider.
ELIZABETH FARNSWORTH: Neal Katya, in your experience did it make a difference? Did your life experience make a difference in a case or a decision?
NEAL KATYAL: I don't want him under a lot of different ethical rules because I've clerked for a current justice, but I'll tell you the following: As I approached cases, it did make a difference to me. I'm not saying it had an influence on the decision, but if I got an immigration case, for example, I thought about my parents, I thought about them as immigrants.
You know, I think that if there is an Internet case and someone is cyberspace savvy, it's going to influence them or a religious freedom case, someone Who's religious. All of these things do matter, and the justices are nine very worldly people but they haven't seen everything. Nobody has, and of course, a clerk could open the window and open the world to a justice that they may not have seen before.
I'm not saying that necessarily happened in my case or in others on the current court, but over time, if you read the Thurgood Marshall papers, you'll see that that did happen for other clerks and other justices.
ELIZABETH FARNSWORTH: Ted Cruz, how about you?
TED CRUZ: I don't think it made a difference at all. I agree very much with what Sheryll said a minute ago, that the idea that we need to change the representation of clerks to influence the justices is insulting and not an accurate representation of what goes on.
A lot of the focus on this strikes me as a little bit of much ado about nothing. A clerk's job is basically to help out with the justices, do legal research and to do his or her job. And I don't think it should be overstated that we're talking about putting people into these great positions of power or influence. At the same time I think it's very worth pointing out that what Neal said is exactly right.
What we see in terms of Supreme Court clerks is also unfortunately what we see at the very tops of the law schools, and at the various areas of the legal profession, and rather than tearing down those institutions, rather than attacking the court for not hiring minorities, I think we need to be asking why is it that there aren't more minorities that are excelling like that?
ELIZABETH FARNSWORTH: Okay. Kathryn Bradley, before we ask some of those questions, you were the only female law clerk for Justice White, I believe.
KATHRYN BRADLEY: That's correct.
ELIZABETH FARNSWORTH: Did it make a difference that you were there?
KATHRYN BRADLEY: I think so, and Justice White, while I was-in the years before I was at the court had had the custom of hiring one woman a year. He never had more than one woman in chambers, but he always had one, and I think it was important to him to have someone there to give some broader perspective.
I can't think of particular instances where my gender made a difference, but I know that it did affect the way I looked at cases and the things that I brought to him and just the way that I interacted with him when we were discussing cases. So I do believe it was valuable.
ELIZABETH FARNSWORTH: John Yoo, does this whole way of looking at it bother you?
JOHN YOO: No. In fact, let me also say it's quite right that we need clerks to challenge the justices ideologically, keep them on their toes. The thing that's wrong with the NAACP's proposal is that it concludes that minorities all have the same viewpoint. You don't need to be black or white or Hispanic or Asian to challenge the ideology of the justices.
You just have to think differently than they do. It has nothing to do with their racial background, unless the NAACP is taking a position that all blacks or all minorities think a certain way and present a certain ideological viewpoint. And that certainly has not been my experience of the minority clerks that I knew and met while I've been clerking at the court.
ELIZABETH FARNSWORTH: John Yoo, why do you think there are so few minorities? Most everybody seems to agree that it has to do with just the way the whole system is constructed. Is that it, or is there actually some discrimination?
JOHN YOO: I don't think there's any discrimination at all. I think what's going on is that all the justices hire from essentially the same group of people, people who graduate in the top 10 percent of the top 10 law schools in the country and clerk for a well-known appellate circuit judge usually in the federal system. This is maybe 200 or 150 people a year.
There just aren't that many blacks or minorities in that pool every year. Many of us who are clerks helped sift through all those applications when we're there, and you look at all these people and there just aren't that many of them in any one year.
ELIZABETH FARNSWORTH: Sheryll Cashin, can that be changed? Is there a way to change that?
SHERYLL CASHIN: Well, let me-I have to counter one thing Mr. Yoo has said. First of all, my personal experience I had done a lot of the things that a justice looks for. I had a very prestigious clerkship with a court of appeals judge who had a feeder rate to the Supreme Court.
I was on the Law Review at Harvard. I had a masters in English Law from Oxford, Marshall scholar, honors-wasn't in the top 10 percent of my class-but the only person who was willing to even interview me when I applied to the Supreme Court was Thurgood Marshall. And what I'm saying is there are qualified people out there but I think they're being passed over.
TED CRUZ: If I was a justice, I would have hired her.
SHERYLL CASHIN: And let me say, one thing-a little known fact about Justice Rehnquist is that he has one of the best records on the court for hiring from a diverse range of schools.
I think just if you look at his public record, he hires outside of the top 10, even the top 20 law schools, and he's figured out that you don't have to be from the Yales and Harvards of the world in order to do a good job. I suspect he has to exert some extra effort to find those people, and that's all I'm saying the justices should do, and the law schools should make those candidates more available to the justices.
ELIZABETH FARNSWORTH: Neal Katya, do you agree with that?
NEAL KATYAL: Well, I certainly agree with the latter part of the statement that law schools need to do more. Right now--you have to understand what law school is right now is a contest of rudeness between professors and students. It is not a congenial atmosphere. It's not an atmosphere where the students are put first.
It's really a take-the-money-and-run operation, and it's wrong. What law schools need to do is prepare students and minorities and all minorities for this kind of very in-the-know process that clerkships are. It's not the kind of thing that's just based on merit.
There's a lot of other stuff going on that's lurking under the surface-who you know-which professors you have-the right judge you clerk for and so on-and law schools need to be up front about that, tell students what's going on, and provide institutional mentoring to all of them, and that's what's going to change the laws, the Supreme Court process, and numbers, but also the numbers throughout the law firms and everywhere else.
ELIZABETH FARNSWORTH: Ted Cruz, do you think that's a good solution? Should that be done?
TED CRUZ: I think it makes a lot of sense to expand the pools in terms of the law schools that are looked to, but I think one thing that's important to keep in mind, and it's one thing that I think everyone here agrees upon, nobody who knows these justices believes that there's any sort of discrimination going on that I'm aware of. I think any of the nine justices would be overjoyed to find a clerk whom they felt was the best qualified, who also happened to be a minority, but like John said, it's not a case of let me go find my minority clerk.
When I applied to be a law clerk, the fact that my father had come to this country as a Cuban immigrant was not what made me a law clerk, and-
ELIZABETH FARNSWORTH: In fact-let me just ask you, when you applied, the justice who read your papers had no way of knowing anything about that, right-well, they might know but they wouldn't know what race somebody was necessarily.
TED CRUZ: Of course not. I mean, the vast majority of these applications you can't tell at all. You get a transcript; you get a resume; you get a writing sample, and unless someone consciously self-identifies something there or unless someone has a noticeably ethnic name, in the vast majority of cases, it's impossible to tell.
ELIZABETH FARNSWORTH: Okay. And Kathryn Bradley, just very quickly, do you think this is the right solution to expand the pool coming from the bottom?
KATHRYN BRADLEY: I do agree that it's the right solution. I think a lot of it has to do with the degree of confidence that the law schools have in their students. When I applied coming out of the University of Maryland, people told me I was crazy to apply, and that it was not worth the time and trouble to send in the applications.
If I had listened to them, I never would have been there, and I think it's important for the law schools to realize they've got candidates who are qualified to be at the court, and I think it's important for those of us who are in practice and in the law schools to look for those kind of students and to foster them and to bring their names to the attention of people at the court.
ELIZABETH FARNSWORTH: Well, thank you all very much for being with us.