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Why So Few Women Supreme Court Clerks?

Amber (Prettier than Napoleon) asks the question, and it's a very interesting one.

Is the cause possible differences in innate intelligence at the tail ends of the bell curve (what I'd heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)? Sex discrimination in law school classes (whether on the exam or before) or in hiring? Social pressures that push some women away from law school? Differences in innate ambition? Social pressures that lead men to be more ambitious than women (for instance, because less ambitious men face more condemnation from parents, peers, or prospective girlfriends than do less ambitious women, or because more ambitious women face more such condemnation than more ambitious men)? The tendency of women to marry at a somewhat younger age than men, coupled with a tendency of married people to on average be less likely than single people to move? (Moving is often needed to get the prestigious appellate clerkship that can help lead to a Supreme Court clerkship.) The greater tendency of women than men to have spouses or lovers who aren't easily movable, which may again make it less likely that women would move to get the prestigious appellate clerkship? A combination of some or all of the above?

I'd love to hear speculation, but even more I'd love to hear actual data.

UPDATE: By the way, some data, from my year clerking (1993-94): Of the 38 clerks (including 4 who were clerking for retired Justices), 11 were women. As I recall, 5 of the 11 women were married, none had children, and at least 4 of the married women had left their husbands in a different city.

Of the 27 men, only 5 were married, 5 had children (including one who was divorced and whom I didn't include in the 5), and 4 of the married men's wives were with them in D.C.

This is just one year, and any serious study would have to look at much more than one year. But it led me to wonder whether the women who had the law school credentials to get the prestigious but often out-of-town appellate clerkships that are stepping-stones to the Supreme Court

  1. might be more likely to be married than comparable men (presumably because women marry slightly younger than men),
  2. might have more difficulty getting their husbands to move with them than men would have getting their wives to move with them (perhaps because the women's spouses are more likely to have hard-to-move jobs than the men's spouses), and
  3. might have more difficulty clerking, especially in a highly demanding clerkship, if they have children than comparable men would.
If the answers to some of these questions are yes, then this might lead some of these women to drop out of the clerkship race, likely by not looking for a prestigious out-of-town appellate clerkship.

RJT:
What about less of a desire to go into academia? One of the primary benefits of a Supreme Court clerkship seems to be a major increase in the probability that a prestigious law school will hire you. Perhaps women are less interested in academia?
7.7.2006 7:50pm
Amber (www):
I would think women would be more interested in academia, if only because it's a slightly more flexible career path that might be more conducive to childbearing.
7.7.2006 8:03pm
davidbernstein (mail):
Amber, you'd think so, but the data show that, as I recall, 2/3 or so of applicants for tenure-track law school teaching positions through the AALS are men. I doubt that comes close to fully explaining the clerk disparity, however, as I don't think most clerks become law professors, and it's certainly a useful career path for non-future-profs.
7.7.2006 8:10pm
The Drill SGT (mail):
How about the obvious: The USSC is mostly men and hires mostly men theory. I'm not a raging feminist, but it is within the realm of possibility
7.7.2006 8:17pm
Alan eminence gris (mail):
A few years ago, I had a legal case which lasted 8 years. During this time period we had four solicitors, from a large international legal firm handle the case. The first three were young women. All were exceptional, the best of their generation. They endured for an average of two years before they moved on. Each apologised for leaving the case in various ways; the message was the same. There is more to life than being an 18 hour a day litigator. They all moved into less competitive legal careers. Looking at those who had become partners in the firm, I could only observe, that they were eminently sensible.
7.7.2006 8:18pm
Stephen M (Ethesis) (mail) (www):
Wasn't that long ago that a Supreme Court justice explained why he didn't hire female clerks. It was interesting, in that he explained it was justified by his personal comfort (he didn't feel comfortable swearing around them) which he felt trumped the law he was imposing on others.

It really made me think.

Why not interview some people?
7.7.2006 9:08pm
elChato (mail):
if 2/3 of applicants for professorships are men, that's a big part of the explanation. For another, probably a lot of women who want to have children in the relatively near future know that the other common post-SCT clerkship route is a job in a very large law firm, with its demands for 12+ hour days. If you know in advance you have no interest in that, your incentive to live in an expensive city on a salary that is modest for a person of your credentials, when you are not interested in pursuing the common afterpath of a clerk, is diminished.
7.7.2006 9:18pm
WAB (mail):
Given the very large number of highly able female law graduates and the very small number of SCOTUS clerkships available, it is difficult to imagine that there are not many extremely well qualified female applicants for each position. If that is the case I'd put the blame on the people choosing the clerks.

It would be very interesting to see real data for both SCOTUS and appealate court clerkships.
7.7.2006 10:03pm
Lev:
Maybe not enough are lookers?
7.8.2006 12:08am
Eugene Volokh (www):
There surely are many extremely well qualified female applicants for each position -- but they are competing against many extremely well qualified male applicants. If there are some forces operating to reduce the number of the extremely well qaulified female applicants, that might explain why a relatively small share of the clerkships end up occupied by women.

So if you "put the blame on the people choosing the clerks" when you infer that they're discriminating based on sex, the mere presence of "highly able female law graduates" in the pool doesn't justify such an inference.
7.8.2006 12:17am
jimbino (mail):
Why there are almost no women physicists, chemists, mathematicians and engineers is easy. Larry Summers got it right. But why there are few women clerks is truly mysterious, since the major qualification is ability to kiss up. My female law school colleagues had no problem bedding down the professors, so why can't they get clerkships?
7.8.2006 12:19am
Kingsley Browne (mail):
I think that it is probably the cumulative effect of many of the factors that Eugene cites, as well as some mentioned by others.

I have not seen much recent data on the subject, but the data I have seen suggests that men are disproportionately represented at the very highest levels at the most elite schools (law review, Coif, etc.). I know this used to be true (say, ten years ago), but I'm not sure if it still is. (There are different patterns at non-elite schools). Since most Supreme Court clerks come from elite schools, that could be a partial explanation.

Two reasons for the male disproportion at the top of the class are the greater male variability in intellectual performance that Eugene mentioned (more at the very top and more at the very bottom) and a greater aversion to competitive environments among women. (Lani Guinier wrote about this).

Women are less likely than men to move for jobs, and married women are even less so. Since being a Supreme Court clerk requires residing in Washington (and possibly moving to a different city for the preceding clerkship), that is undoubtedly a factor.

I don't think that the motherhood issue is as important for Supreme Court clerks as it is for working in law firms (as Alan eminence gris adverted to) simply because it is a one-year gig. However, women with children are less likely than men with children to basically ignore them for a year, and as elChato mentions, if you think that your career trajectory is not going to be substantially enhanced by the grueling one-year stint, then you might be less willing to do it.

Eugene also mentions "differences in innate ambition." This is probably also a factor. That is not to say that women lack ambition, but women tend to have a more balanced approach to life and are less willing to subordinate everything in their lives to achieving and occupying high-status positions. Eugene refers to "social pressures," but part of this difference is almost certainly a consequence of differences in sex hormones (primarily acting on the developing fetal brain) and not simply differential socialization.

I doubt that differential desire for an academic career is responsible, simply because I don't think that people who take Supreme Court clerkships are much motivated by the thought that it would help them get (specifically) an academic job (as opposed to some other good job).

As David Bernstein mentioned, a substantial majority of applicants for tenure-track positions are male. My guess is that it is the "publish or perish" tenure system that discourages women from academic jobs, as Amber is correct that in many ways, an academic career can be quite flexible and would be attractive to women for that reason. But the publication system is one that can be off-putting for risk-averse people who do not thrive on competition, and women tend (on average) to be more risk-averse and less competitive than men.

I discuss these issues at length in my book "Biology at Work: Rethinking Sexual Equality" (Rutgers University Press, 2002).
7.8.2006 12:20am
Bobby B (mail):
As a (much-lower-than-USSC) court clerk in my law school days, I had conversations about this trend (which extended down to my less-than-lofty levels) with many of da' judges.

Judges and clerks spend a LOT of time together. Late nights, all days, close quarters, soul-baring in the argue-the-case-and-write-the-opinion modality.

Older men (the bulk of the judges where I was) said they simply felt more comfortable with male clerks in these settings. The intellectual relationship could be comfortably closer naturally, and there was less risk of the ever-feared (but maybe unrealistically-feared) complaint of some sort of sexual . . . discrepency.

I predict that, as more post-1960 judges come of age, this trend disappears, just as true anti-black bigotry disappears as the old guard dies off.
7.8.2006 12:24am
marghlar:
I raised this over at Amber's, but I thought I'd toss it into the ring here:

Feeders are overwhelmingly male -- far more so than either SCOTUS or the Circuit Courts in general. Not one of the top 12 feeders is female.
7.8.2006 1:16am
Brian G (mail) (www):
I certainly like the "fear of sexual harrassment" angle. Once in a law school class, a woman classmate said that "she knows that Clarence Thomas would not have hired Laura Ingraham if she weren't skinny and blonde." All it takes is for one misconstrued comment out of a justice's mouth and their reputation is shot. (Rule does not apply to Breyer, Souter, Stevens, or Kennedy - they are liberals, so they get a free pass...yes Kennedy is offically a liberal now).

I also like the motherhood angle. Many of my law school classmates are Moms and from what I know about them being a Mom comes first.

I have 2 kids and am about to start my final semester. (Finishing up in 2 1/2 years). I could easily go clerk for a judge. My wife (if she was a lawyer, thank God she isn't) could and would never even think about it.
7.8.2006 1:23am
hitnrun (mail):
Before you launch into questioning the lack of women in SCOTUS clerkships, you should probably see if there isn't a tendency toward men in broader circles those clerkships are a part of; law, academia, time consuming professional careers, or careers requiring extensive, competitive education, for example.

Also, it's worth noting that equality is a recent, and still solidifying, phenomenon in our society. And clerks and judges tend to be, for lack of a better term, old. At least in comparison to other occupations.
7.8.2006 1:33am
Guest poster (mail):
The simplest reason why women do not do well in supreme court hiring is that women tend to have inferior credentials existing law school. For instance, in the class of 2006 at Harvard, there are 22 people who graduated magna or summa cum laude and were on law review. 20 are men and 2 are women. 17 of them are clerking; 16 men and 1 woman. I'd suspect that if you limited your sample set to those that exit law school with the necessary resume baubles, men and women would do about this same. Why fewer women leave law schools with the necessary credentials, I couldn't tell you, but let's not blame it on the judges.

The other big issue that no one has mentioned is the strong difference between the Justices. Here are some statistics on how many clerks from both genders the Justices hired:

Justice Breyer: 14 men, 16 women
Justice Stevens: 18 men, 12 women
Justice Thomas: 18 men, 12 women
Justice Ginsburg: 18 men, 12 women
Justice O'Connor: 14 men, 10 women
Justice Souter: 20 men, 10 women
Chief Justice Rehnquist: 13 men, 5 women
Justice Kennedy: 25 men, 3 women
Justice Scalia: 26 men, 2 women

The gender disparity in the Kennedy and Scalia chambers is quite resounding. I think that such huge disparities might in part be explained by the paucity of qualified women and especially qualified conservative women, but the 51-5 ratio (as compared to the ratio of even Justice Thomas) makes me wonder whether some kind of sexism is at play.
7.8.2006 2:36am
Guest poster (mail):
Sorry, those are the statistics from OT '00 to OT '06. I am omitting Alito and Roberts due to insufficient data.
7.8.2006 2:36am
Ray:
Well, I know I've heard a number of news stories in the last year or so about the increasing amount of women taking time out for having a child, and then deciding not to go back to work.

NOW had issued some kind of statement I believe on this trend, and their worry was that the feminist movement was losing steam, and overall it really does seem that more and more women are actually preferring either the more old fashioned roles for women, or at least toning down their ambitions to be flexible with more traditional stay-at-home scenarios.

That would be disappointing if there were no blame to be laid anywhere I suppose. All of those social-construct theories of a male dominated society down the theoretical tubes.
7.8.2006 4:30am
Witness (mail):
Most S. Ct. and feeder judges are men. Most men's wives prefer that they not spend most of their time with other women. Thus, most judges are/feel compelled to hire men as their clerks to avoid confrontations on the homefront.
7.8.2006 5:57am
Frank Drackmann (mail):
I'd be interested to see how many of the clerks are minorities. I suspect its not very many. Its probably that Bell Curve thing, or the discrimination against those with criminal records, or maybe the Justices are just a bunch of hypocritical racists.
7.8.2006 7:44am
Just:
I don't think it's genetic, the Bell Curve.

I think we like to be around folks like us/who like us/who don't find us "lesser".

Why would you want to work someplace where you were made to feel "lesser"? Those daily little comments, offhand jokes, deep discussions about the place/role/capacity of women -- even when seemingly innocuous to a middle-class white man who's lived in the majority -- can made a workplace not a really healthy place to be. I think often it starts on law reviews. Women often miss out on the comraderie because they are "different", not into the drinking/competitive/macho ways of working with others that are outside the actual work product.

No matter if you try to/want to be treated equally -- like a person, not a gender -- there's always someone (quite often a woman) who calls distinction to the "pretty femininity" issue. It helps some women to get ahead, to distinguish themselves like this, but only a few can make it on being "special", different from the guys. This strategy would not work if the numbers were more equal, but it more than works for that one particular woman to distinguish herself in that feminine/non-a-male way.

The thing about Scalia is similar to the way women are treated in the Catholic Church, and from what I hear, even in traditional Jewish society. You can go so far, but at the top, we all know the roles of men and women. Who knows better? Father or mother? We downplay women's contributions as more airy and less analytical, even if the end results would prove more effective.

I fear these type of attitudes are growing in recent years as we turn toward more traditional times, a wistful return to the innocence of the 60s. If you're raising a daughter, and tuned into popular culture, you may see this in the clothing styles and character portrayals. (I think upper and upper middle class girls are insulated because their wealth and mobility allows more fashion choices.) The message to the rest seems to be: you are your body and your girliness personality. Don't try to be "masculine" or if you do, understand that you are the outsider.

In short, I think it's more cultural than genetic. No matter the external rewards, if you don't fit in where you have to give of yourself everyday in your work, it's unhealthy and unhappy. So you tend to move on and screen yourself out for those other opportunities, that might not be so bad at the upper levels.
7.8.2006 10:21am
Just:
correction:
the innocence of the FIFTIES/50s.
7.8.2006 10:23am
Kingsley Browne (mail):
It seems to me that Guest Poster's figures may suggest bias in favor of women.

The number of female clerks compares quite favorably to the tiny number of women with top credentials at Harvard. (By the way, Guest Poster, are these data publicly available?). Despite the very large difference in credentials, the ratio of male to female clerks is only about 2:1 (incidentally, the same sex ratio of those going into academia, per David Bernstein's figures). Assuming that the Harvard figures are representative of other top schools (which may or may not be true), it would seem that Scalia and Kennedy's figures are most reflective of the pool.

Also, notice that even Ginsburg had a 3:2 ratio of men to women. I imagine that if she thought that the feeder judges were discriminating against women in their hiring or in their recommendations, she would respond in some way (such as by using different feeder judges).
7.8.2006 11:07am
Zywicki (mail):
I'm not sure the academic/big law firm/moving explanation gets to it. SCOTUS clerks are more or less right out of law school. We're generally talking about late-20s, unmarried, childless people who are considering taking one year of their life to do one of the most interesting and important things they would ever do. So, assuming equal credentials (which is probably not true, as Guest Poster observes), it seems doubtful to me that they are self-selecting out at the stage of applying for SCOTUS clerkships after making the sacrifices all through law school. All of the other things--kids', long hours, etc.--presumably become factors later on in the decision to leave law practice, but it seems implausible to me that they would explain an unwillingness to apply for or accept a clerkship.

Moreover, it is my impression that those who seek and secure SCOTUS clerkships generally do so as an end in itself, as a culminating achievement in and of itself, rather than simply as a stepping-stone to something else.

So it seems to me that the supply and demand features of the precise clerkship market described by Guest Poster are somewhere closer to the mark, and in particular, comparative attitudes of men and women toward the law school experience. On this point, I find Kingsley Browne's comments on narrowly-focused ambitiousness versus life balance to be quite illuminating and consistent with the scholarly research I have seen on this point.

Let's face it--much of what we do in law school is screening and winnowing relatively arbitrary accomplishment for accomplishment's sake. At some point people ask themselves how much marginal effort they want to expend to be ranked first in their class rather than fifth or tenth. Or how about the decision whether to be a senior editor on the law review? And even if you finish first, it remains a crapshoot as to whether you get a SCOTUS clerkship at the end of the rainbow. So this may feed into the risk-preference point that Kingsley notes.

Looking at Guest Poster's data, it is also interesting that like the others, both Ginsburg and O'Connor hired more men than women, which I think raises some doubts about various idiosyncracies of sexist attitudes or male-female relations as suggested by some Commenters. If this data is generalizable to feeder circuit court judges, and I suspect it is, then the eventual ascension of more senior and influential female circuit court judges will not likely change the ratio.

Note also that feeder circuit court judges--i.e., the most prestigious circuit court judges--also tend to be disproportionately male, suggesting a similar dynamic in that even-smaller world of human interaction and competition than the law school/SCOTUS world. Think of it this way--if you are an Article III circuit court judge, with one of the most prestigious jobs in America and life-tenure, why do some judges nonetheless feel compelled to seek to be even more prestigious within this little world? Once they reach that level, why do they seem compelled to try to get to the Supreme Court, such that they seem genuinely disappointed when they do not?

Query whether this means that even if the percentage of female judges rises (and the competition for getting a judgeship in the first place is exactly the same dynamic repeated--a very small subset of a very small subset of people, so it is not inevitable that it will), it is not obvious to me that necessarily means that the number of female feeder judges will necessarily rise over time.

To throw out one other supply-demand hypotheses that might influence the numbers. Casual empiricism suggests that male law students are generally more likely than female law students to be both conservative and overtly so (e.g., Federalist Society) in law school. This might create a selection bias in both serious applications and eventual offers among Justices to the extent that they take ideological compatibility into account expressly or implicitly in their hiring. I know nothing about Scalia's hiring, for instance, but could this phenomenon explain part of the lopsidedness of Scalia's ratio, for instance?
7.8.2006 11:28am
Just:
Kingsley:
If the numbers indeed hold true at schools other than Harvard, do you have a theory as to why? Bell Curve? More males prepared to compete -- well versed at what it takes to establish the top credentials at those places? Perhaps we need more of the current top players -- distinguished attorneys, former clerks, professors, judges, etc. -- to propogate daughters and give them this competitive advantage if we want to see more end-result equality? I would hate to think that as Americans we'd be willing to settle for only 1 out of our 9 top decisionmakers being females for an extended period of time. Unfortunately, isn't this what the paucity of women clerking at this level going to lead to? I'd be disappointed if we all just accepted this as the norm, for whatever reason. (But I really hope it's not the genetics explanation. I do believe so many things can be overcome if the will, and belief in self, is there...)
7.8.2006 11:34am
Just:

Maybe someone could do a scientific study?

Instead of educated males speculating, why not get out there, interview the women, and listen to their responses? Often the people closest to the source of inquiry have answers not yet considered by those peering in from above.
7.8.2006 11:40am
Kate1999 (mail):
Let me make a broader point.

Discussions such as this, which consider why members of a particular elite group that are supposed to be part of a meritocracy tend to be of a particular race/gender such as white/male, always suffer from a lack of the underlying data of the applicant pool. That is very much by design: the organizations that give credentials to the applicant pool feel the need to disguise that data, as revealing it would reveal how very uneven those credentials end up being distributed through the blind credentialing process.

Why is that? Here's my take: As a society, we are extremely uncomfortable with the idea that a merit-based credentialing process (like law school exams and grading) can reveal strong race/gender effects. We have a deep commitment to egalitarian ideals, so we instinctively say that any institition that hints at those effects must be biased. So you end up with a little game, in which each institution tries to hide the effects through affirmative action, etc., and any instition that reveals the effects gets tagged as being the one that is biased, sexist, etc.

I don't mean this by way of criticism: I'm egalitarian myself, and I kind of like the idea that institutions shield us from the reality of things. But I think it's helpful to realize that there is a long chain of institutional hide-the-ball going on here.
7.8.2006 11:49am
Just:
I heard an older law school professor once who said,

"It is my job to teach you once you are here. If I am not reaching you, I am not being effective in my teaching, since you are all qualified to be here. I just have to work a little harder in my teaching skills to better communicate the material so you can better understand it."

Rare, but oh so refreshing.

What if the professor teaching you believed in the Bell Curve and the inevitability of white male superiority from the start?

(And you were not a white male.)
7.8.2006 11:59am
Just:
"I kind of like the idea that institutions shield us from the reality of things."

The reality of things being a certain gender/ethnic type will inherently perform better in merit-based tasks? This circular thinking demonstrates my post above. (Do you teach, Kate?)

I think you need to trace it back much farther than that, starting with unequal environments (where you live, not who you live with), and unequal educational resources from the start.

Did anyone see "My Fair Lady"? A good teacher could help. A great teacher -- committed to excellence for those determined to achieve it -- could do wonderous things with those some believe to be naturally "lesser".
7.8.2006 12:04pm
ThirdCircuitLawyer (mail):
Just,

When you say "Rare, but oh so refreshing," do you mean "Rare, but oh so comforting"?
7.8.2006 12:05pm
ThirdCircuitLawyer (mail):
Just,

I don't follow your argument. Women get much higher average grades than men in college, and go to college at higher rates than men. Is your view that men just had worse environments growing up?
7.8.2006 12:11pm
Guest poster (mail):
Mr. Zywicki,

I hate to say it, but the more I think about it, the data points toward overt sexism in the Scalia and Kennedy chambers. Let's assume Rehnquist, Thomas, and Scalia are hiring from the same pool of very conservative people. 40% of Thomas's clerks and 28% of Rehnquist's clerks are women, but only 7% of Scalia's clerks are women. These differences are probably too big to be random. Thus, either Rehnquist or Thomas are practicing affirmative action for women (consciously or unconsciously), or Scalia is discriminating against women (consciously or unconsciously). Intuitively, knowing what we know about the Justices, which seems more likely? A similar analysis can be done with Kennedy.

As for the Harvard data, it is only from one year. In previous years, it was less lopsided, though still lopsided. In the class of 2005, the numbers were:
Total magna/law review: 19 men, 4 women
Clerking magna/law review: 15 men, 4 women
7.8.2006 12:19pm
Just:
No I mean: what is the job of the professor? They should take some responsibility for their work, if indeed one of the job requirements is to teach all of the students before them, and not just those whose ways are similar to the professor.

Third:
Grades are abitrary. Even in law school, but especially at those lower levels. Do you like the teacher?/Does the teacher like you? is often the question to ask when

Can you tell me the percentage of women as National Merit Scholars, extracurricular winners such as National Science Fairs? Or is that all genetic too? My life's observations tell me environment and expectations play a far greater role than many here are willing to admit. Why? Because it may just be you haven't come by your achievements as competitively as you would like to believe.

And I meant refreshing. Not a comfort woman myself. Perhaps you might understand better had you access to other perspectives. What was that Eddie Murphy/Dan Ackroyd "prince and pauper" movie called again?
7.8.2006 12:20pm
Just:
Grades are abitrary. Even in law school, but especially at those lower levels. Do you like the teacher?/Does the teacher like you? is often the question to ask when you are trying to figure out why you are not getting the material, yet do fine with another instructor.

You see, in teaching, it's not just dump and load. People thankfully have different styles of learning, and some blossom when their needs are being met, yet whither under a style foreign to them.
7.8.2006 12:23pm
Guest poster (mail):
Oops, that whould be
Total magna/law review: 20 men, 4 women
Clerking magna/law review: 16 men, 4 women
7.8.2006 12:26pm
Just:
And that's spelled wither and propagate, of course.
7.8.2006 12:26pm
Trevor Morrison (mail):
I agree with Todd Zywicki that the disparity cannot be explained on self-selection grounds. However, some of his empirical claims are a bit off. Consider:

1. Todd says that "SCOTUS clerks are more or less right out of law school." I guess that depends on how vague he means "more or less" to be, but in OT 2002, over 20 of the 35 clerks had worked for at least one year (and in several cases, three or more years) between their lower court and SCOTUS clerkships, many at law firms. And if memory serves, a majority of the women clerking that year had at least one year between clerkships.

2. Todd also says clerks are generally unmarried. Well, in OT 2002, at least 16 of the 35 clerks were married.

OT 2002 might by atypical in these two respects, but I don't think it's way outside the norm in recent years.
7.8.2006 12:26pm
Amber (www):
Guest poster, I'm not sure if you already knew about this data set, but here is a list of all the Supreme Court clerks of the United States. Upon reflection, I'm not sure it's fair to say that Thomas hires from the same pool as does Scalia; Thomas is well known for hiring from a wider range of schools and many of his woman clerks have come from places like Vandy, GW, BYU, etc. It looks like several of Rehnquist's woman clerks also came from schools outside the top six. Kennedy, like Scalia, seems to hire almost entirely from HYSCCN. The gap at those institutions may explain a large amount of the differential.
7.8.2006 12:41pm
Cal Lanier (mail) (www):
Did I miss the numbers of how many women apply for Supreme Court clerkships, and what is their acceptance rate? Because without that all important data, all this speculation is bogus.

If fewer women apply, then the various career-biases come into play. If men and women apply in equal numbers and more men are hired, then it could be bias or brains.

But without that data, who knows? Maybe the SCs snap up every woman who applies, and poor Scalia and Kennedy are perennially late to the gate in their hires.
7.8.2006 12:45pm
ThirdCircuitLawyer (mail):
Just,

I am still confused. You seem to be making two arguments. First, differences in grades are the result of systematic differences in early opportunities, and second, grades are arbitrary and have no meaning. Which is it? I don't understand how they can both be true.
7.8.2006 12:54pm
eric (mail):
Reading all the above posts, it would seems to me that, given the data presented by guest, and given that approximate 20% of highly qualified applicants being female, it would seems to be a more pertinent question as to why (or if) Stevens et al are overtly discriminating in favor of women?

Trying to achieve a fifty-fifty gender split would be silly at best, given the unique nature of the job. I agree that the proper method of finding the truth would be to look at the schools each justice perfers and then referring judges. I think this would explain the situation better. Scalia and Kennedy limit theirselves to certain schools, Thomas is willing to look at grads of lesser regarded schools, etc.

Still, 20% of the best Harvard grads are male, and Stevens hires well over 50% women?
7.8.2006 1:34pm
eric (mail):
Reading all the above posts, it would seems to me that, given the data presented by guest, and given that approximate 20% of highly qualified applicants being female, it would seems to be a more pertinent question as to why (or if) Stevens et al are overtly discriminating in favor of women?

Trying to achieve a fifty-fifty gender split would be silly at best, given the unique nature of the job. I agree that the proper method of finding the truth would be to look at the schools each justice perfers and then referring judges. I think this would explain the situation better. Scalia and Kennedy limit theirselves to certain schools, Thomas is willing to look at grads of lesser regarded schools, etc.

Still, 20% of the best Harvard grads are male, and Stevens hires well over 50% women?
7.8.2006 1:35pm
jimbino (mail):
It is interesting to compare the law with science, math and engineering with regard to the underrepresentation of women at the highest levels. Since exams, at least up to the PhD level, are much more objective in the hard sciences, there is little opportunity for a prof to favor a male over a female, yet there are numerous men for every woman at every level in the hard sciences, and even more at the highest levels, such as among the Nobelists. Rosalind Franklin and Lise Meitner were certainly disadvantaged, but even they came from a tiny feeder pool of women, especially in the case of Meitner.

I have the suspicion that, if law school exams were as objective as those in the sciences, women would likely make up around 5% of practicing lawyers, just as they make up less than 5% of practicing hard scientists in the USA, Britain and Germany.

The fact that almost all judges are unschooled in science and math probably helps to accord women the high representation they enjoy in clerkships.
7.8.2006 1:41pm
Amber (www):
eric, I think you need to consider ideology. While the vast majority of top grads are male, what percentage of the top female grads are conservative? At least some of the top male grads are righties who wouldn't fit into the Stevens chambers.
7.8.2006 2:15pm
elChato (mail):
Just today in the NYT, there's an article saying that women are blowing mens' doors off in college achievement, including in elite schools. I would like to see studies of the post-college path of this large majority of elite women- do they go to law school in lower percentages than men from the same institutions? How well do they do once they get in law school? What kind of jobs do they take post-law school, compared to men with comparable grades?
7.8.2006 2:33pm
bad username:
In law school, when one of our professors called on a man to answer a question, he would point to him and say, "Mr. So-and-So."

If he called on a woman, he would point to her and say, "Woman."

He also took to calling a particularly masculine-looking woman "Thesbian" despite the fact that she corrected him with her real name every single time.

And that was only a few years ago. In a major metropolitan city.

And yes, we (both men and women) complained and no, the school did nothing about it.
7.8.2006 2:34pm
Just:
"I am still confused. You seem to be making two arguments. First, differences in grades are the result of systematic differences in early opportunities, and second, grades are arbitrary and have no meaning. Which is it? I don't understand how they can both be true."

Sure it can. Come outside your upper middle class background for a bit of stroll in some real-life worlds:

Jane is a smart young teen in an average high school with average teachers just trying to get by. She intelligently questions the materials provided to her, which may be considered subpar (based on the teacher's liberal biases, for an example a lot of you are familiar with.) Teacher X does't like that, and thinks Jane is "challenging" her. She is rated poorly here and there by X, on the occassional essay if her answer does not "match up" with the teacher wanted to see. That's ok with Jane; she is learning, and perhaps growing beyond X.

Now compare Jane to John, who has the fortune to be educated in better places. His teachers looove that he wrestles with the (better chosen) material, asks questions of them, and considers points that perhaps they had not. They don't penalize him for this.

Later on, John tests better than Jane. On the PSAT, John scores as a National Merit Scholar. Both the early opportunities offered them, as well as the seemingly arbitrary way their grades were awarded, make John a better candidate to colleges and on up.

Is every teacher an X? Definitely not. Those who would use that as an excuse won't get far. Do X's exist? Certainly. Sometimes an X, in fact, is more bothered by the questioning coming from Jane, and not Scott who could ask the same thing. Perhaps X doesn't like "uppity" girls, or perhaps he does react the same whether it's Jane or Scott.

If you took Jane from the start, and gave her John's schooling, books and teachers, could she test better? Would her "arbitrary" grades be higher? Saying it's genetics dismisses too many real-life situations, and does not account, for example, for adopted children placed in homes with better educational opportunities.
7.8.2006 2:41pm
Just:
"Just today in the NYT, there's an article saying that women are blowing mens' doors off in college achievement, including in elite schools."

What does this mean? Better grades only?
What about those standardized tests? If those are more proportional, it may be window dressing.
7.8.2006 2:44pm
Marcus1 (mail) (www):
I almost hate to ask, but why is the Volokh Conspiracy 100% men? Has it ever been addressed? Is there a comparison?
7.8.2006 3:52pm
elChato (mail):
Just: according to the story, they are more likely to get degrees than men; get better grades; finish earlier; and get a disproportionate share of honors degrees. Interestingly despite the "outrage" that rained down on Larry Summers not too long ago, college administrators told the Times "in their experience men seem to cluster in a disproportionate share at both ends of the spectrum — students who are the most brilliantly creative, and students who cannot keep up."

I don't know what the spread is on male/female results on things like LSAT, MCAT, GRE, and what happens to grad school enrollment, success, and post-school careers. A topic worthy of study to be sure.
7.8.2006 4:10pm
UVAgirl:
I believe that Zywicki's initial post is largely correct. As a female graduate of a law school with a healthy number of SCt clerks, I would say that the gender difference cannot lie in the "women want to have babies" argument. In my experience, women who attend top schools with credentials allowing them to pursue a competitive clerkship are generally willing to delay starting families for a number of years in order to have a few years of academic and professional achievements. SCt clerks often aren't more than 3-4 years out of school, so the primary reason for the gender disparity cannot be that all of the top women are dropping out to have kids. Childbearing and childrearing issues are much more relevant to the discussion of women's underrepresentation in the upper levels of law firms and academia, but not in the clerkships.
7.8.2006 4:24pm
Guest poster (mail):
Due to an unfortunate mental lapse, the statistics for Breyer, Stevens, Thomas, Ginsburg, and Souter were off by a bit. Oops. Here are the correct statistics:

Justice Breyer: 13 men, 15 women
Justice Stevens: 16 men, 12 women
Justice Thomas: 16 men, 12 women
Justice Ginsburg: 16 men, 12 women
Justice O'Connor: 14 men, 10 women
Justice Souter: 18 men, 10 women
Chief Justice Rehnquist: 13 men, 5 women
Justice Kennedy: 25 men, 3 women
Justice Scalia: 26 men, 2 women
7.8.2006 4:45pm
Marcus1 (mail) (www):
Maybe Thomas isn't as elitist when it comes to statistics or baubles as Kennedy and/or Scalia. In that regard, didn't he say the whole problem with law admissions (re: affirmative action) is law schools' hyper-elitism? I'd guess he's more willing to look at other things than numbers than the other conservative guys, even if he doesn't think race/sex should themselves be a factor.

Does Scalia like people who are as abrasive as he is? That could have a disparate impact. Kennedy surprises me.

Mainly, though, my speculation is that it's about competitiveness and culture. I think testosterone makes people more competitive. And culture; well, there are lots of things. As Napoleon Dynamite said, women like a guy with skills. True or not, most men seem to feel that way. Meanwhile, even many feminists think men aren't looking for over-qualified women. Again, true or not, if that's the conventional wisdom, it must have an effect (probably well before people are applying to the Supreme Court).
7.8.2006 5:35pm
Amber (www):
UVAgirl, I was postulating a calculus something like this:

A female law student knows that she wants to have children by age 30. She also would like to maximize her pre-childbirth earnings. Should she work her tail off in law school to amass the credentials that would make her eligible for a Supreme Court clerkship which it's quite likely she won't get (the competition is fierce)? Clerking for the circuit court means a loss of income, despite the escalating clerkship bonuses, and also may mean deferring childbirth for a year if she is to attain her desired level of pre-baby earnings.

Alternatively, she can coast through law school, planning her wedding on theknot.com instead of taking notes in class (I saw a shocking number of women doing this), and still get a job at a top firm earning $135K right out of the box. This also means she can plan on living in the same place indefinitely post-graduation.

The choice to pursue a Supreme Court clerkship, unless you're incredibly confident in your own brilliance, is like buying a lottery ticket. Plenty of people clerk for the circuit court and make it no farther. Women are more risk averse than men.
7.8.2006 6:27pm
Rex:
You've spawned an interesting discussion, Amber, but to the extent you present the range of law school strategies as binary -- SCOTUS-gunner vs. everyone else -- I think it's too simplistic. I know plenty of people, women included, who work as hard as they reasonably can, fully recognizing that they have little chance at the feeder judge path.
7.8.2006 7:17pm
ThirdCircuitLawyer (mail):
Just,

I have no idea what you are saying. What was the point of your story about "John" and "Jane"? To be clear, I think the theory of "innate" differences is utter baloney. But I can't understand what your argument is. Oh well, maybe I never had a teacher who gave me that second chance.
7.8.2006 7:24pm
Kingsley Browne (mail):
Just asked:

"Kingsley: If the numbers indeed hold true at schools other than Harvard, do you have a theory as to why? Bell Curve? More males prepared to compete -- well versed at what it takes to establish the top credentials at those places?"

In almost all distributions of achievement, men are disproportionately represented at the extreme right tail (and left tail, as well, but for purposes of this discussion, we don't care about them). In other words, there is greater variability among males than among females.

Even in areas where the average female is better than the average male (think verbal ability, for example), the highest performers may be disproportionately male. This would imply that those who achieve top positions based on ability would tend to be disproportionately male if selection is sex neutral.

Consider also that high ability by itself is usually not sufficient for the achievement of top positions. High ability usually must be coupled with a single-minded determination to achieve (also a tendency exhibited more often among men).

Top law schools generally consist of high achievers who have demonstrated a certain amount of diligence. These people are drawn from a nationwide pool. Those at the very top of the class are a small subset of even this group -- i.e., the extreme right tail of the right tail of the distribution -- the elite of the elite. For the reasons mentioned in this and previous posts, it is not surprising if they tend to be disproportionately male.

At non-elite law schools, the calculus is more complicated. At many such schools, women outnumber men at the top. One major reason for this is that, as mentioned previously, women tend to be less mobile than men. Therefore, they may be more likely to go to a local law school even thought they have the credentials to go to a better school, because attending the better school would require relocation.

Just also wrote:

"Perhaps we need more of the current top players -- distinguished attorneys, former clerks, professors, judges, etc. -- to propogate daughters and give them this competitive advantage if we want to see more end-result equality?"

The cause of this situation is not that the "top players" are not having daughters; it is simply that their daughters are part of the female distribution, having developed in the hormonal milieu of a female.

Just also wrote:

"Grades are abitrary. Even in law school, but especially at those lower levels. Do you like the teacher?/Does the teacher like you?"

Remember that most grades in law school are awarded anonymously. Grades may be arbitrary in the sense that they measure only part of what goes in to making a good lawyer. They are not arbitrary in the sense that they are random. There are good exams and bad exams. Someone who graduates at the top of the class has written mostly good exams, and someone who graduates at the bottom has written mostly bad ones. There is some arbitrariness and subjectivity at the margins, but that plays only a small role in where someone is in the graduating class.

Just also wrote:

"Can you tell me the percentage of women as National Merit Scholars, extracurricular winners such as National Science Fairs? Or is that all genetic too?"

I don't know what the current distribution of National Merit Scholars is, but I know that it used to be disproportionately male. The awards were based on the PSAT until a federal court held that it was illegal to base them on the PSAT (or maybe to base them entirely on the PSAT, I don't remember) because it had a disparate impact on girls. So, the awards may be sex-normed now.

I don't know anything about the National Science Fair, but I do know that girls participate in science fairs at a higher rate than boys do (although boys are more likely to engage in science activities completely on their own).

Amber wrote:

"I'm not sure if you already knew about this data set, but here is a list of all the Supreme Court clerks of the United States."

That's actually a pretty incomplete list. For example, it lists only 26 clerks for Justice White's 30+ years on the Court, when the real number is something over 100.

elChato wrote:

"I don't know what the spread is on male/female results on things like LSAT, MCAT, GRE, and what happens to grad school enrollment, success, and post-school careers. A topic worthy of study to be sure."

I believe that on all of the standardized tests mentioned, males have higher average scores than females and greater variability, so there is a disproportion of males at the very highest level. Partly it depends on how great a ceiling effect exists for the particular test. The more people who obtain perfect scores on the test, for example, the more balanced the sex ratio will be. The sex ratio of perfect scorers on the SAT, for example, has become substantially less imbalanced after the "recentering" in the mid-90s.

One confounding factor on test results is that test designers often attempt to reduce or eliminate sex differences in performance.
7.8.2006 8:07pm
Kingsley Browne (mail):
ThirdCircuitLawyer wrote:

"I think the theory of "innate" differences is utter baloney."

I don't mean this to be insulting, as there's no particular reason that a lawyer should be familiar with the psychological literature, but I do not think that it is possible for a fair-minded person who is familiar with the vast literature on the subject of sex differences to hold that opinion.

For someone who would like an introduction to the literature, I would (of course) recommend my book "Biology at Work: Rethinking Sexual Equality," which deals with the effect of sex differences (many of them innate) in the workplace. I also published a relatively short piece on the Larry Summers issue: "Women in Science: Biological Factors Should not Be Ignored," 11 Cardozo Women's Law Journal 509-528 (2005).

More general treatments are Diane Halpern's "Sex Differences in Cognitive Ability," Doreen Kimura's "Sex and Cognition," David Geary's "Male, Female: The Evolution of Human Sex Differences," Linda Mealey's "Sex Differences: Developmental and Evolutionary Strategies," and Steven Rhoads's "Taking Sex Differences Seriously."

This is just the small tip of a large iceberg.
7.8.2006 8:28pm
Amber (www):
There's certainly a spectrum of strategies that can be pursued, but opting out early is one that I saw a fair number of intelligent women select. Maybe men drop out of the rat race in equal numbers and I was not in a position to be privy to it.

(Dropping out is of course relative; most of the people I'm referring to still tried to do relatively well and did not write off class altogether. There was a distinct gear-shift downward, though.)
7.8.2006 9:17pm
Marcus1 (mail) (www):
>There are good exams and bad exams. Someone who graduates at the top of the class has written mostly good exams, and someone who graduates at the bottom has written mostly bad ones. There is some arbitrariness and subjectivity at the margins, but that plays only a small role in where someone is in the graduating class. <

Well, that's not true. There's arbitrariness all over the place. The real point, though, is that to come out in the top 2 or 3, you clearly have to be very good at something. That's true even with a lot of arbitrariness throughout the masses. (Good players almost always lose in the world series of poker, but bad players never win).
7.8.2006 9:40pm
Cal Lanier (mail) (www):
Gender gap on standardized tests--on tests that have wrong answer penalties, high school boys do better almost across the board. This holds true for the SAT, as well as the Subject and AP tests. The gap holds relatively constant when you control for income, which largely addresses the problem with selection bias in the lower income levels, as boys in this demographic are less likely to take college admissions tests.

The ACT doesn't have a wrong answer penalty, and it is also issued to all students in two states (as opposed to just college bound), and over 90% of the population in two more states. The average scores vary because the states have very different racial demographics, and racial gaps dwarf gender gaps. But the relative gaps hold constant--girls outscore boys on grammar and writing skills by a wide margin and by a much narrower margin on the reading section. Boys outscore girls by a solid margin on math and science reasoning sections. Given that three of the four sections on the ACT involve intensive reading, it would appear that reading ability varies based on subject.

Males outscore females on math every time; females outperform males in writing consistently. Result: males on average do better on tests that are knowledge oriented, females do better on tests that are expression oriented--which raises the question of whether or not females get points for style, rather than ability. As a rule, women do better on anything involving subjective assessment in school (which explains their grades).
7.8.2006 9:46pm
Just:
"It is simply that their daughters are part of the female distribution, having developed in the hormonal milieu of a female"

Sorry, I just don't buy that it's a genetics/hormonal innate difference.

Expectations and resources devoted to daughters, even amongst the educated upper class, are more likely in my mind. Plus, the current system of childcare expectations/job mobility for spouses and risk aversion related to that, as Eugene notes in his follow-up. Still more daughters from the superachievers please, and set the bar just as high for them, with all the support you'd give your sons!! I don't want to see an 8-and-1 ratio all my life. And libertarian daughters, overall, would be such a blessing for the country. Besides, I'm sure there's some study that guys with sisters have an easier time with women. And don't you want the best for your sons???
7.8.2006 11:12pm
Brian G (mail) (www):
Wow. After all of this, I still don't know if the clerks were actually qualified and did good work. I only know that not enough of them fell within one of the favored groups, and that so many of the clerks are damned for being (oh the humanity!) white males.
7.8.2006 11:16pm
Just:
"I still don't know if the clerks were actually qualified and did good work."
Perhaps that would depend on your impression of recent court opinions, the quality of writing and degree of clarity.
7.9.2006 12:00am
PaulV (mail):
There may be a bit od self selection in sexual ratios for the various justices. Women would be more likely to apply with Breyers then with Kennedy and Scalito
7.9.2006 12:14am
Data point (mail):
This is a fascinating topic that I've thought a lot about. I will chime in anecdotally and say that, as a 179-LSAT-scoring, top-of-my-class, feeder-judge-clerking woman, I didn't pursue a Supreme Court clerkship because my husband wasn't mobile, and I know that the same is true for another woman in my class with similar credentials. It is probably also true that I am somewhat less ambitious than most men with my credentials, and never had the all-consuming desire to clerk on the Supreme Court that many of them did and do; if I had, I would no doubt have agreed to be separated from my husband for a year or pressured him to uproot himself.

But my own situation aside, here are a bunch of theories: 1) There is probably some Bell Curve effect, although I don't think it's all that significant; I've seen charts showing that men do better than women on the LSAT, but it's by a small amount and, most interestingly, not all that much more pronounced at the very highest scores, somewhat undercutting the morons-and-geniuses theory of male intelligence, at least in this context. 2) More women than men appear to be turned off by the ultracompetitive nature of law school, and thus are less concerned with pursuing the various brass rings it has to offer. It's interesting that many more women seem to succeed at Yale (a smaller and probably more nurturing environment) than Harvard. I can't present statistics, but it was my strong impression from reading clerkship applications and it's borne out by comparing the composition of editors from the Harvard Law Review to those of the Yale Law Journal. 3) High-achieving women are more likely to be liberal than high-achieving men, and thus less likely to apply to or click with conservative justices. (The relatively high proportion of female Thomas clerks can be explained by his lesser focus on elite credentials, which of course gives him a larger pool to choose from.) 4) Women are much less likely to forge the sort of relationships with powerful (usually male) professors that lead to glowing personal recommendations of the kind that get clerkships.
7.9.2006 1:04am
more broad groups of friends?:
Eugene,

I agree with all the points regarding children, mobility, etc, but I'd throw in one more.

I think the law students most likely to seek clerkships are those who most surround themselves with other lawyers/law students. The more you interact with people outside the law profession the less attractive clerkships may seem to you.

When I was considering whether or not to apply for clerkships I talked with my parents (neither of whom know much about the legal profession) about whether I would be able to borrow money temporarily if anything bad happened while clerking and they just looked at me funny and said "Why would you take this clerking job that pays so little over the well paying private firm job?"

Similarly, when hanging out with a few friends (both of whom have regular corporate non-law jobs) one asked if government lawyer jobs (like working at the Department of Justice) were for people who were at the bottom of the class.

So I think the more you interact with people outside the profession the more immune you become to mob mentality. And let's face it -- most people apply to clerkships because of mob mentality. And I think Amber is right that many who apply do it b/c they are risk positive (or I would add delusional about their chances of obtaining a Supreme Court clerkship.)
7.9.2006 3:01am
Dilan Esper (mail) (www):
I think the explanation is rather simple. The separation of powers precludes anyone from enforcing the Civil Rights laws or the Constitutional prohibition against sex discrimination against Supreme Court justices.

There is, after all, a reason why there was widespread sex discrimination before those laws were enofrced.
7.9.2006 3:35am
eric (mail):
Amber,

I think ideology would matter. However, it is hard to square the numbers based on ideology alone. Thomas had 40% female clerks. I would suspect female law students, soley from observation, to be more of the liberal tilt. That does make your point regarding Stevens (our data has changed, Souter now, which is in line with your ideology thesis). I think the ideology hypothesis is a helpful way to think about this issue. It makes some sense, but there are problems.

Assuming a female=left and male=right ideological divide, Thomas should have less females. Kennedy should be very balanced (whatever balance means here). Overall, after being given the number of women in Harvard's top twenty, I feel that the court as a whole has been very inclusive, even if Kennedy and Scalia have not been.

Who knows, maybe they just interview 90% men?
7.9.2006 4:04am
James Joyner (mail) (www):
Just: Is it your contention that women are more likely than men to have had bad teachers growing up? That strikes me as unlikely.
7.9.2006 9:46am
Frank Drackmann (mail):
Oddly enough, the sexist Islamic Republic of Iran graduates more women than men from medical school. Probably due to so many men going into the prestigious Religious profession which women are banned from entering.
7.9.2006 10:36am
Kingsley Browne (mail):
Just wrote:

"Sorry, I just don't buy that it's a genetics/hormonal innate difference. Expectations and resources devoted to daughters, even amongst the educated upper class, are more likely in my mind. Plus, the current system of childcare expectations/job mobility for spouses and risk aversion related to that, as Eugene notes in his follow-up."

You can't really separate the "genetics/hormonal innate" bit from things like childcare and risk aversion and even job mobility. If you give female fetuses an extra jolt of testosterone in the second trimester of pregnancy, you will see a lifelong difference in things like risk preference, desire for children, and other sex-typed behaviors.

As for the argument that "expectations and resources devoted to daughters, even amongst the educated upper class, are more likely" explanations, three points. First, that is an empirical question, and there's not much empirical support for it. After all, the supposed lower expectations and resources devoted to daughters don't prevent them from getting better grades than sons -- and from being a majority in colleges and universities for the last quarter century -- so why should they be responsible for fewer clerkships?

Second, it doesn't have to be one or the other. Both factors could simultaneously be playing a role. If they are, then even if the "social" factors were equalized, there still would be a disparity (just as there would be if the "biological" factors were equalized but the social factors weren't).

Finally, with all due respect, unless you have taken the time to look at the biological evidence, the fact that you "don't buy it" doesn't mean very much. There is a huge literature in psychology and biology on the effect of sex hormones on cognitive and temperamental traits. One can dislilke the findings of these studies without knowing much about them, as that's a matter of taste and preference. However, one cannot meaningfully disagree with the studies without taking the time to understand them. Again, I don't mean this in an insulting way, but, as the wise man (or woman) once said, "everyone is entitled to his own opinion but not to his own facts."
7.9.2006 12:03pm
Kingsley Browne (mail):
That's "dislike," of course.
7.9.2006 12:30pm
Just:

"You can't really separate the "genetics/hormonal innate" bit from things like childcare and risk aversion and even job mobility. "

Oh sure you can.
Not every woman marries and has children. Thus no childcare worries, more mobility, potentially more risk taking without lil ones to worry about.
Don't hold us all back with your generalities, Mr.Kingsley. It's not a testosterone superiority thang, no matter how much you would like to convince women they are "lesser" genetically.
7.9.2006 2:01pm
Just:
"Is it your contention that women are more likely than men to have had bad teachers growing up? "
Nope. You must have misread, whether intentionally or not. I do think expectations can differ for sons and daughters, and that it is possible to have more than one factor be at play, as per my example above.
7.9.2006 2:03pm
Ted Frank (www):
It's interesting that many more women seem to succeed at Yale (a smaller and probably more nurturing environment) than Harvard.

Another hypothesis consistent with this data point: If (and this is a big if) the number of top men in a cohort exceeds the number of top women by a substantial margin (say 200 to 125), and if Yale relatively accurately screens for top students while trying to maintain a 50-50 gender balance, and if students generally prefer Yale to Harvard, then a top female law student is much more likely to attend Yale than a top male law student is, and the schools beneath Yale will have gender disparities that Yale doesn't have, even though the cohort as a whole has gender disparities. This is a similar point to that which Sander made.
7.9.2006 2:04pm
Kingsley Browne (mail):
Just wrote:

"Not every woman marries and has children. Thus no childcare worries, more mobility, potentially more risk taking without lil ones to worry about. Don't hold us all back with your generalities, Mr.Kingsley."

The point is not what "every woman" does. We are already talking about "generalities": that is, not why no women get clerkships (or achieve other high positions) but why the sex ratio isn't exactly in balance. That necessarily requires consideration of group statistics (i.e., "generalities").

Every woman isn't shorter than every man; some women are taller than most men. But even if the NBA is willing to hire on a sex-blind basis (and I don't know if it is), it will still be overwhelmingly male. One could fairly say that the reason is that "men tend to be taller than women," without denying the fact that there is an overlap of height distributions.

Also, the implication that women without children are psychologically equivalent to men is simply wrong.
7.9.2006 2:19pm
Amber (www):
I don't know if comparing the "success" of women at Yale to that of Harvard women is particularly apt; the selectivity of the Harvard Law Review, for example, far exceeds that of the Yale Law Journal. The difference in grading scheme would likewise seem to make comparisons difficult.
7.9.2006 6:32pm
Proud to be a liberal :
The recent book Sorcerers' Apprentenices: 100 Years of Law Clerks at the United States Supreme Court By Artemus Ward and David L. Weiden has a chapter devoted to the issue of the selection of Supreme Court Justices. There clearly was at one time overt discrimination on the basis of sex and race. The book recounts the story of Ruth Bader Ginsburg, who was recommended by Harvard Law School to Justice Frankfurter, who decided not to hire her (according to the book) because she had a child at the time.
By 1998, 39% of the clerks at the Supreme Court were women. The increase in women was due to the hiring practices of specific justices. Thus, some justices hire 40-50% women, such as Justices Ginsburg, O'Connor, and Breyer, while Justice Rehnquist and Scalia hired few women.
As for applications, the book indicates that the current practice is for applicants to apply to all 9 justices.

If the reason for the disparate number of women is the reliance on feeder judges, then perhaps it would be useful to inquire into the hiring practices of the feeder justices and the criteria that they use. And who will replace Luttig as the most successful feeder?

And I would suggest that perhaps it is better for justices to think beyond Harvard and Yale Law Schools. There are many excellent attorneys who have gone to other law schools!
7.10.2006 1:36am
Girl Clerk (mail):
I'm a woman who went to a top law school and is currently clerking. I was a national merit scholar in high school, at the top of my class in college and law school. I moved across the country with my husband (who is also an attorney) to take this clerkship. My husband was willing to come, even though he had no job at the time. In law school, I nannied for the son of a woman who had clerked for Ginsberg and have had many excellent female and male mentors throughout my life. I briefly flirted with the idea of applying to be a Supreme Court law clerk after this gig, but ultimately decided that I'd rather go be a public defender and help clients, which is why I went to law school in the first place. Of my law school section, the only people to graduate magna were women. I haven't taken the time to look up the statistics on the whole class, but I think there's very little support for the notion that men are "smarter" than women, or even that they are more poised to apply successfully to powerful positions at this point in history. What I do think, though, is that women of my generation and education are taught and encouraged to think more creatively about their career options and what defines success and happiness for them than their male counterparts, who I think are largely still burdened by societal expectations that they be breadwinners. I remember that when I graduated from college, nearly all of my girlfriends had exciting plans to live abroad or spend a few years volunteering, while my guy friends were (with a few exceptions) headed straight to grad. school or to high paying jobs as consultants. It wasn't that my girlfriends and I couldn't also get those jobs--it was that we didn't want them and didn't perceive a need to have them. Could the same be true for SCOTUS clerkships and other "high echelon" jobs?
7.11.2006 6:04pm
Girl Clerk (mail):
Just re-read my entry and there are two errors: First, Justice Ginsburg's name. . .sorry for the misspelling! Second, only women in my law school section graduated summa cum laude--there were a few men that graduated magna. Sorry for the confusion. .that's what I get for quick typing and not taking the time to edit!
7.12.2006 1:20pm