Liberal Icon, Justice William Brennan, Would Not Hire Female Clerks

We’ve already blogged on the hand wringing from feminists about the fact that the number of female Supreme Court law clerks ticked down this year.

There is, of course, no evidence that this is anything but a normal statistical variation, akin to the fact that it might be a bit cool today, and then hot tomorrow.

One of the people complaining is Susan Estrich, feminist law school professor and campaign manager for Michael Dukakis in 1988.

Of course, she can’t think of any reason but discrimination for women being underrepresented, but in making that point, she drops a fascinating piece of information.

But there is also a long tradition of discrimination against women in selecting Supreme Court law clerks, which is why the decision of the Justices to leave the selections to chance, and hope that everything turns out alright, seems naïve at best. The absence of minority clerks has long been noted, and contributes to a continued absence of minorities at the top levels of the profession.

When I was applying, we used to hear “gossip” that certain judges and Justices wouldn’t hire women. The key to getting a clerkship, or one key anyway, is to clerk for the right “feeder judge;” certain judges regularly send clerks to the Supreme Court, although to some extent it’s a self-fulfilling prophecy because they tend to be the ones who get the students from the best law schools with the highest grades.

The best feeder in my day was the late, great J. Skelly Wright, the liberal hero of the D.C. Circuit, whose clerks always went straight to Justice William Brennan, the most liberal Justice on the Court. As a liberal, and as the president of the Harvard Law Review, that should have been my road.

But there was a catch. Sex. Mine. Judge Wright, according to my research, had had one woman clerk in about 30 years. Justice Brennan had maybe had one. Both of them had taken every single Harvard Law Review president who had ever applied to them without even holding an interview. Would they take me?

Judge Wright did. Justice Brennan wouldn’t. Nothing personal, Judge Wright explained to me on my first day of work, but I was going to have to find someone else to clerk for. Justice Brennan wasn’t going to hire me because I was a woman. That’s how it was.

Brennan, of course, was the sort of activist liberal justice whose votes were easy to predict. Whatever liberals wanted, he would insist was required by the Constitution.

But he wouldn’t hire women clerks.