Take Representative Crenshaw question:
"there is a disproportionate share that come from either Harvard or Yale. . . . Is the reason for that because people from Harvard or Yale are more qualified to be Supreme Court justice clerks or do a disproportionate share of students from those schools apply? And is that something that you all think about when, the educational diversity aspect of being a clerk?"
Justice Thomas answered by pointing out that he hires from a broad pool, yet conceded that the pool is not terribly deep.
Somehow, that was a good enough answer for Mr. Crenshaw. But not, thankfully, for Barbara Lee. As she told the justices right off the bat, Rep. Crenshaw "asked her question," but she wanted a "broader answer." Her questioning begins around the 54-minute. You knew where this was going when she began to talk about the time when she arrived on Capitol Hill and how hard it was then for women and people of color. She conceded that improvements have been made, but not enough. She then asked the following question:
"I know that the courts want to strive to be representative of the American people in terms of their staffing and their law clerks. . . . Harvard and Yale are great law schools, they are excellent institutions. However, we know that there are few minorities attending these law schools.
And so I wanna find out if you have an actual concerted effort at identifying law clerks from Howard, or Texas Southern or even in terms of regional diversity, Boalt hall, out in California. How do you do this, and is there a way we can look at what these numbers are currently?"
In his response, Justice Thomas blamed the pool of clerks from the Court of Appeals. If this pool is not broad enough, diverse enough, then the hiring process at the Supreme Court will of necessity reflect this lack of diverse. For himself, he stated that he has a broad pool, in terms of law school diversity. He conceded that Blacks and "Hispanics" don’t show up on the pool from which he draws, but it is not up to the Court to increase that pool.
His bottom line? Diversity happens. Diverse candidates just “show up.” In the end, “you have to look at what’s in the pool.”
Representative Lee was not having any of it, and she told Justice Thomas exactly that:
“What’s in the pool has to do, unfortunately, with some of your decisions that really shut out people of color at these institutions. So if we go there, we could have a good, healthy discussion about some of your decisions.”
Of note, Justice Thomas did not have an answer.
To Justice Breyer, this conversation was "not as ‘in-date’ as you might think.” Within his time on the Court, he has seen sea-change" on this issue. As he talked, he ultimately hit the nail in the head: it is all about "networks and contacts." Justice Thomas later conceded that Rep. Lee had a "good point" and concurred with Justice Breyer; in his words, "a lot of our hiring depends on people we know." If this is true -- and I agree that it is -- then candidates of color have a built-in, structural disadvantage. Privilege just continues to reproduce itself. I wonder how the justices could possibly miss the connection.
Change will not happen on its own, in other words, and in this vein Ms. Lee's offered the following suggestion: The justices must try to expand the pool themselves, maybe by issuing an "edict" to the lower courts where it announces its desire for more minority clerks. "Somehow you need to communicate that that's what you'd like to see [a diverse pool], rather than just say we'll take who shows up."
Whatever you do, don't hold your breath.