August 30, 2006

NYTIMES TO WOMEN LAWYERS: YOU NEED TO GET AS SMART AS MEN

A few months ago, in a Horsefeathers piece about the foolishness of a NEW YORK TIMES article by Timothy O’Brien bemoaning an alleged paucity of women partners in “Big Law Firms”, I noted the irony that Mr. O’Brien, even while claiming that more feminization would benefit the “Big” firms, was suggesting that women would do better in such firms if they were more manly (that is, according to Mr. O’Brien, were more aggressive, more competitive, more ego-centric, more self-promoting, more grasping). Now the TIMES, in an article entitled “Women Suddenly Scarce Among Justices’ Clerks” (8/30/06) by Linda Greenhouse, reveals another manly attribute women should acquire in order to get ahead in the law: get smarter.

Ms. Greenhouse, the TIMES’ Supreme Court reporter, reports on a decline in number of women law clerks hired by Supreme Court Justices, pointing out that “women account for only 7 of the 37 law clerkships for the new term”, whereas “there were 16 women among the 43 law clerks hired by last term’s justices”. Although Ms. Greenhouse cannot resist implying a lurking discrimination somehow at work, the relevant non-speculative information in her article makes clear that unsuccessful women applicants for the new term’s clerkships simply did not have the “smarts” that the men did.

Thus, Justice Souter (certainly not one to discriminate), whose previous clerks were more than one-third women, did not hire any women for the new term because he “hired the top four applicants, who turned out to be men”. Justice Breyer, who did fill two of his four clerkships for the new term with women, nevertheless emphasized that he “choos[es] the best available candidates” and “makes no conscious effort” to hire women. And both Justices Souter and Breyer pointed out the likelihood that the drop in women law clerks reflected simply “a random variation in the applicant pool”.

The problem with women’s “smarts” is also evident from, as Ms. Greenhouse puts it, “the relative scarcity of female students among the top editors of the leading law schools’ law reviews – an important preclerkship credential”. Similarly, there is an “absence of women among the ‘feeder judges,’ the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks”.

Clearly, the smartest clerkship applicants for the new term – that is, the “top” or “best” ones – were predominantly men, to an even greater extent than in prior terms, and the new hires simply reflect that fact. If women want to change that dominance, they need to get as smart as the men.
---Arnold Roth