Saturday, July 08, 2006

What does it take to be a Supreme Court clerk?

Eugene Volokh, who apparently is quite smart and who clerked on the Supreme Court, takes up the question of why women are underrepresented in the ranks of SCOTUS clerks:
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?
Volokh seems to be much more interested in hypotheses to explain why qualified women would be less likely to pursue Supreme Court clerkships than he is in hypotheses to explain why women are underrepresented in the ranks of those who are qualified. He only considers a couple of the latter, and both are a little to blunt to cut nicely.

It's a nice notion to think that law school exams test "innate intelligence," but I would hope that once the assumption is noted it starts to look suspect. Likewise with the other things -- apart from a willingness to relocate -- which go into building the sort of resume that sets you on the road to Capitol Hill. (In The Mismeasure Of Man, Stephen J. Gould examined this notion that there is a single, measurable quality of intelligence, another assumption that should start to look suspect once noted.)

Assume instead that law school exams measure how well you do at law school exams. If you had to prove that law schools have been designed to ensure that both genders are equally likely to do well, what would you point to? Not much. Whether it is law review editorial boards or the professors who design and grade courses, those who decide how to recognize performance have some commitment to the practices that put them where they are. You could call these discrimination, I suppose, but I suspect that Volokh meant something narrower and more conscious when he used the term. This commitment to tradition is not without its virtues, but would you expect law school traditions to advantage women?

Well, the building's very cold and I've heard the ladies rooms are no great shakes. I bet if the Supremes planted some flowers in front and put some potpourri in the bathrooms it would be a whole different story.
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