Justice
Clarence Thomas recalled the reaction from “self-proclaimed smart
bloggers” when he looked beyond the
Ivy League to hire law clerks from Creighton, George Mason, George
Washington and Rutgers for the
Supreme Court term that started in 2008.
“They referred to my clerks last year as TTT — third-tier trash,” he told students at the University of Florida in February. “That’s the attitude that you’re up against.”
Justice Thomas’s hiring was certainly out of step with that of his colleagues. About half of the law clerks who have served the justices since Chief Justice John G. Roberts Jr. joined the court in 2005 attended two law schools — Harvard and Yale. Another quarter attended just four others — Virginia, Stanford, Chicago and Columbia.
In remarks to law students at American University Washington College of Law last year, Justice Antonin Scalia was unapologetic about this trend.
“By and large,” he said, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?”
Justice Thomas said he took a different approach. “I have a preference, actually, for non-Ivy League law clerks, simply because I think clerks should come from a wide range of backgrounds,” he said. “I don’t have that pedigree. I’m not part of this sort of new or faux nobility.”
Justice Thomas, who grew up poor in rural Georgia, attended Yale Law School, as did Justices Samuel A. Alito Jr. and Sonia Sotomayor. The other justices all attended Harvard Law School, though Justice Ruth Bader Ginsburg transferred to Columbia and graduated from there. Justice Ginsburg has said that she has chosen clerks based in part on recommendations from David Schizer, a former clerk of hers who is now dean of Columbia Law School, and from Justice Elena Kagan when she was dean of Harvard Law School.
For the term starting next month, Justice Thomas hired clerks from Duke, Texas, Virginia and Yale. All were ranked among the nation’s 15 best law schools by U.S. News & World Report.
Todd C. Peppers, who teaches public affairs at Roanoke College and is the author of a book about Supreme Court clerks, said the justices should work harder to broaden their hiring.
“This is the golden ticket,” Mr. Peppers said of a Supreme Court clerkship. “If you’re constantly handing out golden tickets to people from Harvard, Yale, Stanford and N.Y.U., you’re closing off these opportunities to 98 percent of the other law schools and law students. Why not give a nod to academic diversity?”