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Justice Brennan on Female Law Clerks and Justices



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In his Washington Post column today, David Broder speculates that Elena Kagan’s “joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.”  He bases his speculation on extrapolating from how the increasing numbers of female reporters and editors changed the Post’s newsroom in the 1970s and 1980s.  I question whether his extrapolation makes sense.  Among other things, parodies aside, it’s difficult to see how the internal culture of the Supreme Court today has much in common with the culture of the 1960s press corps, and all of the male justices have long been accustomed to deal with women as peers.

Broder’s speculation, however, provides a good opportunity for me to highlight one of the many surprising accounts in Seth Stern’s and Stephen Wermiel’s forthcoming biography of Justice Brennan (titled Justice Brennan:  Liberal Champion), which I have read in advance copy.  (See my recent post about Brennan’s disappointment with Justice Thurgood Marshall’s performance on the Court.)  Stern and Wermiel discuss at some length Brennan’s longtime opposition to hiring female law clerks and, more briefly but perhaps even more remarkably, his unwillingness to have a woman justice as a colleague.  Here’s one striking passage (p. 388 (emphasis added)):

Brennan confided to his clerks over coffee during the 1968-69 term that he worried about having to watch what he said if a woman clerk worked in his chambers.  He did not feel he could have the same sort of relaxed rapport with a female clerk or colleague.  If a woman ever got nominated to the Court, Brennan predicted, he might have to resign.  “It’s a strange kind of sexism,” his friend Abner Mikva later observed.  “He had [women] on such a pedestal he couldn’t have their ears sullied by four-letter words.”

Stern and Wermiel recount the effort in 1970 by two of Brennan’s former law clerks, then professors at Berkeley, to have Brennan interview their prize student, Alison Grey, who had been first in her class:

[W]hen one of the professors called Brennan to offer their recommendation, he did not get much beyond saying Grey’s first name before Brennan cut him off.  “Send me someone else,” Brennan said, making it perfectly clear that he meant a male clerk.  [p. 386]

Similarly:

When Yale Law School dean Louis Pollak wrote him in September 1966 to say that he would begin looking for “the appropriate young man (or woman)” as his clerk, Brennan replied, “While I am for equal rights for women, I think my prejudices are still for the male.”  [pp. 386-387]

In late 1973, one of the Berkeley law professors again recommended a top-ranked female student, Marsha Berzon (now a Ninth Circuit judge):

As with Grey, Brennan rejected Berzon on the basis of her gender alone.  Without offering any explanation, he once again requested [that the professor] recommend a male candidate instead.  [p. 399]

This time, though, the professor persisted, writing to Brennan about (in Stern’s and Wermiel’s paraphrase) “how at odds Brennan’s policy was with his own principles.”  Brennan changed course and hired Berzon.  [pp. 400-401]  Nonetheless:

However smoothly Berzon’s clerkship might have gone, another seven terms would pass before he hired another woman clerk.  Brennan later blamed that on a lack of female candidates being recommended to him.  “Believe me, it ain’t for gender-discrimination reasons,” he insisted.  [p. 406]

Stern and Wermiel also find that Brennan compared poorly to many of his colleagues on this score:

It took Brennan longer to wake up than many of his colleagues.  Between 1973 and 1980, thirty-four women served as Supreme Court clerks.  Brennan employed just one of them.  [p. 406]



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