Bench Memos

Law & the Courts

What Justice Ginsburg Can Learn from Justice Kavanaugh

In today’s Washington Post, Georgetown University law professor Paul Butler takes Justice Ruth Bader Ginsburg to task for her notoriously poor law clerk hiring record. Despite her status as a progressive icon, the Notorious RBG has anything-but a progressive record when it comes to the diversity of her law clerks. As Butler notes, “Ginsburg’s progressive jurisprudence on racial justice doesn’t show up in her own chambers.”

Interestingly enough, Justice Ginsburg’s newest colleague, Justice Brett Kavanaugh, has the most diverse law clerk hiring record of any justice, ever. Butler writes:

Kavanaugh has engaged in one of the most diverse hiring practices of any federal appellate judge. Of his 48 law clerks, a little more than 25 percent have been nonwhite. And as a justice, he has already hired one African American clerk.  She is one of only three blacks clerking on the Supreme Court this year — two of whom previously clerked for Kavanaugh on the Court of Appeals. . . .

Ginsburg, on the other hand, has hired only one African American law clerk in her 25 years on the Supreme Court. This is an improvement from her 13-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit, when Ginsburg never had any black clerks. When this issue was raised during her Supreme Court confirmation hearings in 1993, Ginsburg said: “If you confirm me for this job, my attractiveness to black candidates is going to improve.” This remains a promise unfulfilled. . . .

Kavanaugh’s clerkship listing should state “This employer practices diversity affirmative action. People of color strongly encouraged.” Ginsburg’s might as well say “I support racial diversity everywhere except in my chambers.”

Professor Butler is critical of Kavanaugh as well, suggesting that if Kavanaugh recognizes the value of diversity in his own hiring practices, he should be more supportive of affirmative action requirements and racial set-aside laws. Yet not every virtue should be a requirement, and there’s nothing hypocritical about refusing to force others to follow your lead. The same cannot be said about failing to live up to the standards you would impose upon others.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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