Cite-Checking and Drinking

Dahlia Lithwick, writing in Slate, questions the reasons that the Supreme Court has 7 women clerks among 50. Some - apparently including her editor - think this article shouldn't even be taken seriously. Her editor entitles the article, "Is there a major girl crisis...?" A girl crisis? Yikes.

I'll give her the respect of a reasoned reply, though perhaps vaguely implying, like the editor, that Lithwick is a whiny girl is a better tack. Two major problems are evident to me in Lithwick's arguments. First she argues that even if the four best applicants are men, there are probably women a little bit further down the line who could do the job just as well; it isn't, in her mind, such a difficult job. Then she argues that a lot of the lack of diversity comes from the personal preferences of the justices, implying that bias plays a role.

She may be correct, but if she is the justices, and not her, show internal cohesion in their thought process. Viz., "It doesn't matter which of the top ten applicants I take, so I'll take the four who I relate best to." This goes right along with her dubious claim that,

The real problem here, of course, is that there is just no way to measure what makes for "better" clerks.

Of course.

She then proceeds and makes her case entirely based on the unfounded, unquoted, entirely personal opinion that there isn't really any difference among the top tier of achievers. Yet, looking at any quantifiable field of human achievement (e.g. sports, earnings, warfare) and we find that the top of the field has a great deal of spread, whereas a great many competitors are lumped together at the middle.

Just fifty clerks are selected for the Supreme Court out of a pool of top applicants from several law schools and several feeder courts. This is roughly analogous to the All-Star game in baseball. What she is arguing is that if you replace one "major-league" clerk with another, the team will be essentially the same. So, throw in Coco Crisp instead of Manny Ramirez and you've got the same team.

Going behind even this blind assumption, we have a more fundamental one: the idea of right. The case has been made that people of different races, genders, etc., should have equal right to the principal opportunities in our nation. But the extension of this right to highly privileged, highly coveted positions does not follow. It has been shown that women can be Supreme Court clerks, and in fact it seems that justices pay a social penalty by selecting the best clerks instead of the most politically correct ones. But until it's shown that top-ranked women with great resumes are routinely passed over for lesser-qualified men, the accusation of bias is a specious, shameless grab for prestige by people who have not earned it.