See full post by Alan Childress here. Below is a short excerpt:
David Kaye (Ariz. State, Law) and Joseph Gastwirth (GW, Arts & Sci. [Stats Dept.]) have just posted on SSRN Law & Soc’y: Legal Prof., their new article, “Where Have All the Women Gone? ‘Random Variation’ in the Supreme Court Clerkship Lottery.” Only 7 of 37 of this year’s Supreme Court law clerks are women, a drop nearing 50%, leading to a popular-media outcry. Justices Breyer and Souter have publicly defended the low numbers as the product of “random variation in the applicant pool,” but apparently did not convince many onlookers, some of whom assert “insidious discrimination” in the drop.
The authors test the claim using their experience with statistics (David Kaye, for instance, is one of the most respected statisticians in the law school world and coauthor of the book Prove It With Figures; and Gastwirth edited Statistical Science in the Courtroom). They conclude that the numbers are not improbable and within an expected range, given the applicant pool. [Elsewhere they have reported, similarly, that this year’s drop is not “statistically significant,” adding “that for all the raised eyebrows, the numbers are not so dramatic as to establish that this year’s decline is anything other than the ‘random variation’ asserted by Souter and Breyer.”] But this relatively clean bill of health only works, they note in the SSRN article, court-wide. Some individual Justices have numbers so low that it is hard to explain them by chance or fluctuations. …
I have to point out that the assumption that a gendered shift in the candidate pool, while it may partially absolve the justices themselves of charges of sexism, does not mean there’s no sexism problem here. It’s important not to minimize the influence on students’ options of the law schools at the institutional level. That is to say, a student’s clerkship options are necessarily limited by, for example, the professors who will write her recommendations, the school’s clerkship advisor, and the office of career services. A number of feeder judges hire off-schedule, and only a select very few students are even made aware of these opportunities. We can’t discount the possiblity that administrators and perhaps even some professors are affecting the ability of female students even to *apply*. Perhaps this is partly sour grapes due to the very negative experience I had applying for clerkships, but I’m inclined to think that law school administration often *is* sexist and this does make a difference where SCOTUS clerkships are concerned.
Not to mention a LOT of federal judges are sexist (I know this from my experience and from others’)… thus the pool of candidates may similarly be less female because appellate judges are deselecting women.
Again, though, this could be my personal experience bias… I went to arguably the most sexist top-ten law school we’ve got.
I think Childress and I both agree with you. Obviously I can’t speak for him, but if you read his full post, you’ll see that he expresses some of the same concerns that you do.
Scarily enough, your reference to “arguably the most sexist top-ten law school we’ve got” doesn’t narrow it down very much! Almost all of the “top schools” have few female faculty members, and cultures that can be hostile to female students.
Fair enough, Ann — and I guess I can’t really compare it to other top-ten schools, having only attended one :) Sadly, my law school memories include several male classmates who openly held the view that women didn’t “need” the right to vote. I recall a discussion within my first month as a 1L during which a male classmate complained in class to the professor (during a discussion on Title VII) that we needed to move onto issues “that really matter — like my pocketbook.” And I have it on good authority that at least one male classmate raped a fellow student. He graduated and is now a practicing member of the New York bar.
All of this happened at a top, private, *rich* law school. I’m baffled that people think the women’s rights movement is obsolete.
I like the vast majority of my students a whole lot, but I do see and hear things that worry me from time to time. The female students talk less, even though they are every bit as smart and hardworking as the men, and they leave practice in droves relatively soon after they graduate. Lots of mountains still to climb, no doubt.