Guest Blogger Seth Stern: Justice Brennan’s Woman Problem

In the month since the publication of the biography of Justice William J. Brennan Jr. I co-authored, no passage has attracted more attention than our account of his refusal to hire female clerks.

It probably shouldn’t have come as a surprise that conservatives hungry for evidence of liberal hypocrisy would enjoy learning that this champion of women’s rights didn’t want any serving in his own chambers.

The idea that Brennan refused to hire female clerks isn’t entirely new. Rumors had circulated at the time and were even referenced in a 1976 law review article.

Susan Estrich took Brennan to task in a 2006 online column.  And Todd Peppers interviewed the first woman Brennan had refused to hire for his book on Supreme Court clerks hired that same year. That rejected clerk, Alison Grey, went onto a distinguished career as a law professor at UCLA.

But my co-author Steve Wermiel and I detail the full extent of his discomfort for the first time in Justice Brennan: Liberal Champion. He confessed to clerks in the 1960s that he might have to resign should a woman ever join the Court.

We reveal what finally prompted Brennan to hire his first female clerk in 1974. It was a remarkably blunt letter from Stephen Barnett, his former clerk who had suggested both Grey and a second female nominee rejected by Brennan on the basis of gender alone.

Barnett warned Brennan that “your blanket refusal to accept a woman clerk is not just ‘sexist,’ and not just contrary to government policy; it seems to me that it is literally unconstitutional, under the decisions” he had joined or written himself.

Barnett, who was then teaching at the University of California, Berkeley, predicted that “it is only a matter of time” before someone brought a lawsuit against a Supreme Court justice alleging discrimination in clerk selection. “You would be a prime target for such an attack,” Barnett warned before adding that, if subpoenaed, he would have to tell the truth.

Brennan relented after reading that letter and agreed to hire Marsha Berzon, who is now a judge on the U.S. Court of Appeals for the 9^th Circuit.

I confess we couldn’t entirely explain the profound disconnect between Brennan’s judicial opinions and his attitude toward women inside his chambers. But it wasn’t the only example of him adopting positions contrary to his personal views.

He signed onto Roe v. Wade after helping lay the groundwork for it in prior privacy decisions even though he privately admitted to Steve that he was uncomfortable personally with abortions.

What is certainly unconvincing is the explanation he offered to Steve during the course of their 60 hours of interviews together. Brennan blamed it on a pipeline problem, suggesting there simply weren’t enough female candidates being recommended to him. “Believe me, it ain’t for gender discrimination reasons,” Brennan insisted.

In 2008, Steve and I had a chance to ask Justice Ruth Bader Ginsburg what she thought about Brennan’s discomfort about female clerks.

A letter we found in her papers at the Library of Congress from her tenure at the ACLU’s Women’s Rights Project suggests that she was made aware at the time of Brennan’s refusal to hire women. Ginsburg said she didn’t remember reading that letter but wasn’t at all surprised by Brennan’s attitude and wouldn’t have held it against him anyway.

“He was a man brought up in a certain age,” Ginsburg said during an interview in her chambers.  It reminded Ginsburg of her own experience after law school when so few judges wanted to hire her as a clerk. Brennan, like so many men of his generation, “had to wake up.”

Brennan took longer to wake up than many of his colleagues. Between 1973 and 1980, 34 women served as Supreme Court clerks. Brennan employed just one of them. After Berzon left his chambers, another seven years would pass before Brennan hired his second female clerk. That clerk – Mary Mikva – was the daughter of one of his closest friends, Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit.

Mikva arrived in his chambers the same term as Sandra Day O’Connor joined the Court as the first female justice. Brennan’s difficulty in adjusting to the presence of a female colleague contributed to the rocky relationship he had with O’Connor during their nine terms together on the Court.

I’ve wondered ever since we interviewed Ginsburg almost three years ago whether two subsequent generations of feminist lawyers would be as forgiving towards Brennan. Was Brennan merely a product of a different era? Or is the commenter who called Brennan’s actions “blatant hypocrisy” after reading the Washington Post’s review of our book correct?

-Seth Stern

Seth Stern is the co-author (with Steve Wermiel) of Justice Brennan: Liberal Champion (Houghton Mifflin Harcourt 2010).  Mr. Stern is a legal journalist and graduate of Harvard Law School. He welcomes comments at seth@justicebrennan.com.  Mr. Stern’s co-author, Stephen Wermiel, is a Fellow in Law and Government and associate director of the Summer Institute on Law and Government at American University Washington College of Law.