Ms. Geek Speaks: RBG, Law Clerks and Dissing on Diversity

CNN. Saul Loeb/AFP/Getty Images

Following Ruth Bader Ginsburg’s death, I read a few tweets that all seemed to be pointedly based on one article. After I read the article, I was enraged enough to do an afternoon worth of internet only research. If I was getting paid, I’d have done phone calls, but this is a blog and the people I would be calling would be busy, not the least because they were likely in Washington DC for a funeral. It was a photo of these people, former law clerks who served RBG, that inspired the dissing on diversity of the late Supreme Court Justice.

The photo that attracted so many negative comments was a variation on a theme–I read them under CNN and the New York Times tweets. Commenting on the photo by Doug Mills for The New York Times, Miller  Kimball  asked,  “Please  tell  me  they  did  not  put  the  one  non-white  person  at  the  back.”

Others chimed in. “Let’s play spot the POC.”

Some more clearly stated what their diversity checkpoint was. 

“But he makes a great point! She’s a ‘liberal’ judge and couldn’t find one black law clerk to hire. I know plenty of good black qualified lawyers. That is a shame! I thought liberals were about true diversity. It’s just lip service to Black Americans. No black agenda no vote.” This is said with seemingly no irony because true diversity is not just about Black Americans. 

Others had more information. “One Black person. Out of well over a hundred clerks she hired. Ruth was absolutely a stone racist. There is the Black clerk she hired.”









USA Today and Racism

Another tweet showed what may be the source of this information. According to the article, “Though half of liberal Justice Ruth Bader Ginsburg’s clerks have been women, she has hired only one black law clerk since joining the court in 1993.”

Using Google, I used the quote to search for the article. The article, “Supreme Court clerks are overwhelmingly white and male. Just like 20 years ago” was written by Tony Mauro, an opinion columnist, and wasn’t about Ruth Bader Ginsburg specifically. Published on 8 January 2018 in USA Today, the article  summed up: “These powerful positions are tickets to top-tier legal careers. I didn’t find many minorities or women in my first analysis. They’re still rare today.”

USA Today is, according to Media Bias Fact Check, a left-center bias publication with a high rating in factual reporting. Tony Mauro is identified by USA Today as  “a member of USA TODAY’s Board of Contributors, is Supreme Court correspondent for The National Law Journal and the Supreme Court Brief newsletter.” 

In the article, Mauro notes: 

The research showed that those prestigious one-year clerkships, a golden ticket to a top-tier legal career, were going overwhelmingly to white males. Fewer than 2% were African-Americans, 1% were Hispanic, and only a quarter were women.

If you are Asian, Asian American or even have ethnic Asian friends, then once you read the article, you should have been enraged and engaged, too. If not, then you have to check your Black and White bias. Diversity is something #BeyondBlackAndWhite and to really judge diversity one needs to look at #RaceBeyondBinary. So already, we have a problem.

The Demographics

Looking at students in American law schools in 2019, 62 percent were White, 12.7 percent are Latino, 7.8 percent were Black, 6.3 percent were Asian and 4 percent were biracial or multiracial.  However, the American Bar Association reported that in 2018, 85 percent of the attorney identify as White or Caucasian, 5 percent as African American, 5 percent as Latino, 3 percent as Asian, 1 percent as Native American and 1 percent as multiracial. This would mean that as the demographics of lawyers does not reflect the population demographics of race and ethnicity (where Latino/Hispanic are 15 percent, African Americans are 13 percent, Asian Americans are 6 percent and Native Americans are 1 percent), we cannot expect the race/ethnicity of the law clerks  for the Supreme Court justices to reflect the general population ratios. At best, we could expect them diversity to be 5 percent African American and 5 percent Latino/Hispanic, 3 percent Asian and 1 percent Native American. Native Americans are the only statistic where the general population and the percentage of lawyers are the same. Latinos/Hispanic would be more underrepresented than African Americans. 

And yet there is another problem. Notice that in the tweets the word “Black” is used. Black doesn’t necessarily mean African American. Black can also mean Asian because, after all, Little Black Sambo was an Asian Indian. 

As I noted, in my Tweet, the USA Today article only mentions Hispanic twice. Here is the second mention: 

We found that since 2005, 85% of all Supreme Court law clerks have been white. The percentage of African-Americans and Hispanics has increased at a glacial pace. Women comprise a third of the clerks instead of a fourth, even though more than half of law students now are female.

African Americans are mentioned three times. Black is mentioned twice, once in reference to the late Thurgood Marshall. Native American is mentioned twice. At the time there was not one known law clerk who was Native American. (Later that year, Tobi Young was announced to be the first Native American law clerk. She was a clerk for Supreme Court Justice Neil Gorsuch during the 2018-19 term. If you think you can discern visually who is white and who is a white-passing, you need to look at Tobi Young.) 

Asian is not mentioned once in the whole article. 

Diversity and RBG

RBG has repeatedly said that when she applied for work, “I had three strikes against me: I was Jewish, second I was female, and the killer was, I was a mother.”

Now, it is easy for me to determine which law clerks were female. It is not easy for me to know which ones were mothers. So that’s one aspect of diversity that I did not include. I can guess which of the law clerks were Jewish, which I did. 

Of 119 names, 40 where White Male, 50 were women. Five of those women were Asian American (Z. Payvand Ahdout, Dorothy H. Tran, Katherine H. Ku, Sue-un Ahn (Kitcher) and Devi M. Rao). In all, about 12 of RBG’s law clerks were Asian American (Michael Li-Ming Wong, Goodwin Liu, Katherine H. Ku, Dorothy H. Tran, Ryan Park, Hajin Kim, Subash S. Iyer, Michael Frank Qian, Sue-Yun Ahn (Kitcher), Arun Subramanian, Aziz Z. Huq and Devi M. Rao). 

In 2015, Park wrote “What Ruth Bader Ginsburg Taught Me About Being a Stay-at-Home Dad” for The Atlantic. 

It’s easy to assume that celebrated figures like the Boss possess superhuman levels of discipline. But an insight one gains working at a place like the Supreme Court is that we all face similar constraints on our time, energy, and intellectual bandwidth. During my year at the Court, I sought to understand how the Boss managed to successfully balance her family and career. She shared many tactical pointers, offering her views on the virtues of au pairs over other forms of childcare, the advantages of having an extended period between children (an extra pair of hands and eyes with number two!), and the art of recognizing and cultivating a child’s interests and talents. But the most important and enduring advice she gave was the most seemingly banal: “be a good partner” and “take breaks.” Her husband Marty, as she’ll tell anyone, supported her career wholeheartedly and firmly implanted himself in the kitchen.

So RBG also provided training for being an anomaly–stay-at-home dad. With such a high profile article, it is hard to see how the writer missed Asian Americans.

I’m guessing that Lori Alvino (McGill) and Marco P. Basile could be Latino/Hispanic, going on their surnames alone. Seventeen of the law clerks, I would guess are Jewish–either because of the surname or because I found a marriage announcement that mentioned a rabbi. However, surnames aren’t always reliable.  Isaac J. Lidsky is Jewish and his parents immigrated from Cuba. He is known to be the first blind person to serve as a law clerk for the US Supreme Court (2008 for both Sandra Day and RBG).  So there is one person who was definitely Latino who was an RBG law clerk. 

At least one could be Muslim (Aziz Z. Huq). I’m guessing based on his experience with Muslim Advocates and the ACLU of Illinois as part of the cooperating counsel (2012 to present).  Because Huq also served as a consultant senior analyst for the South Asia Department (Nepal and Pakistan) I would also guess that Huq could be considered Black in England. By the same reasoning, Arun Subramanian and Devi Rao could also be considered Black. 

Also, because of a wedding announcement on 7 Sept. 2014 in The New York Times, I know that Daniel Adam Rubens is gay and he was married by RBG to Daniel Alan Grossman. 

From my afternoon of searching, I found that while UCLA graduate Paul J. Watford may be the only African American law clerk who served under RBG, he was not the only law clerk who could be considered Black. He was not the only POC either if one is to include Latinos/Hispanics and Asian Americans. After reading the USA Today article, people came away with the idea that the law clerks who served under RBG lacked diversity.  Because of the emphasis on Black inclusion to show diversity, the writer pointed out that RBG had only one African American clerk and completely ignored Asian Americans and Latinos. And in the swirl of events to honor RBG, that one African American law clerk out of over a hundred was used to disparage a woman unfairly.  


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