Clerical Errors

The secret handshake black lawyers don't learn.

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Some have accused Attorney General Eric Holder of pointing a scolding finger at white America in his recent Black History Month speech. But that's not what he did. The nation's top lawyer used the collective “we” to implore all Americans to begin the “awkward and painful” process of engaging one another across racial lines. In this regard, lawyers have a heightened duty.

Because the law is how we mediate our differences in this country, and because race has been at the heart of so much of what divides use, a meaningful, "awkward and painful" discussion on race must, by ncesssity, involve the legal profession and the process by which we resolve our disputes.

But the lack of diversity in the nation's judiciary makes such a conversation difficult at best and frightening at worst. Now, in a report issued last month by New York University’s Brennan Center, we have hard numbers to document the existence of whites-only benches in many states.

Still, one thing the report and the general discussion about the paucity of minority judges often overlook is the absence of color in judicial clerkships. Clerks are a quiet, hidden power in the justice system: typically recent law school graduates who work assisting judges in chambers and in the courtroom. But that year or two spent clerking is in effect the secret handshake that opens up access to the halls of judicial power for a lifetime.

The influence law clerks wield in chambers is perhaps imaginary, perhaps not. Most would never dare breach their sacred oath to let you know. In most instances, it is Supreme Court law clerks, not the justices themselves, who cull through the thousands of petitions to the court, sent by people of all ilk—from regular folks who want to be heard to corporate machines protecting their interests. Law clerks recommend that the justices grant certain petitions or deny others, dashing desperate hopes. These are the quietly powerful, seated on the justice’s shoulder whispering sweet everythings in the judge’s ear.

But like judges, law clerks are mostly white.

This is a travesty not just because clerking is a time-honored path to the halls of legal power. It’s also a missed opportunity for lawyers of color to repay the debt we owe to those on whose shoulders we stand, to heed Charles Hamilton Houston’s famous admonishment that, as lawyers, we not be parasites on society. Clerking is an important mainstream credential, a crucial start to a career of giving back.

The power of clerks has evolved over time. The first Supreme Court law clerk was hired in 1882, a mere 17 years after slavery was formally abolished, and bore the title legal secretary. Sixty-six years later, in 1948, the first black Supreme Court law clerk, William T. Coleman Jr., was hired. And nearly 20 years after that, Thurgood Marshall was sworn in as the first black justice on the Supreme Court. Since then, much progress has been made in every area of the legal profession, but blacks are still only 4 percent of all judges nationwide, less than 5 percent of all law firm associates and less than 2 percent of all law firm partners in the country.

In 2005, only 6 percent of all law clerks were black. In the federal courts, only 5 percent of law clerks were black, a decrease from previous years.

Judicial clerkships are a pipeline to the elite Power Hall of the legal profession, where judges, law firm partners, general counsels, federal government attorneys and law school professors converge. The more black law clerks, the more black attorneys who will eventually be granted entree to the upper echelons of the legal profession. That in turn means more black attorneys in positions to address some of the social ills facing the black community—warehousing of black boys in special education and in disciplinary “alternative schools”; disparities in crack cocaine and powder cocaine sentencing; testing of vaccinations in low-income communities.

As a law student at Harvard, I got lucky and fell into clerking because everyone around me was doing it. I did two clerkships—one state, one federal—in Indianapolis, my hometown. I won’t pretend that as a law clerk I was a forceful orator up in chambers confidently lobbying my judges and persuading them in determining sentences in every criminal case or in meting out damages in discrimination lawsuits. The truth is that I was so completely intimidated by the process, my jurists and the role that I was being asked to play that I was very nearly rendered silent by my fear.