COLUMN: Hiring quotas: simply wrong

From Mark Fiore's, "The Right Stuff," Fall '99 From Mark Fiore's, "The Right Stuff," Fall '99The NAACP kicked off the fall with a bang, lobbing volleys at Hollywood for not showcasing minorities in the fall television lineup. Law clerks, typically recent graduates of the nation's top law schools, wield wide influence in the Court's operations, from helping justices determine which cases to review to writing the first drafts of most opinions. To the NAACP's mind, the Court's justices have deliberately turned their backs on minorities seeking the prestigious jobs. Mfume cites figures indicating that only one-quarter of the roughly 450 clerks hired by the Court's current justices were women -- and only a handful have been minorities. Admittedly, the statistics are not in line with national demographics. But the Supreme Court is not to blame. The Court, after all, is only playing the hand it has been dealt. Given the intense competition involved in receiving a Supreme Court clerkship, the applicant pool for the positions largely comes from only the nation's top law schools -- places like Penn and Harvard and Chicago. And students at such schools are predominantly white, despite aggressive affirmative action policies that place extra weight on minority applicants. At the University of Chicago Law School, a major source of Court clerks, only about 4 percent of the students are black. Penn Law has a slightly better minority population, but likely still not sufficient to satisfy the NAACP's demands. Justice Clarence Thomas noted the Court's dilemma while testifying before a congressional subcommittee this spring. Emphasizing that the Court does not recruit candidates, Thomas said the justices can only choose from the applications they receive. That's not enough, according to Mfume, who has twice unsuccessfully demanded to meet with the justices and was arrested last fall during a protest of the Court's hiring practices. "If the Supreme Court, the nation's highest court, was a private company, it would be guilty of discrimination," Mfume said in last week's statement. "The Court has the responsibility to interpret the nation's equal employment laws, and those laws should apply to the Court itself. "The Court's hiring record is shameful." Mfume apparently does not realize that despite the Court's limited applicant pool, the justices do make an effort to select qualified under-represented clerks. Sandra Day O'Connor, one of only two female justices on the Court, has made a point of hiring a greater number of female clerks than other justices. And Thomas, the Court's only black justice, often seeks clerks from modest or underprivileged backgrounds. That may not solve the problem, but Mfume is kidding himself to think the Supreme Court would suddenly buck the wave of appropriate national skepticism toward affirmative action. Indeed, the current Court, under Chief Justice William Rehnquist, has struck down and limited the scope of several laws and practices aimed at putting priority on minority candidates in various endeavors. Such practices are often unconstitutional, the Court has roundly held. Yet Mfume is not giving up. Though the NAACP says it is not calling for quotas, just equal opportunity, the organization's claims rely heavily -- and suspiciously -- on numerical calculations. The NAACP is keen on listing figures, for example, revealing that less than 5 percent of Supreme Court clerks in recent years have been Asian American. If 5 percent is too small, what percent is appropriate? What quota would satisfy Mfume? And why should the color of an applicant's skin be considered in the first place when course grades, recommendations and similar measures are the only true indicators of a candidate's qualifications? But according to the NAACP, those qualifications are apparently secondary to race. And that means that it is the NAACP -- and not the Supreme Court -- that is supporting discrimination.