In my previous post, I recounted my discovery of the incendiary positions that Ruth Bader Ginsburg had taken in a very long paper that she wrote in 1974. Another item that caught my eye as I read through her Senate questionnaire response was her answer to the very last question in the questionnaire:
So Ginsburg, in her thirteen years as a D.C. Circuit judge, had never hired a single black person as a law clerk, a secretary, or an intern. Plus, she seemed to be trying to obscure that fact. The question specifically directed Ginsburg to “State separately the numbers … of (1) women, (2) blacks, (3) members of other racial minority groups, whom you so employed.” Ginsburg should have stated outright that she had had zero black employees: “(2) 0.” Instead, she left it to the attentive reader to discern that fact.
To be clear, I had zero basis to suspect that Ginsburg had discriminated on the basis of race in her hiring decisions. On the contrary, on the very plausible assumption that Ginsburg had not discriminated on the basis of race, what interested me most about her record was that it starkly illustrated the elementary reality that merit-based selection can yield results that reflect what some would condemn as a “manifest imbalance” with the demographics of the local population. That’s especially true, of course, for her record on law clerks, whom she selected from among the most outstanding students at top law schools around the country.
What’s more, the gauzy concept of the “inexorable zero” had begun floating around in employment-discrimination cases not long before then. According to that concept, the fact that an employer had, say, zero employees of a particular minority in a job position could freely give rise to an inference or presumption that the employer had engaged in racial discrimination. Ginsburg’s own “inexorable zero” could reveal the flaws in that concept.
So I drafted a question for Senator Hatch to ask Ginsburg at her hearing that read like this:
Suppose a small business in a city that was majority black had never hired a black person, even though that business in over a decade had hired more than fifty people. Would such statistics standing alone, in your view, justify an inference of racial discrimination by the employer?
Whatever Ginsburg’s answer would be, the follow-up that I drafted for Hatch proceeded to explain that these statistics reflected her own hiring record.
On the morning of July 20, 1993, about thirty minutes before Ginsburg’s hearing was set to begin, Hatch’s senior lawyer on the committee and I met with him to go over the questions we had drafted for him. We told Hatch about Ginsburg’s hiring record and directed him to the hypothetical question. As he read it, a look of deep concern crossed his face.
“What if she says yes?,” he worried.
That’s right: Rather than welcome the prospect that a “yes” answer from Ginsburg would help to expose the folly of the “inexorable zero” concept, Hatch was so committed to Ginsburg’s smooth confirmation that he was concerned that Ginsburg would inadvertently impugn herself as racist.
My colleague quickly assured Hatch that Ginsburg wouldn’t say yes. Thinking to myself “Of course she will,” I bit my tongue.
* * *
Some hours later, after opening statements by all eighteen Judiciary Committee members and by Ruth Bader Ginsburg herself, the first round of questioning began. When Chairman Joe Biden was done with his speechifying questions (he opened with a 547-word question and followed with one nearly 900 words long and yet another of 700 words), it was Orrin Hatch’s turn.
After some questions on other matters, Hatch presented the hypothetical question that disguised Ginsburg’s own hiring record. Unfortunately, he was so eager to move past the hypothetical that he crammed a lot of questions together:
Suppose a small business in a [major] city that was majority black had never hired a black person, even though that business in over a decade had hired more than 50 people. Further, suppose that a disappointed black job applicant filed a discrimination suit and that she or he was unable to provide any direct evidence of intentional discrimination by the employer. Would such statistics standing alone, in your view, justify an inference of racial discrimination by the employer? And would that employer, in your view, to avoid an expensive and protracted lawsuit that could cost hundreds of thousands of dollars, be justified in using quotas or other forms of racial preferences to eliminate the manifest imbalance, if that really is the law? And just one other question: Would a Federal court be justified in such a case, in ordering that employer to resort to quotas or other forms of racial preferences, to eliminate or reduce the manifest imbalance? [Video clip 1:22-2:22.]
(The hearing transcript (pp. 130-132) differs in countless small ways from the embedded video clip. Except in one instance that I have corrected—substituting “major city” for “majority city”—the differences don’t affect the meaning, and I have thought it best not to tinker with the transcript.)
Drawing on her own experience applying for jobs in law school, Ginsburg responded by raising the concern of “unconscious bias,” a concern that she said was present “[w]henever a subjective test is involved.” She added:
If you are a member of the group that has up until now been left out, you wonder whether the person conducting the interview finds you unfamiliar, finds himself slightly uncomfortable, thinking about you being part of a workplace that up until then has been, say, all-white or all-male. [Video clip 7:04-7:38.]
So Ginsburg was unwittingly implying that her own “inexorable zero” for black employees might be the result of her unconscious racial bias.
Ginsburg diverted the discussion to an earlier topic. I scribbled an urgent note to Hatch: “You have to do the follow-up!”
Hatch wound his way back to the hypothetical but was like a pilot afraid to land his plane: “Well, the reason I gave you the hypothetical example I did”—here we go!—”is because I have had a lot of experience with small business people who are suffering the stings of these employment discrimination cases.” Ugh, the plane circles the airport.
I scribbled another note to him, and the pilot again approached the runway: “But I gave you that example I did”—land it!—“because I have great faith in you.” Arrgghh. Hatch continued:
I have known you since 1980, and I have watched what you have done, I have admired you, I have no doubt that you are a person of total equality and a person who deserves to be on the Supreme Court.
Only after heaping all that praise on her was Hatch finally willing to deliver the follow-up:
But in response to the Judiciary Committee questionnaire, in the 13 years since you went on the bench in 1980, you have not had a single black law clerk or secretary or intern, out of 57 such employees that you have hired. Now, I find no fault with that, because I know that there was no desire to discriminate, even though your court sits in the middle of a majority black city of Washington, DC.
Now, some, if they took the broad language of Abner Mikva in that case, might call that a manifest imbalance. Now, I would not suggest for a moment that that imbalance resulted from any intentional discrimination on your part. The crucial point to keep in mind, however, is that when the concept of discrimination is divorced from intent and we rely on statistics alone, a small business man or woman with your record of employing minorities might find himself or herself spending hundreds of thousands of dollars to fend off discrimination suits, and that in fact is what is happening around this country right now.
Such an employer might adopt quotas or other forms of preferences in order to avoid or avert such litigation under any number of Federal civil rights laws. And I am worried about it, because it is not fair to the employer and it is not fair to the persons denied opportunities, because of preferences.
Naturally, I am concerned about preferences and I know you are and I know that you are a very good person. But I just want to point that out, because that happens every day all over this country, where there is no evidence of intent and, in fact, was no desire on the part of the employer to exclude anybody.
Completely missing Hatch’s point, Ginsburg replied: “I am going to try harder, and if you confirm me for this job, my attractiveness to black candidates is going to improve.”
So one minute Ginsburg was bemoaning the “unconscious bias” that she and the black job-seekers in the hypothetical faced, and the next minute she was claiming that the reason she had had no black law clerks is that black candidates didn’t find the prospect of a D.C. Circuit clerkship with her sufficiently attractive! On its face, that seems quite an extraordinary claim, and one for which a conservative nominee would surely be pilloried. But perhaps what Ginsburg really meant, but was reluctant to spell out clearly, is that there were extremely few black candidates who had the academic credentials to qualify for a clerkship with her and that she was competing with lots of other judges for those few candidates.
A few rounds of questioning later, in explaining her criticism of Congress for exempting itself from Title VII, Ginsburg chided, “One should practice what one preaches with respect to equal employment.”
* * *
Did Ginsburg’s record of hiring black law clerks improve when she got on the Supreme Court? Only by the tiniest of margins. Over the course of her 27-plus years on the Court, she hired more than 100 law clerks, but only a single black law clerk. That law clerk, Paul Watford, clerked for Ginsburg during her third term on the Court. President Obama appointed Watford to the Ninth Circuit in 2012, and he was on Obama’s short list for the Scalia vacancy in 2016. (Watford has announced that he will quit his judicial position at the end of May.)
* * *
Hatch’s exchange with Ginsburg received virtually no attention, but there was one interested person who evidently was watching very closely. Ginsburg had beaten out First Circuit judge Stephen Breyer for the nomination. Like Ginsburg, Breyer had never had a black law clerk. But, as a Breyer law clerk told me, Hatch’s exchange with Ginsburg spurred him to race out and hire his first. That’s why a year later Breyer, in his questionnaire response following his Supreme Court nomination, was able to attest:
Of the 8 law clerks to whom I have extended circuit court clerkship offers for the next two years (and who have accepted), 3 are women (one of whom is African-American) , one is an Asian-American man, and one is an Hispanic man. [Breyer questionnaire response, pp. 59-60 (emphasis added), published in Breyer hearing transcript at 81-82.]