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Probability and Women Law Clerks

Just seven of the 37 Supreme Court law clerks this year are women -- a 50 percent drop from preceding years. In a New York Times article reporting this, two justices portrayed the percentage as the result of "a random variation in the applicant pool." Does statistical reasoning bear that out? Two professors -- David H. Kaye of Arizona State University College of Law and Joseph L. Gastwirth, professor of statistics at The George Washington University -- set out to find out. In a preview of their findings published Oct. 30 in the National Law Journal, the authors wrote that, "for all the raised eyebrows," random variation could well explain this year's decline. Now, they have published their full report, "Where Have All the Women Gone? 'Random Variation' in the Supreme Court Clerkship Lottery." The abstract tells more:

"This essay applies standard statistical reasoning to answer two questions - what do the numbers prove, and how strongly do they prove it? We show that this year's decline in women is not at all improbable. Likewise, if the percentage of women applying for these clerkships is in the range of what one Justice suggested, then the small proportion of women is about what one would expect.

"The situation seems different, however, when one examines statistics on each Justice. Some Justices hire considerably fewer women than would be expected by chance, while others hire somewhat more. There are many possible explanations for this pattern. We marshal data to assess the plausibility of some of them, but in the end, the available records do not allow a definitive conclusion. To assure public confidence in the Justices' assurances of gender neutrality, we recommend that the Court make statistics on the characteristics of those who apply for and receive clerkships publicly available."

Alan Childress, writing at Legal Profession Blog, praises the report, but argues that, statistics aside, the problem is that the candidate pool is skewed to begin with:

"If the Justices are not going to look for hiring factors other than those 'tried and true,' or find new feeder judges--or else at least impress upon their current sources the importance of their being more diverse in hiring--then all the statistical 'neutrality' of the Scotus hires for matching the 'available pool' (or more accurately, the study suggests, for falling within an expected range in that pool, if only at the shallow end) is wholly meaningless.  The Court can do better, and should."

Kaye, Gastwirth and Childress all agree on one point: The Supreme Court should publicly disclose data about the applicant pool and let the public determine whether the drop in women clerks is a statistical blip.

Posted by Robert J. Ambrogi on November 14, 2006 at 03:48 PM | Permalink | Comments (1)

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