Panel on women and the Supreme Court bar

By Kevin Russell
on Apr 12, 2010 at 3:41 pm

As attention is focused on President’s Obama’s potential pick to succeed Justice Stevens, much attention is being paid to Elena Kagan, who as Solicitor General is the most prominent woman member of the Supreme Court bar at the moment.  Were she to be nominated and confirmed, she would follow in the footsteps of another prominent member of the Supreme Court, Justice Ruth Bader Ginsburg.  Last Thursday, Justice Ginsburg appeared on a panel at the Georgetown University Law Center to discuss women and the Supreme Court bar.  The panel reflected on both the significant progress that has been made, on why nonetheless so few women have risen to prominence in the Supreme Court bar, and on advice to young women lawyers interested in appellate and Supreme Court practice.

The panel included four other women who practice regularly before the Supreme Court: Stanford Law Professor Pam Karlan, who is co-founder of that law school’s Supreme Court Litigation Clinic; Patricia Millett, co-head of Akin Gump’s Supreme Court Practice; Virginia Seitz, partner at Sidley Austin; and moderator Pamela Harris, executive director of Georgetown’s Supreme Court Institute.

Beginnings

Harris asked each of the participants to talk about how they got into Supreme Court practice, leading to a discussion of the various paths to careers in appellate and Supreme Court advocacy.

Justice Ginsburg was teaching at Rutgers and active in the ACLU when the civil rights organization read in U.S. Law Week about the case of Sally Reed, who was denied the right to administer her son’s estate because an Idaho statute enacted a statutory presumption that between otherwise equally qualified potential administrators, the job must be given to a man over a woman.  She took up the case, which turned into her first Supreme Court argument.

Pam Karlan’s first two arguments at the Supreme Court arose out of cases in which she had filed the complaint and litigated the case from the very beginning – one at the NAACP Legal Defense Fund, and the other as a professor at the University of Virginia.  There was no question, she said, that the attorney who tried the case would brief and argue it at the Supreme Court.  But that is an increasingly uncommon practice, she noted, with the development of a specialized Supreme Court bar.  She wondered whether it meant a diminishment of opportunities for new people (including women) to get the all-important first argument (which then opens the door for subsequent opportunities).

Patricia Millett took what she described as a more typical path to a career in appellate and Supreme Court advocacy.  Early in her career she took a job in the Appellate Section of the Civil Division at the U.S. Department of Justice.  She was then hired as an Assistant to the Solicitor General by Drew Days, whom she credited for expanding the office’s hiring beyond big D.C. law firms with the result of increasing diversity in the SG’s office.  She noted that currently a very large number of women arguing at the Court argue on behalf of governments (state, local, or in her case, the federal government), or non-profit groups (like LDF or the law school clinics).  The next frontier, she said, was business cases.  She credited Maureen Mahoney at Latham and Watkins with establishing a Supreme Court practice at a major law firm.  It remains to be seen, Millett said, how many other women can replicate that success.

Virginia Seitz described some of the difficulties women have had in establishing Supreme Court practices at law firms, recommending that young women wanting such a career start in the government to get the experience and credentials needed to succeed in private practice.  She noted that she began her career in a small labor law firm where, like LDF, attorneys who litigated cases at trial were responsible for appeals as well.  However, when cases went to the Supreme Court, more senior men at the firm always did the oral arguments.  Seitz later moved to Sidley Austin, where she has established an extensive Supreme Court practice that focuses on brief writing, including a brief on behalf of retired military officers that featured prominently in the oral argument and decision in the Michigan Law School affirmative action case.  (Justice Ginsburg noted at the panel that Seitz’ brief “grabbed everyone’s attention” and should be given out as a model for amicus brief writing, in part because it “wasn’t very long” but was very persuasive).  She has, however, only done one argument, finding it difficult to engage in the aggressive self-promotion necessary to convince business clients to give her the argument.

The Problem of Self-Promotion

Others on the panel likewise described difficulties in engaging in the kind of self-promotion that is often necessary to secure oral arguments at the Supreme Court in an increasingly competitive field.

Professor Karlan noted that she, like Seitz, intensely dislikes the self-promotion that is often needed to get Supreme Court cases, including “cold calling” lawyers who have cases in the lower courts that are likely Supreme Court grants.  But that is often what is required.  She also described that in a number of cases every year, once the Supreme Court grants certiorari, the parties conduct “beauty contests” to pick new Supreme Court counsel.  She noted that when she has participated in such contests, she has never spoken badly of the competition, but wonders if others are similarly restrained.

It is getting oral arguments that is the most difficult, Karlan and others agreed.  This is not only because oral arguments are the highest-profile part of Supreme Court advocacy (and thus the most intensely sought after opportunities), but also because, she said, she has less difficulty reaching out to offer to write a brief, which is in a sense a more selfless act.

The great irony, Seitz noted, is that oral argument is the least important part of appellate advocacy.  (Justice Ginsburg chimed in to strongly agree – oral argument is a “nice show,” she said, but it is fleeting; the brief is “ever so much more important”).

Nonetheless, Millett added, at least in the business community, firms deciding whom to hire to write the brief will want to know who is doing the argument.  And it is in this area, Karlan noted, that women are the least represented.  In government and non-profit work – where women do not have to  go out and get cases, but can succeed simply by doing good work on cases that come to them – women appear much more frequently before the Supreme Court.

So what is the solution?  In the question and answer period, a young man asked whether aggressiveness has to be a male characteristic.  Should women who want to be Supreme Court advocates be trying harder to be more self-promoting and competitive?  The reaction was mixed.  Seitz said that she hoped future generations of women lawyers could be.  Patricia Millett noted that she, and many other women, have no difficulty being aggressive in briefing and argument; it is the interpersonal aggression that some women find hard.  But perhaps the problem is not with women failing to adapt to that style of business dealing, but rather with that mode of operation itself.  There’s no point in advancing in the profession, Millett suggested, simply in order to act like men.  Seitz noted that she got an opportunity to argue a case in the Court not because she was aggressive, but because the client was turned off by the aggression of others.  Perhaps, several panelists agreed, that is what needs to become more common.

Pathways to Progress

So what should be done to increase the number of women members of the Supreme Court bar, and what should young women interested in such a career do early on to pave the way?

All of the panelists agreed that mentors play an important role.  Justice Ginsburg described how after she initially applied to clerkships and firm jobs, and got no responses at all, constitutional law scholar Gerald Gunther took it upon himself to call judges on her behalf.  He eventually persuaded a Second Circuit judge to give her a chance.  (In a sign of the significant barriers of the time, Justice Ginsburg later found out that even that judge was very concerned about the fact that not only was she a woman, but she had a four-year-old child.  Gunther persuaded him to accept her by identifying a male student working at a law firm who would be available to take Justice Ginsburg’s slot should she fail mid-way through the clerkship).

Role models are also important, the panelists concluded.  Patricia Millett noted that by the time she was considering a career in the SG’s office, Justice O’Connor was on the Court, and there had been trailblazers like Ruth Bader Ginsburg who had demonstrated it was possible.  It never occurred to Millett that she could not also be a Supreme Court advocate.  Today, Elena Kagan’s confirmation as Solicitor General has added another important role model for younger women.

The increasing number of women on the bench, panelists said, also helps.  Justice Ginsburg noted that Jimmy Carter deserves much of the credit for bringing women into the judiciary; prior to his presidency there were almost no women judges, but after Carter began appointing women no president has gone back.

Take jobs that allow you to develop the skills and experience needed for appellate advocacy, several panelists recommended.  Seitz noted that most of the women in private practice got their starts in the government.  Professor Karlan’s advice was “clerk, work, and don’t be a jerk.”  That is, clerking develops skills and credentials; working for the government or a non-profit that does appellate work continues that path; and the quality of one’s work and professional behavior will open (or close) doors when future opportunities arise.  (She also noted that even those working at firms, where appellate experience is harder to get, can take advantage of pro bono programs operated by many federal courts of appeals.)

Justice Ginsburg’s advice was more personal: because in the end many women have children, and balancing home and work life can be difficult, pick a good partner.  The luckiest thing that ever happened to her, Justice Ginsburg said, was marrying her husband, who was never threatened by her success and always supported her career (including, she noted, by being a super chef; she  hasn’t cooked a meal in 30 years).

Pattie Millett’s advice to young women, in the end, was simply to put your head down and do it.