The dearth of women arguing before the Supreme Court is still a reality, but the numbers are improving, Supreme Court and appellate practitioners said Tuesday night.
"The pipeline is filling up with women," said U.S. Justice Department Assistant Attorney General Virginia Seitz—even as the court's docket of argued cases remains small and competition among attorneys to appear before the justices grows more intense. "It's a very small plate of meat with a lot of large dogs," Seitz said.
Solicitor General Donald Verrilli Jr. also pointed to a gradual increase in the number of women advocates, noting that in the final argument cycle of the last term, four cases were argued by women assistants to the solicitor general, "and each one was phenomenal. It was normal." The four were Elaine Goldenberg, Sarah Harrington, Ann O'Connell and Melissa Sherry. Verrilli said that of the 15 associates in his office, six are women and he has one vacancy.
Seitz and Verrilli spoke at an event sponsored by the Women's Bar Association of the District of Columbia at the D.C. offices of Morrison & Foerster. MoFo's Deanne Maynard, who has argued 13 cases at the high court, was also on the panel, as was Amy Howe of SCOTUSblog, who has appeared twice before the justices.
"If you want to be a Supreme Court practitioner you can set out and be one," Maynard said. "It's a meritocracy. I have not perceived in my career anybody holding me back because of gender."
D.C. practitioner Maria Mendoza, who has written about the low numbers of women and minority lawyers who argue at the high court, set the tone with a brief history. Women advocates were extremely rare before the mid-20th century, when Beatrice Rosenberg and Bessie Margolin argued numerous cases for the federal government. In November 1978, for the first time, women represented both sides in two cases in a row. Another milestone came in 1993 when a ladies' rest room was built near the lawyers' lounge at the court.
Citing a recent Associated Press survey, Mendoza said 17 percent of the advocates who argued in the term just ended were women.
That same survey noted that only one African-American lawyer, a male, argued last term.
Women of color arguing before the high court are extremely rare. Asked about it, Verrilli said it was a matter of "significant concern" to him, but "I don't have a good answer." Seitz lightheartedly took some blame for the situation, having hired Leondra Kruger, who is African-American, away from the solicitor general's office recently to work for her in the Office of Legal Counsel.
Speaking to a mainly female audience, the panelists offered numerous suggestions on how to break into the exclusive club of Supreme Court advocates.
Verrilli urged women to develop specialties as he did early in his career. At Jenner & Block he specialized in telecom cases, also taking on pro bono habeas appeals, which gave him "an enormous amount of appellate experience."
Howe said the growing number of law school Supreme Court clinics offered "yet another opportunity" for women to succeed in appellate work. Seitz urged women to establish themselves in lower appellate courts as a good way to sharpen their advocacy skills before moving into Supreme Court advocacy. "I don't think the justices are listening as much as the circuit judges are," she joked.
Panelists were asked whether judges treat them differently than men. "They go after me as hard as they go after my male colleagues," Seitz said.
Seitz, formerly a partner at Sidley & Austin, gained fame in 2003 for a crucial brief she wrote on behalf of former military officials in favor of affirmative action in the Supreme Court's Grutter v. Bollinger case. Yet during oral argument, justices referred to it as "the Carter Phillips brief," a nod to Sidley's veteran Supreme Court practitioner Carter Phillips, whose name was also on the brief. Asked if she felt disrespected at the time, Seitz said, "It never bothered me … It was more of a compliment to Carter than an insult to me."
Verrilli said a Supreme Court clerkship is not a necessary prerequisite for Supreme Court advocates. "A significant number of lawyers in the SG's office did not clerk," he said. "It is not an ironclad barrier."
Howe cited Stanford Law School Professor Pamela Karlan's classic advice to women interested in appellate practice: "Clerk, work, and don't be a jerk."
Tony Mauro writes for The National Law Journal, a Daily Report affiliate.