U.S. Supreme Court. (Photo: Diego M. Radzinschi/ ALM)

Even as the legal profession pledges to bolster diversity in its workforce, the number of female lawyers who argue before the U.S. Supreme Court is still bafflingly low.

At a recent Women's Bar Association of the District of Columbia panel discussion titled "Supreme Court Advocacy: Where are the Women?" Williams & Connolly partner Sarah Harris reported that in the last Supreme Court term, 31 of the 184 appearances were women. That amounts to 17%, lower than some other recent terms, as tallied by SCOTUSBlog.

The numbers are even worse for female lawyers in private practice, Harris noted. Only seven of the 90 appearances by private practitioners were by women, "which is not very great," she said. And among the 31 lawyers who argued on behalf of corporations, only three were women. Harris clerked for Justice Clarence Thomas in 2015 and 2016.

The number of female advocates of color is also dismal, though that data point is more difficult to tally, said Kelsi Corkran, a partner at Orrick, Herrington & Sutcliffe and a former clerk to Justice Ruth Bader Ginsburg. "When I talk to my friends who are women of color about their clerkships, they can't point to a single person who looks like them who has done this before. I think we're losing talent before the court."

Numerous reasons but few solutions for the low numbers were advanced during the discussion. At the end of the event, moderator Amy Howe, a reporter for SCOTUSblog, said, "I wish we could stop having to have these discussions."

One reason discussed for the dearth of women is the client's preference for experienced Supreme Court advocates, which often, in self-fulfilling fashion, can rule out women. "Clients aren't, especially in the big corporations, that keen to take a chance on a more junior advocate," said Loren AliKhan, solicitor general for the District of Columbia and formerly a lawyer at O'Melveny & Myers. "I think especially they are not as keen to take a chance on a more junior female advocate."

Harris added, "General counsels are afraid of their boards. They're big cases, right? You're not going to get yelled at if you pick a former solicitor general. And so that's a safe choice." All but one solicitor general in history has been male, and the one female was Elena Kagan, now a Supreme Court justice.

Patricia Millett. (Photo: Diego M. Radzinschi/ ALM)

Kagan's current status suggests another factor in diminishing the number of women at the lectern: different career paths.

"Of the women that have been repeat players at the Supreme Court, a lot of them have gone on to wonderful jobs, taking them out of the pool of the Supreme Court bar," AliKhan said. "You think about Cornelia Pillard, a judge on the D.C. Circuit, or Pattie Millett, who is a judge on the D.C. Circuit, or Pam Harris, who's a judge on the Fourth Circuit, or Leondra Kruger, who is a California Supreme Court justice. I think that if you were to put those women back into play, put them back into private practice, you might see some different numbers."

Corkran asserted that "something more pernicious is going on. And it's important to name it, and not make excuses. I think it has to do with our long, long history of discomfort with that ultimate position of power, whether it's a presidential candidate, or the advocate who's standing before the Supreme Court, you still have this image in our head of that being a man, probably a white man as well, because of all we've heard and seen."

Panelists also stated that it is hard for experienced Supreme Court advocates to hand the prestigious assignment to someone else.

Corkran, who argued before the Supreme Court for the first time in 2018, said that in her case, "it required a man with a lot of power stepping out and giving up an opportunity for himself. You can be all about diversity right up to the moment where it starts to affect your own privilege."

Sarah Harris/courtesy photo

Corkran credited Josh Rosenkranz, co-head of Orrick's Supreme Court and appellate litigation practice, for actively smoothing the path for her to argue, partly by having her take the lead on briefing so the client would get to know her. "I would say to men, I think the same thing I would say to women, which is, look for opportunities to promote other people," she said.

Harris made a similar point, giving a shoutout to principal Deputy Solicitor General Jeffrey Wall, who joined the Trump Justice Department from Sullivan & Cromwell.

"I think the SG's office has been quite conscious of where they are in hiring women, and I have seen very few people work as hard as he has in trying to find good women out there," Harris said. The office is allowing more flexible hours to help women with young children, she added.

As bleak as the discussion was about the dearth of women arguing before the high court, Harris struck a positive note for the future, with more women leading or joining appellate practices. "The statistics are both sobering, but I still feel a sense of excitement about the profession and the possibility of women succeeding in it."

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