Covington & Burling’s Beth Brinkmann is a bit of an anomaly in the legal world.
While many lawyers dream of arguing before the U.S. Supreme Court, Brinkmann has argued there 25 times, notching another win in February.
In many ways, she is typical of veteran oral advocates before the high court. She went to an elite law school, clerked on both the Supreme Court and a federal court of appeals, and worked in the solicitor general’s office. She is an equity partner in private practice and the co-chair of her firm’s appellate and Supreme Court litigation group.
But she’s set apart, statistically speaking, by something other than her legal successes: She’s a woman.
Only 17% of oral arguments before the Supreme Court in the 2018-19 term were presented by women, according to data compiled by Bloomberg Law. That number remains nearly unchanged from half a decade ago.
Brinkmann has some company: William & Connolly’s Lisa Blatt, Mayer Brown’s Nicole Saharsky, Latham & Watkins’ Melissa Arbus Sherry, and others. But despite modest gains elsewhere in the legal profession, women remain largely underrepresented in Supreme Court advocacy.
Attorneys and academics alike recognize three important pathways that many veteran advocates take: the U.S. solicitor general’s office, Big Law appellate practices, and Supreme Court clerkships.
Women have made gains in Supreme Court clerkships, which are considered an important stepping stone for further appellate work, including advocacy before the high court. But the solicitor general’s office, a more direct path to Supreme Court work in the private sector, has taken a hit, with fewer women assistants in the office this year than in years past.
The result: an uncertain future for the gender breakdown of oral advocates and concerns that a “leaky” pipeline could derail progress going forward.
Solicitor General: Not as Equal as It Was
Many veteran appellate lawyers cut their teeth with oral advocacy before the high court while at the solicitor general’s office, now helmed by Noel Francisco, which argues cases on behalf of the United States government.
New assistants typically argue once a year, whereas the solicitor general tends to argue almost every sitting, or about once a month while the court is in session.
Though some top appellate lawyers in private practice secure oral arguments before the Supreme Court without first working for the government, racking up arguments while in the solicitor general’s office is a “well-tread path” to establishing oneself in the field, said Nicole Saharsky, a former assistant in the office who now co-heads Mayer Brown’s Supreme Court and appellate practice in Washington.
Unlike private practice, where oral arguments are doled out based on the interests of clients and the discretion of firm management, the solicitor general’s office assigns oral arguments based solely on the seniority of its staff members.
And because oral advocates from the solicitor general’s office present roughly one-third of arguments in any given term, its composition has an outsize influence on the overall gender breakdown of Supreme Court advocates.
“If there are a lot of women in that office, then a lot of women argue,” said Munger, Tolles & Olson’s Elaine Goldenberg. “If there aren’t a lot of women in that office, then not a lot of women argue.”
A few of the office’s vacancies over the past couple of years—created by the departure of talent like Goldenberg, Saharsky, Arbus Sherry and Ginger Anders of Munger, Tolles & Olson—were filled with women. Still, it’s less than it was under Don Verrilli’s tenure as solicitor general from 2011 to 2016, when there were, for a period, eight men and eight women serving as assistants.
The solicitor general’s office did not respond to multiple requests for comment regarding the composition of its staff, but a Bloomberg Law analysis of oral argument data found that five women assistants from the office argued in the 2018-19 term, compared to 11 male assistants in that same period.
“I had hoped that there would be, I suppose, more women hires to replace us, but that doesn’t seem to have happened,” said Saharsky, who has argued more cases before the high court in the past decade than any other woman.
Verrilli, who was appointed by President Barack Obama after Elena Kagan stepped down, said while he didn’t set out to achieve any “numerical benchmarks” when recruiting new assistants, he did take into account the fact that the office had skewed male for all of its history. Hiring top women lawyers both increased the office’s performance and created opportunities for women to “forge a path” to leadership roles in the Supreme Court bar, Verrilli said.
“Once you start to create an environment in which it is clear that women can thrive professionally while raising a family, it creates a virtuous cycle,” he said. “People see that it can happen.”
And despite the current dip in women assistants at the solicitor general’s office, it’s up from when Brinkmann first joined in 1993, when there was only one other woman arguing and Brinkmann was the 10th woman assistant in the office’s history.
As an assistant, Brinkmann helped spearhead efforts to attract top female talent by expanding the way the office publicized openings, revamping the way it reviewed resumes, and adjusting the way it conducted interviews.
Challenges in Big Law, Too
Women accounted for only eight of the oral arguments presented by Big Law lawyers this term, whereas men appeared a total of 51 times, according to a Bloomberg Law data analysis. And over the past five years, the percentage of oral advocates who are female and not working for the solicitor general has fluctuated between 9% and 14%, according to data from SCOTUSblog.
With so much riding on a Supreme Court case, clients represented by law firms tend to prefer equity partners with extensive argument experience at the Supreme Court.
While women represent 46% of associates in private practice, they comprise only about 20% of equity partners in the profession, according to a 2018 report from the American Bar Association’s Commission on Women in the Profession.
Without the title of equity partner, or a proven track record arguing before the high court, even seasoned Supreme Court brief writers can get passed over for oral arguments.
Ilana Eisenstein, co-chair of DLA Piper’s appellate advocacy practice in Philadelphia, said firms need to go beyond awareness and seek new ways to promote women to equity partner roles. And because clients play such a large role in choosing who gets to argue, it’s important to develop promising female lawyers and provide them the business development experience needed to thrive.
“Ultimately, it is the clients making these decisions,” Eisenstein said. “You need people who have had the right credentials and opportunities along the way to make that choice easy for the client.”
Marcy Hogan Greer, an appellate and complex litigation specialist in Austin, Texas, said a “chicken and egg” dynamic is at play, creating a feedback loop that makes it hard for advocates to accumulate oral arguments before the high court.
“No one is going to appoint you to be lead counsel or oral advocate in a big case if you’ve never done it before,” Greer said.
Pamela Karlan, co-director of Stanford Law School’s Supreme Court Litigation Clinic and veteran advocate, said while it’s the client who ultimately decides, a certain level of “puffery” is needed by lawyers within firms themselves to secure oral arguments.
“There is a kind of assertiveness in wresting arguments out of the hands of the people who might otherwise do them,” said Karlan, who has argued eight cases before the Supreme Court. “It’s not that all men are comfortable doing that, but I think most of the people who are comfortable trying to do that are male.”
Verrilli opened the Washington office of Munger, Tolles & Olson in 2016. Its partners there are 50% male and 50% female, including heavyweights Goldenberg and Anders, and seven of its nine associates are female.
As in the solicitor general’s office, Verrilli did not set out to hire a certain number of women. He said there is “absolutely no shortage” of top female talent, and the early hires of Anders and Goldenberg helped build momentum that set off a “virtuous cycle” of hiring.
Kavanaugh Picks Boost Courts’ Pool
Over half of the 2018 Supreme Court clerks were women, a first for the high court. Justice Brett Kavanaugh’s four clerks were all women, also unprecedented. These clerkships often help young lawyers land positions in large, prestigious firms with well-established Supreme Court and appellate practices.
These increased numbers will likely be reflected in more female advocates down the line. But whereas most alumni of the solicitor general’s office continue high-level appellate work in private practice, Supreme Court clerks take a variety of paths, including academia and different types of law.
Munger’s Anders, who has argued 18 cases at the Supreme Court, said besides having a “mix of perspectives” arguing before the justices, getting junior lawyers to see themselves is important in helping cultivate the next generation of legal professionals.
“There’s always tremendous power in being able to look at accomplishment within any profession and see there are people like me who have attained this,” Anders said. “To see that this is a path that is open to me.”
Brinkmann, who worked in each of the three main feeder areas, said while the legal profession should continually strive for equity before the high court, it’s important not to lose sight of the successes women are already making in the realm of appellate and Supreme Court work.
“People are putting more of a spotlight on these issues, which is great,” Brinkmann said. “But there’s so much work that needs to be done.”
—With assistance from Kimberly Strawbridge Robinson