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Biden’s Top SCOTUS Lawyer Should Be Woman, Court Watchers Say

Nov. 13, 2020, 9:50 AM

President-elect Joe Biden should make diversity a priority in picking his top lawyer to argue before the U.S. Supreme Court, female appellate litigators and progressive activists say.

The former vice president and one-time chairman of the Senate Judiciary Committee has already pledged to nominate a woman of color to the high court bench, should the opportunity arise.

The Supreme Court bar, however, is still largely made up of white males.

The Office of the Solicitor General argues by far the most high court cases each term and has traditionally been a springboard for female and male litigators to build Supreme Court practices.

“The Biden administration has a fantastic opportunity to demonstrate its stated commitment to diversity through its SG pick,” said Jaime Santos, a partner in the appellate litigation practice at Goodwin Procter.

There “is no dearth of brilliant and qualified women who would do a phenomenal job,” Santos said. “At the top of the list should be folks like Sarah Harrington, who has spent about 90% of her career in public service.”

Santos and Harrington, a lawyer now with the Supreme Court boutique Goldstein and Russell, listed a number of potential candidates who previously served in the solicitor general’s office, such as:

  • Leondra Kruger, who sits on the California Supreme Court;
  • Nicole Saharsky, now at Mayer Brown and notes on her law firm bio that she’s “argued more cases in the U.S. Supreme Court than any other woman in the past decade”;
  • Elizabeth Prelogar, who recently joined Cooley;
  • Deanne Maynard, who has argued 14 cases at the high court and is now a partner at Morrison & Foerster;
  • Elaine Goldenberg, who now practices with former U.S. Solicitor General Donald Verrilli at Munger, Tolles;
  • Melissa Sherry, who has argued 10 cases at the Supreme Court and is now a partner at Latham & Watkins; and
  • Ginger Anders, who also landed at Munger, Tolles.

Santos also pointed to Kelsi Corkran, who had a long run in the Justice Department’s Civil Division appellate staff prior to heading up the Supreme Court practice at Orrick Herrington & Sutcliffe.

Former U.S. Sen. Russ Feingold (D-Wis.), president of the progressive American Constitution Society, said he’d “like to see the new president appoint a woman as solicitor general.”

“Not enough of the advocates who come before the Supreme Court are women,” Feingold said.

Female Advocates

Women argued 20 cases at the high court, compared to 136 arguments by men last term. That’s in line with the percentage of cases argued by female advocates in recent terms, which has fluctuated between 12% and 21%.

Moreover, Elena Kagan has been the only woman confirmed as solicitor general in the job’s 150-year history. She served under Barack Obama before he appointed her to the Supreme Court. Barbara Underwood served in an acting capacity in 2001 under George W. Bush.

The prized position can lead to successful careers in private practice. The attorney outside of the government who has argued the most Supreme Court cases is former Solicitor General Paul Clement, who is now at Kirkland & Ellis and has argued over 100.

Restoring Norms

Diversity shouldn’t be Biden’s only goal, said Harrington, who has argued 21 cases at the Supreme Court.

Another focus driving the selection process should be “an effort to restore longstanding DOJ norms,” Harrington said.

Many attorneys, including Justice Sonia Sotomayor, have lamented the Trump administration’s practice of jumping over the lower courts to have the justices weigh in.

“There is a great slate of female OSG alumnae with extensive Supreme Court experience who could accomplish both goals” of diversity and restoring norms, said Harrington.

Given the new 6-3 conservative majority on the court, the Biden administration might also be looking for someone who can limit the government’s losses, rather than seek sweeping victories.

Other Measures

Gender isn’t the only measures of diversity for the Biden team to consider.

Notably, there has only been four attorneys of color confirmed as solicitor general. They include Thurgood Marshall, who was Black, and the most recent appointee, Noel Francisco, who is of Asian descent.

Another possibility is Loren AliKhan, a woman of color who is the solicitor general for the District of Columbia.

Pam Karlan, a Stanford professor who recently won a landmark LGBTQ ruling in the high court, Bostock v. Clayton County, or Kathleen Sullivan, the only named female partner at a top 100 law firm, Quinn Emanuel Urquhart & Sullivan, would be the first openly gay solicitor general, if nominated and confirmed by the Senate.

--With assistance from Greg Stohr

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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