Welcome
US Law Week

Big Law Emerging as Pipeline for Female Supreme Court Advocates

Oct. 5, 2020, 8:45 AM

Sarah Harris will argue her first case before the Supreme Court in November having taken an unusual route to high court advocacy: up through private practice rather than the U.S. solicitor general’s office.

The former clerk to Justice Clarence Thomas credits Williams & Connolly, where she’s a partner, with grooming her.

The “truth is, I would not be taking the podium in November if I didn’t work with Lisa Blatt and if I wasn’t at Williams & Connolly,” Harris said of her colleague, who’s among a handful of women to regularly argue before the justices.

Private law firms have become a small but important pipeline for female advocates before the Supreme Court. This is particularly so as the number of cases argued by women attorneys at the solicitor general’s office, the traditional launching pad for high court advocates, has fallen in recent years.

A determined mentor like Blatt willing to convince clients to give a woman a shot is vital in trying to break into the most elite circle of appellate practice, advocates say.

Most Supreme Court lawyers get their first argument in government service
Illustration: Jonathan Hurtarte/Bloomberg Law

Belva Ann Lockwood

The status of women at the Supreme Court takes on elevated significance following the death of Justice Ruth Bader Ginsburg on Sept. 18. The liberal icon appeared six times before the justices as a private attorney. Her nominated replacement, Judge Amy Coney Barrett, was an Antonin Scalia clerk but has never argued before the high court.

The first woman to do so was Belva Ann Lockwood in 1880, after she fought for passage of a bill to allow women attorneys in all federal courts. Women made leaps in the 1970s—when Ginsburg argued—and 80s, but still remain an infrequent presence as Supreme Court advocates. They’ve argued between 12% and 21% of the time in recent terms.

The ratio of female advocates before the high court was the highest in history in 2016 at 21%. But women made just 20 arguments in both the 2017 and 2019 terms, the lowest number since 1994.

The SG’s Office

Part of the reason for the low numbers is change at the solicitor general’s office, which argues the federal government’s case before the Supreme Court, and where most advocates get their first argument opportunity.

Women achieved parity in the solicitor general’s office in 2016, the high-water mark for female attorneys arguing at the Supreme Court since the 1980s, when the court was hearing more than twice as many cases as today.

But the number of women in the office “plummeted” starting in 2017, the year President Donald Trump took office, according to Goldstein & Russell’s Sarah Harrington. Harrington and four other female attorneys who’d argued almost 90 cases among them over the years left for private practice around the end of the Obama administration.

During the 2016 term, female advocates argued 18 times on behalf of the solicitor general’s office, out of 48 government arguments. In 2017, that number was halved, out of 48 arguments for the Trump administration.

The Justice Department declined to comment on the number of women in the solicitor general’s office. Three are appearing on behalf of the federal government in the first round of arguments this term.

Women still accounted for only 11% of the 70 arguments done by lawyers from law firms last term. But the pipeline becomes more important as the public service route has receded.

“I would expect significant uptick of female advocates in the future” via new avenues, said Mayer Brown’s Nicole Saharsky. She has argued 30 high court cases—more Supreme Court cases than any other woman in the past decade.

Mentors, Client Buy-In

The ranks of firm lawyers emerging as the next generation of Supreme Court advocates include:

  • Erin Murphy of Kirkland & Ellis, who argued a high-profile campaign finance case, McCutcheon v. FEC, her first time up in 2013. She’s argued three more since.
  • Catherine M.A. Carroll, of WilmerHale, had her first argument in 2013, too, in Heimeshoff v. Hartford Life & Accident Insurance Co. She’s argued twice since.
  • Kelsi B. Corkran argued her first Supreme Court case in 2018 in City of Hays v. Vogt, while at Orrick. She’s now head of the firm’s Supreme Court practice and will argue her second on Oct. 14.
  • Colleen E. Roh Sinzdak of Hogan Lovells, who has since joined the solicitor general’s office, made her first high court argument in 2019. She’s arguing her second Oct. 12.

“Getting your first Supreme Court argument while in private practice is difficult for anyone, but it is particularly difficult for women, who tend to be underrepresented in firms’ appellate and Supreme Court practices,” said Jenner & Block’s Jessica R. Amunson, who argued her first Supreme Court case in 2017 while at Jenner.

The problem isn’t unique to the Supreme Court. A study of lawyers appearing before the U.S. Court of Appeals for the Federal Circuit reflected a similar dynamic. Another study showed women making scant progress in courtrooms across New York State.

Women attorneys who have become Supreme Court advocates say it’s vital to have a mentor advocating on your behalf inside the firm.

Gibson Dunn’s Allyson Ho, who has argued all four of her Supreme Court cases in private practice, credits now-Sen. Ted Cruz (R-Texas) for being “an extraordinary mentor.” Ho and Cruz overlapped at Morgan Lewis & Bockius after he stepped down as Texas’ solicitor general.

Cruz “advocated for me with clients and colleagues to land the kind of opportunities that put me on the path to the podium,” she said.

Equally important is getting buy-in from clients. That can be “doubly challenging for women, who have to overcome not only lack of experience but also the subconscious biases against women at the podium,” said Corkran.

Buy-in most often happens when a client hires a more experienced—and usually male—advocate to lead the briefing team, and comes to trust the second chair advocate enough to be comfortable with her handling the argument, Corkran said.

‘Old Fashioned Luck’

That’s how Murphy got her first high court appearance.

From the start, Murphy said her practice was Supreme Court-oriented. So she’s always worked closely with former Solicitor General Paul Clement, one of a handful of lawyers to have argued more than 100 times at the court in the modern era.

Clement encouraged a client in 2013 to let Murphy argue. Having worked closely with her for months, the client agreed.

“It was just good old fashion luck” to some extent, Murphy said. But it also was critical to have been in a position where she could earn client trust, she said.

Creating a pipeline to the court can help build positive feedback at firms, too.

It’s important for women associates to see someone who looks like them up at the lectern—to show them there is a career path to Supreme Court arguments, Mayer Brown’s Saharsky said.

Arm or a Leg

Harris will make her Supreme Court debut Nov. 2, representing a former railroad worker, Manfredo Salinas, challenging a denial of disability benefits.

She credits a commitment at Williams & Connolly “to growing the appellate practice by doing whatever they can” to get Supreme Court arguments.

She also credits Blatt for spending countless hours to get the firm to give her and other women a chance.

“Many Supreme Court practitioners would rather give up an appendage than an argument opportunity,” she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

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

To read more articles log in. To learn more about a subscription click here.