WASHINGTON (AP) — Last year Lisa Blatt listed the top lessons she's learned in more than a decade as a lawyer arguing before the Supreme Court. Never let the justices see you sweat, facts matter and timing is everything. Then she wrote this: Women have a harder time than men successfully arguing before the court.
She should know. No living woman has argued before the nation's highest court more times than Blatt, who made her 30th appearance Wednesday in a case about drug prices.
"Each argument is a big deal," said Blatt, a Texas native who learned to argue as a high school debater.
Blatt said she believes women have the ability to argue as well as men, but they seem less likely to crave the verbal jousting required in the court.
While the high court now has three women on its nine-member bench — the most ever — the justices are still more than five times more likely to hear an argument from a male attorney than from a woman, an Associated Press review shows.
Prominent female lawyers agree that career paths leading to nation's highest court are equally available to women, but women aren't well represented on those tracks. Lawyers who appear before the high court often have resumes that include Supreme Court clerkships or jobs in the federal government's bullpen of top lawyers. But in both those areas, women are outnumbered by their male counterparts.
"One of the things I'm most concerned about is women self-select out of the types of things that lead to appellate Supreme Court careers," said Patricia Millett, one of a handful of women who routinely argues before the bench. Her 28 arguments put her just behind Blatt.
The fact that women give only about 15 percent of arguments before the court has led even justices to speculate about why. Speaking at Georgetown University last year, Justice Ruth Bader Ginsburg suggested the shortage of women hired as Supreme Court clerks is one reason for the gender disparity among lawyers practicing before the court. Working behind the scenes for the justices provides valuable experience for those who hope to return one day as litigators. Since the 1990s, however, women have taken up about a third of the clerk positions, a trend that continued this year. Justices Ginsburg, Sonia Sotomayor and Elena Kagan hired half of the 12 current female clerks.
Retired Justice Sandra Day O'Connor, meanwhile, has suggested that the shortage of women in a key Justice Department office affects the number of women who argue at the court. The solicitor general's office, which is charged with representing the federal government in Supreme Court cases, has six female attorneys out of a total of about 20 lawyers. Unlike attorneys in private practice, lawyers in the solicitor general's office routinely argue multiple times a year, so women in its office are frequently before the court.
Speaking last year during a forum at Washington's Newseum, O'Connor confronted Kagan, then the solicitor general, about the relative scarcity of women in her office.
"So what are we doing about it?" O'Connor asked Kagan.
"We're trying to get some more," Kagan said.
The office didn't hire its first female attorney until 1972, when Harriet Shapiro joined. Shapiro said the experience attorneys gain arguing for the government can also help start a career doing the same in private practice, an area that until recently was male-dominated. But Shapiro herself admitted she never really liked giving oral arguments. Before she appeared for the first time she dreamed her argument had turned into a baking contest, a switch she said made her very relieved. When it was over, she celebrated by bringing her office a cake.
Shapiro, who's now retired, predicts women will some day appear in equal numbers before the court, but other women lawyers weren't as certain.
Millett, a mother of two, and other female lawyers said family reasons can compel women to choose career paths that are less demanding than becoming a Supreme Court advocate. Maureen Mahoney, who has argued 21 times before the court and is also a mother, said that until family demands fall more equally on men and women she doesn't believe women will argue in equal numbers.
The first woman applied to argue before the Supreme Court in 1876, but the justices voted 6-3 against admitting her or any other female lawyer. Three years later, at the urging of the rejected lawyer, Belva Lockwood, Congress passed a law forcing the court to accept women as advocates. Still, female lawyers remained curiosities at the court into the 1970s.
One exception was Beatrice Rosenberg, a Justice Department lawyer who argued more than 30 cases in the 1950s and 60s. Until Wednesday, Rosenberg was the only woman with 30 arguments before the court, though a handful of men have argued twice that many.
The women who are Rosenberg's successors still play a valuable role at the court. Groups of students frequently visit for arguments, and it's especially important for them to see diversity before the bench, said Deputy Assistant Attorney General Beth Brinkmann, who has made 24 arguments before the court.
"I do think it's wonderful when school groups come and young men or women see perhaps a role model in some small way arguing that day before the court," said Brinkmann, who added that girls have stopped her in the cafeteria after watching her argue to ask why she chose to become a lawyer.
Having a larger group of women arguing also makes it less noteworthy when one stands before the court, said New York Solicitor General Barbara Underwood, the fourth woman ever hired as a Supreme Court clerk and a veteran of 19 arguments. The more a lawyer blends in, the more the lawyer's argument stands out, she said.
"As a general matter it becomes easier to perform," she said, "when you're not a token and a representative of all womankind but are simply a lawyer who is a woman."
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