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Tuesday, September 25, 2018

Lady Lawyers


Sometimes things just come together.  On exhibit right now at the Supreme Court is an instillation entitled “In Re Lady Lawyers: The Rise of Women Attorneys and the Supreme Court.”  It consists of memorabilia documenting the history of women admitted to the Supreme Court Bar, and more broadly the history of women attorneys in the United States.  It includes items like a 1905 woman’s suit loaned from the costume collection of the Daughters of the American Revolution Museum as well as personal items from all of the past and present women Justices.  Its intent, most likely, is to create a narrative of progress from the days when only a few women were admitted to practice law to today when as many women as men graduate from law school every year.    And down the street from the Supreme Court at the U.S. Senate on Thursday we will see a woman attorney hired by the Senate Judiciary Committee to question Dr.Christine Blasey Ford, the woman who is accusing Supreme Court nominee Judge Brett Kavenaugh of sexually assaulting her when both were high school students in the early 1980s.  In both cases, the exhibit at the Supreme Court and the hearing at the Senate, the salient identifying feature of the attorneys involved are their gender. 

In 1905, around the time that women first began to be admitted to the Supreme Court Bar, “Lady Lawyer” was a term meant to highlight the oddity of a woman credentialed to undertake what was until then an exclusively male profession.  In the 1980s when the alleged incident occurred between Dr. Blasey Ford and Judge Kavenaugh, the world “Lady” wasn’t so in fashion, but there were still plenty of occasions to use a gendered prefix to describe police officers, pilots, doctors, clergy, and legislators to suggest that somehow the performance of their job duties were altered by their being women.  Yet even then and certainly in the years since, there was also a feeling that with the graduation rates from law schools approaching gender parity soon women would achieve levels of success in law equal to that of men—so much so that the word “lady lawyer” would go the way of “stewardess” or “co-ed.”  But that’s not what happened. 

The most recent statistics from the American Bar Association’s Commission on Women in the Profession reports that while women do, indeed, graduate from law school at roughly the same rate as men, they are still represent only 35% of licensed attorneys.  And in most cases they make less money.  They make up only 19% of the Equity Partners in private law firms 26.4% of the General Counsels of Fortune 500  companies, 32.4% of Law School Deans, and 27.1% of Federal and State Judges.  This gap is worse in law than in other professions. The statistics for women of color are much worse, with numbers in  most categories in the single digits.  (see here also). Looking at qualitative measures of success, a report prepared by the Center for WorkLife Law at the University of California at Hastings in partnership with the Minority Corporate Counsel Association found that “Women lawyers of color were eight times more likely than white men to report that they had been mistaken for janitorial staff, administrative staff, or court personnel.”

So maybe given this grim picture, it is not surprising that when faced with the fact there were not now and never had been any women on the Senate Judiciary Committee and faced with the task of questioning a woman about allegations of sexual assault the Committee has decided to seek out not just a lawyer experienced in interviewing women alleging sexual assault, but a woman lawyer with that experience. 

That they have found a highly competent and experienced prosecutor who fits this description is not at issue—but that they went looking for a woman certainly is.  Because by proceeding from a premise that the best person to question a woman was another woman the Judiciary Committee has, perhaps unwittingly, endorsed the belief that the converse is also true: the best person to question a man is another man.  And given the realities of the gender imbalance in business where only 24 of the CEO’s of today’s Fortune 500 companies are women this belief serves to create not so much a glass ceiling as an iron wall between women who are lawyers and the most lucrative areas of legal practice in areas like finance, banking, and securities.  And extending this endorsement of “matching” lawyer with witness (as seems to be the case here) provides even less hope for change in the statistics for women of color or indeed any other perceived identity under-represented in the client base of the most highly compensated areas of legal practice.

So long as the institutions designed to create the laws that prevent discrimination, Congress, and those designed to defend them, the Courts, quickly default to the worst forms of discrimination when faced with the most public possible display of gender based hiring, the chances for moving towards a competency based society in which women, people of color, and other under-represented minorities in any field can achieve professional success based on their ability rather than their identity remains poor.   Rather than a celebration of progress, perhaps the “Lady Lawyers” exhibit at the Supreme Court should be visited as a reminder that while access is a necessary component to combatting discrimination, it never has been and is not now a sufficient one.

Posted by Jennifer Bard on September 25, 2018 at 11:50 PM | Permalink


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