Archive for April, 2011

April 23, 2011

Women Clerks at the U.S. Supreme Court

by Angela N. Johnson

Cynthia Cooper explores the gendered makeup of the U.S. Supreme Court clerks and the fact that women clerks seem to be stuck at the “1/3 mark,” having never comprised more than 1/3 of all U.S. Supreme Court Clerks.  The reason this is important, is that a U.S. Supreme Court clerkship is seen as a prestigious springboard into some of the most elite positions; when women are excluded, they inevitibly comprise a smaller portion of the eligibility pool for the most elite jobs (Cooper 2008).

These clerks are largely the crème de le crème of all clerks. According to Cooper, these clerks tend to have many things in common including, law degrees from elite schools where they graduated in the top of their classes, served as editors for their law reviews, performed research for key professors, and are alums of prestigious federal appellate court clerkships (many of the federal courts are seen as “feeder” courts to SCOTUS clerkships). Many of these informal eligibility requirements may factor into the fact the SCOTUS clerks are predominantly male. In examining the last 14 terms Cooper found that only 19 to 40 percent of the Supreme Court Clerks have been women. Given what we know about informal requirements, Cooper questions, “Is there a clog in the pipeline?” Cooper notes that it may be difficult to determine whether substantial discrimination in hiring exists because applicant data for these clerkships is held in close secret.  However in looking at the disparity within the types (prestige) of clerkships, Cooper examined the Judiciary Fair Employment Practices report of 2007 which included (for the first time) a gender breakdown for clerks in the federal bankruptcy, district, and appellate courts. This report showed that women comprise a majority (64.7%) of clerks to the less prestigious bankruptcy court clerkships; 59.89% for the district court clerkships, but just 42.4% of clerks for the federal court of appeals – the appellate clerkships are the most highly regarded and viewed as “feeder” courts to Supreme Court clerkships.  According to Cooper, this necessarily narrows the pool from which the Supreme Court draws.

In further examining the eligibility pool, Cooper notes a study conducted by David H. Kaye and Joseph Gastwirth.  When studying whether women are equally represented in the top positions on the flagship law journals, they found they comprised only one-third of the officers at Yale (35%) and University of Chicago (36%). Then when mapping people from feeder schools to feeder judges, they found that women comprised just 32% of those included in the eligibility pool.[1]

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April 22, 2011

Where are all the women SCOTUS litigants?

by Angela N. Johnson

At the time Tammy Sarver, Erin Kaheny, and John Szmer wrote The Attorney Gender Gap in U.S. Supreme Court Litigation, women occupied less than a quarter of the US. district court and courts of appeals seats, just one woman sat on the Supreme Court, and only 20 percent of law school deans were women (Sarver, Kaheny and Szmer 2008). Thankfully, the current statistics reflect some improvement, with women comprising roughly 1/3 of all judgeships (including 3/9 on the U.S. Supreme Court).  However, the number of women attorneys arguing in the United States Supreme Court continues to lag and the “leaky pipeline” seems to be at fault. While one may hastily conclude that the problem plagues only those women who have an interest in litigating in the highest court of the land, a closer look reveals that this disparity impacts all women (even nonlawyers, too!)  According to the authors, “Because the Supreme Court makes policies that affect the entire nation, and the attorneys that participate in litigation before the Court, in turn, influence the justices’ decisions, the makeup of the Supreme Court Bar is of paramount importance” Id. at 239.  To investigate the gender gap, the authors collected data on all attorneys participating before the Court over the 1993-2001 terms. Moreover, the authors explore some of the possible explanations for their findings.

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April 22, 2011

A Special Interview with Justices O’Connor and Ginsburg

by Angela N. Johnson

The 2010 Women’s Conference featured an interview with trailblazers Justices Sandra Day O’Connor and Ruth Bader Ginsburg. Diane Sawyer asked the Justices a variety of questions and portions of the event were televised on ABC, which can be viewed as follows:

5-Minute Clip of Justices O’Connor and Ginsburg speaking about law school, as U.S. Supreme Court Justices, and Gendered-Judging.

11-Minute Clip of Justices O’Connor and Ginsburg, including a recorded message from Justices Sotomayor and Kagan.

These clips give wonderful insight into the view of the court from the lenses of these lady way-pavers. Law school, work experiences, and gendered judging are discussed as well as a special thank you from Justices Sotomayor and Kagan.

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April 22, 2011

Presentation on Women in the Legal Profession

by Angela N. Johnson

Click to Download: PowerPoint Presentation on Women in the Legal Profession

I have learned and accomplished a lot during my last four months of research.  I have read over 75 articles, posted to this blog more than 50 times, created a 16-page timeline of Women in the Legal Profession (with 118 source citations), and have had the privilege of presenting my findings not once, but twice. The best part is that I’m not done yet! I still have over 100 articles to read and the fact that scholars and researchers continue to shed light on women in the legal profession means I am unlikely to run out of articles to analyze anytime in the near future. In the meantime, I would like to share with you my 62-slide PowerPoint presentation on Women in the Legal Profession, which discusses women as law students, lawyers, judges, and litigants. The presentation includes data and research results that are found on this blog, as well as graphs that visually depict the information and concepts. I hope that this may be of interest to others and as always, please feel free to contact me with any questions, concerns, or suggestions.

April 15, 2011

An Experiment on Jurors’ Perceptions of Women Advocates

by Angela N. Johnson

Cartoon by Stu's Views

This article reports on an experiment conducted at a program sponsored by the ABA’s Woman Advocate Committee entitled “He Said/She Said: Jurors’ Perceptions of Women Advocates.” The program was designed to test the reactions of male and female mock jurors during two 10 minute closing arguments, both made by women attorneys using contrasting presentation styles (one aggressive, the other more fact specific).  The results were analyzed based on the jurors deliberations and careful post-experiment questioning.

Interestingly, the survey revealed that male jurors liked the aggressive approach.  Some of the women, on the other hand, viewed the aggressive approach as “scary.” Women jurors also commented on the clothing worn by the presenters, stating they found a mid-calf length skirt with a side slit slightly above the knee and a silk blazer with a high sheen “distracting” (Mahoney 1999).

After the experiment, jury trial experts spoke on establishing credibility.  While the statements given did not seem empirically tested, they are worth considering.  For example, one panelist said that jurors typically view male attorneys as more competent but that a female litigator who demonstrates her competence is viewed as having more credibility.  One way women litigators can establish credibility is to demonstrate command of the facts, law, and if appropriate, technology.  Their first “speaking roles” can demonstrate competence by making well placed objections, responding convincingly to objections or question from the Court (Mahoney 1999).  Another panelist noted that jurors take their cues from the manner in which the judge and male co-counsel treat women litigators.  This means that using a woman litigator as a “bag carrier” is risky because a juror may view the behavior as sexist and hold that against the client when weighing the evidence (Mahoney 1999). In sum, the program demonstrated that female litigators still have an initial hurdle to overcome at trial but “once jurors determine a female litigator is competent, they are more likely to accord her and her client greater credibility than an equally competent male litigator” (Mahoney 1999).


Source Citation: Mahoney, Kathleen M. “He Said/She Said: Jurors’ Perceptions of Women Advocates.” The Woman Advocate (American Bar Association Section of Litigation), 1999: 4-6.

April 15, 2011

Women Judges Advise, “Woman Up”

by Angela N. Johnson

Lose the "bow ties to look like men."

According to a panel of women judges at the ABA’s Women in Law Leadership Academy in May 2010, one of the distinctions between men and women lawyers is that “women in general lack the confidence that men seem to have in the courtroom” (Passarella 2010).  U.S. District Judge Norma Shapiro advised the group of 500 attendees that women must exude confidence even if it means faking it.  Shapiro further said that “if the attorney doesn’t have confidence in herself, neither will the judge or jury” This means women litigators must take any trace of fear out of their voices and speak so they can be heard, “You have to ‘woman up’ when those moments happen”said U.S. District Court Judge for the Northern District of Texas Barbara M.G. Lynn.

Former New York Court of Appeals Chief Judge Judith S. Kaye recalled “enduring” 21 years of private practice before taking the bench.  According to Judge Kaye, the secret is “agonizing privately.”

As far as appropriate courtroom attire for women lawyers, the panelists unanimously agreed that women often go wrong with clothing that is too short or too low cut, “The goal isn’t to be noticed by your outfit but for your argument” said Judge Lynn.  But it doesn’t have to be like the days when “women would wear these bow ties to try to look like men” adds moderator Fernande “Nan” Duffy, an associate justice of the Massachusetts Appeals Court.

Source Citation: Passarella, Gina. “Judges Give Perspective on Female Litigators.” The Legal Intelligencer, May 3, 2010.

April 15, 2011

Difference in Judicial Discourse; Value in Exploring Role of Law Clerks

by Angela N. Johnson

Maveety’s article reviews the Sonia Sotomayor confirmation hearings and the infamous “wise Latina” exchanges that prompted concern over the possibility that judges render decisions based on their gender or world view (Maveety 2010, 453).  Moreover, this article examines differing sentiments on whether women judges view cases differently.  For example, Justice O’Connor has often said “a wise old man and wise old woman will reach the same conclusion in deciding cases” Id. at 453.  The problem, as noted by Maveety, is that there is no universal definition of “wise” and that by nature, a judges’ decision-making will necessarily be influenced by past experiences.  When Justice Sotomayor later recounted her “wise Latina” statement, she explained that “by ignoring our differences as women or men of color we do a disservice both to the law and society” Id. at 454. Justice O’Connor also changed her previous “same conclusion” statement by admitting it is “helpful to the Court to have nine members of different backgrounds and experiences and, yes, even gender.  We bring different life experiences to the task, and that’s a good thing” Id. at 455-456.  Moreover, upon her retirement, Justice O’Connor expressed disappointed that her replacement was not a female, which left Justice Ginsburg the lone woman on the bench.  While Maveety does not address the Justice O’Connor’s apparent change of heart, I have to wonder about the context of these statements.  Perhaps the previous statement made by Justice O’Connor was made during the years when it was best to defend women’s inclusion on the bench by refuting any differences in the token-number appointments.  If this is so, then it would follow that in more recent years Justice O’Connor can now embrace the benefits that women bring to the bench without facing ridicule or setting-back women’s progress.

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April 15, 2011

What do we know about the influence of gender on judging?

by Angela N. Johnson

Rhode weighs various conflicting evidence on whether gender influences judging and sums up the available literature in her article, In a “Different” Voice.  She finds after reviewing the current literature on the topic, that “gender matters in certain kinds of cases, in particular discrimination cases, which is one of the reasons why diversity should matter for selecting judges” (Rhode, In a “Different” Voice: What does the research about how gender influences judging actually say? 2009).

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April 7, 2011

Women Candidates in Judicial Elections

by Angela N. Johnson

In “Women Candidates and Judicial Elections: Telling an Untold Story,” Traciel Reid discusses the barriers women experience when campaigning in state court judicial elections.  “Currently, approximately one-half of all state judges reach their state court benches by winning partisan or nonpartisan races” (Reid 2010, 465).  This begs the question, “Do aspiring women judges experience similar barriers or challenges as women running for legislative or executive office?” Id. at 465.  Reid looks critically at past regression findings which suggested that women  face little or no discrimination and that gender has a minimal effect in the judicial election process. Reid argues that the regression model fails to reveal the realities confronting women judicial candidates because previous studies have noted gender as an independent variable wherein being a woman fails to correlate with the dependent variable, the finding appears that gender has little or no bearing.  Reid takes a different approach by running regression analysis on men and women candidates separately. Her results suggest that “different forces within the electoral environment affect the campaigns of men and women and, in particular, that women must overcome specific challenges” Id. at 467.  Moreover, men have advantages that women do not have, and women encounter difficulties that men do not face. One such example from Reid’s findings is that men’s “status as incumbents helps men in funding their campaigns, whereas women incumbents receive no similar benefit.  Incumbency correlates in a statistically significant way with men’s campaign contributions.  In contrast, it has no statistically significant effect on the contributions reported by women.  Also, campaign spending (beyond a certain level) has less impact on women’s vote shares than on men’s” Id. at 467.

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April 5, 2011

1989 Article Reveals Little Change for Women in Private Practice, yet Prosecutor as a Women-Friendly Role

by Angela N. Johnson

According to Raggi’s 1989 article, women lawyers are not achieving positions of professional prominence in the private sector “in nearly the percentages that their numbers and class rank would indicate” (Raggi 1989, 975).  The current inequality of women lawyers in the private sector is similar to Raggi’s article, written back in 1989.  It is discouraging to realize not much has changed for women lawyers in the private sector.  However, Raggi reports in 1989 that women were well-represented as the best and brightest prosecuting attorneys in New York.  Women achieve equality in prosecuting? This is astonishing when taken into account the need for prosecutors to be among the toughest and most aggressive lawyers who must prove themselves to their “clients,” (the government investigators and police).  Though Raggi’s article is mostly anecdotal (and written 22 years ago) it provides a great snapshot of at least one woman’s experience as a prosecutor. For example, Raggi notes that when she left the prosecutor’s office in 1986, every unit in her office had been, at one time or another, headed by a woman Id. at 976.  Additionally, during her years as a prosecutor, she “encountered virtually no gender discrimination” Id. at 975. Why might this be?  Raggi credits the fact the employer is the government and required to enforce a wide variety of laws enacted to ensure equal opportunity for women.  Many women lawyers turn to prosecuting to avoid the less-than-welcoming environments in other areas of practice.

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