Gender Disparity In Appellate Practice (UPDATE)

This post addresses the possibility of a significant disparity between the number of men and women practicing appellate law at a high level. 

It’s a pretty well-known fact that very few of the top appellate advocates in this country are women. These include Kathleen Sullivan, Maureen Mahoney, Lisa Blatt, Patricia Millett (now a judge on the D.C. Circuit), and a few up-and-comers like Paul Clement’s protégé and law partner Erin Murphy. (See this post over at Daily Writ for a list of the top 10 female SCOTUS advocates by number of arguments). If you listed the 10 most prominent SCOTUS advocates since 2000 by number of arguments, only a single woman--Millett--would make the cut. 

What are the odds of this trend turning around? I figure that the best way to determine this is to consider the following factors: (1) The percentage of women currently in the SG's Office; (2) the percentage of women in high-value/SCOTUS clerkships; and (3) the percentage of women in notable law firm appellate groups. 

If I get the chance, I'll look into the first of these two categories. (It’s commonsense that women with SCOTUS clerkships or SG’s Office experience will have little difficulty landing appellate positions in private practice. Melissa Arbus Shelly just left the SG’s to join the appellate partnership at Latham & Watkins, for instance). For now, I've broken down the raw numbers and percentages of women practicing in the top appellate firms. Here are some highlights. 

·   According to a 2012 study by the National Association of Women Lawyers, the gender-breakdown at AmLaw 200 firms is: equity partners = 15% women; non-equity partners = 26% women; counsel = 34% women; and associates = 46% women. Amongst Hot List firms, women constitute 23% of the appellate partnership (within the expected range of firmwide numbers).*

·   But women constitute only 28% of counsel and associates, well below the expected range. (The NAWL study didn’t provide a percentage of non-partner women, but I assume it is approximately 40%, when you consider that associates vastly outnumber of-counsel). This suggests that the future is bleak for women among appellate partnerships. The number/percentage of female partners matters for purposes of my study, since partners give the overwhelming bulk of appellate arguments.

·   The most “women-friendly” Hot List appellate groups are Baker Botts (47% women overall) and Hogan Lovells (44%). The boys’ clubs include Sullivan & Cromwell (9%) and Mayer Brown (17%). If you’re a woman interested in appellate law, you might want to avoid those last two. Unfortunately for you, Mayer Brown is one of the very best appellate practices, so you’ll be missing out on all those good cases.

(A note on methodology: Using the 2014 National Law Journal's "Appellate Hot List," the appellate practice group-pages of those law firm websites, a calculator, and a spreadsheet, I deduced the total number of appellate lawyers; partners; women; and woman partners, and did simple math to arrive at the percentage of appellate women and appellate woman partners firmwide. You should double-check my numbers; I have little faith in my own ability to add, subtract, and divide, even with the assistance of Windows’s pre-loaded calculator. Also, keep in mind that the appellate practice group-pages of these law firms simply list all lawyers who have “appellate practice” as one of their practice areas; that’s no guarantee that all of the lawyers on the group-page spend a majority of their billable hours on appellate matters. It’s nonetheless a good starting point.)

And here's the complete breakdown:

Breakdown of Appellate Gender In NLJ's "Appellate Hot List" Firms

Firm	Appellate Lawyers	Appellate Partners	Appellate Women (% attorneys)	Appellate Woman Partners (% partners)
Akin Gump	35	13	7 (20%)	0 (0%)
Arnold & Porter	27	13	7 (26%)	2 (15%)
Baker Botts	19	11	9 (47%)	4 (36%)
Fish & Richardson	34	26	12 (35%)	7 (27%)
Gibson Dunn	132	63	34 (26%)	12 (19%)
Hogan Lovells	61	21	27 (44%)	6 (29%)
Jenner & Block	15	9	4 (27%)	2 (22%)
Jones Day	75	32	19 (25%)	7 (22%)
Kirkland & Ellis	83	59	22 (27%)	11 (19%)
Latham & Watkins	71	32	22 (31%)	9 (28%)
Mayer Brown	52	31	9 (17%)	5 (16%)
McDermott Will & Emery	36	31	9 (25%)	7 (23%)
Morrison & Foerster	38	24	11 (29%)	5 (21%)
Orrick	24	7	7 (29%)	2 (29%)
Quinn Emanuel	N/A	26	N/A	9 (35%)
Sidley Austin	75	40	21 (28%)	10 (25%)
Sullivan & Cromwell	43	32	4 (9%)	4 (12%)
Vinson & Elkins	20	10	6 (30%)	3 (30%)
Wilmer Hale	55	29	18 (33%)	6 (21%)
Winston & Strawn	39	18	9 (23%)	4 (22%)
Totals	934	501	257 (28%)	115 (23%)

This list could be further refined by breaking down the figures for the firm offices that tend to handle the most high-profile appellate matters, like the D.C. and N.Y.C. offices, or by calculating the figures for broader firm practice areas like "litigation" and "corporate/transactional." The more available data, the better we might predict the reasons that fewer women appear in appellate practice than in law firms firmwide. That can be a project for another day.

*I recognize that comparing the Hot List firms, which are the highest echelon of AmLaw firms, with all AmLaw 200 firms might not be the soundest comparison. It's possible that Hot List firms have lower percentages of female partners and non-partners than the average AmLaw 200 firm. But compiling the data on Hot List firmwide-women would be an arduous task, given that I'd have to look at each firm's NALP forms for each office. If somebody has a better source for this data, leave a comment.

**Quinn Emanuel's appellate website only lists appellate partners. Because I didn't have the raw data for non-partners, I left Quinn out of the "Totals" category.

UPDATE: This somewhat-dated study (2008) by the ABA found that, in the preceding 14 terms, only 19 to 40 percent of SCOTUS clerks were women.