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Diversity in the Profession - and the Impact on the Supreme Court

News today includes not just one, but two stories dealing with diversity in the legal profession.  This story, Coming soon to the Supreme Court: a rare appearance by a black lawyer reports that an upcoming appearance before the US Supreme Court by Drew Days III, a former solicitor general in the Clinton administration, will mark the first appearance of an African-American before the court in more than a year.  Initially, the rarity of African-Americans surprised me, after all, I'd always regarded former Justice Thurgood Marshall as one of the Court's most impressive advocates.  But according to the story, even in the 1940s and 1950s, when Marshall appeared before the court, he was unique.

So what accounts for the dearth of minorities at the court?  The reasons from the article include:

continuing problems in recruiting and retaining blacks and other minorities at the top law firms; the rise of a small group of lawyers who focus on Supreme Court cases; the decline in civil rights cases that make it to the high court; and the court's dwindling caseload.

In my mind, perhaps the biggest factor that accounts for under-representation of black lawyers at the court is the rise of Supreme Court specialists, a phenomenon described in this piece by Tony Mauro. Mauro covers research by Richard Lazarus, who found that an increasing percentage of cases brought to the court come from "repeat practitioners," i.e., lawyers with multiple appearances before the court.  (Lazarus shares more of his research on the success of Supreme Court experts at Volokh, which raises questions for another post).  And with the exception of lawyers in the Solicitors' Office, the Supreme Court experts often work for large firms, where minority representation is low.


But minority representation won't remain low, if a group of Stanford Law students can effect change.  According to this article, the students who comprise the Building a Better Legal Profession, are handing out “diversity report cards” to the big law firms, ranking them by how many female, minority and gay lawyers they have.  According to Professor Michele Landis Dauber, adviser to the project, "many of the firms have atrocious, appalling records on diversity."  The theory behind the report cards is that they will highlight for students those firms that are progressive and those that are not.  And if elite students decide to spurn less diverse firms in favor of those with more progressive policies, the firms will have no choice but to change their ways, or lose quality candidates.  The article notes one example of the report cards working:  apparently a Stanford 2L (a white male) turned down a firm when he saw that it received an 'F' on diversity.

So while this law student initiative might, in the long run help cure the problem of diversity at the Supreme Court (by ensuring a larger minority representation at large firms that handle Supreme Court cases), the growing consolidation of the Supreme Court bar still troubles me - as much or more than the lack of diversity.  I realize that in practice before lower level courts, connections and pedigree matter.  But I'd always thought that it was different before the Supremes; that individual litigants and their solo or small firm attorneys had as much of a shot at justice at the Court as large corporations like Exxon.  Solving racial diversity is one thing, addressing and ensuring the diversity of attorneys who practice before the Supreme Court is a much difficult problem.

Posted by Carolyn Elefant on October 29, 2007 at 05:59 PM | Permalink | Comments (1)


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