As a new judge on the U.S. Court of Appeals for the D.C. Circuit in the early 1980s, U.S. Supreme Court Justice Ruth Bader Ginsburg recalled asking a question during oral arguments early in her tenure. The lawyer replied, "Well, Judge Wald...," confusing her with the only other woman on the court at the time, now-retired Judge Patricia Wald.
"The idea of two was too much to contemplate," Ginsburg said, earning laughs as she told the story during a panel discussion yesterday on women and the District of Columbia's federal courts. She added she was also referred to as "Justice O'Connor" after joining the Supreme Court in 1993, mixing her up with now-retired Justice Sandra Day O'Connor.
Ginsburg said the growing number of women judges in courts across the country today, notably her fellow Supreme Court Justices Elena Kagan and Sonia Sotomayor, made her "tremendously optimistic" about the future. "We are no longer one-at-a-time curiosities," she said, adding that having multiple women on the Supreme Court was "exhilarating" and offered "the right picture for the children who troop in and out."
Whenever she was asked how many women justices would be enough, she said her response was, “When there are nine.”
Wald, a panel member and now a member of the Privacy and Civil Liberties Oversight Board, said she received a warm reception from the other D.C. Circuit judges when she joined the bench in 1979 but felt she was under more scrutiny because of her gender when she became chief judge in 1986. She said she’d like to see more women in court leadership, including a first female chief justice of the Supreme Court.
Wiley Rein partner Helgi Walker, the youngest member of the panel, said she hadn’t encountered the same type of overt sexism as the other panelists. However, as a member of the White House counsel’s office in the early 2000s, she remembered fielding an objection to the administration’s plan to name a woman to an open federal court seat in a rural district (she declined to name the district). She said that reaction only spurred the office to push for the woman nominee, who was later confirmed.
Panelist U.S. District Judge Gladys Kessler said women had made significant progress in the courts, but she lamented the lack of women arguing major civil cases.
“You do not see women in court in the big money-making cases,” she said. At most, she said she saw women lawyers sitting at the counsel table-especially, she added, if the lawyers knew they were appearing before a woman judge-but said there were still too many barriers to women taking on senior positions in private practice.
The lone man on the panel, U.S. District Chief Judge Royce Lamberth, agreed with Kessler that it was less common to see women senior partners arguing the big cases. Panelist Michele Roberts, a veteran defense lawyer and partner at Skadden, Arps, Slate, Meagher & Flom, jumped in to let Lamberth know, “I’m working on that, judge.”
Roberts said she developed a “thick skin” as a young public defender in District of Columbia Superior Court, where clients would get upset when she was introduced as their lawyer and clerks would ask if she was looking for her lawyer when she came into a courtroom. Roberts said she could tell opposing counsel would often assume she was incompetent. “I tried to imagine my opponents asleep and I’d be up working,” she said.
Roberts said there were times when she knew she wasn’t hired because she was a woman, but usually she thought her gender was an advantage. With more women serving as corporate in-house counsel, Roberts said, the push for gender equality at law firms was increasingly client-driven.
The former longtime clerk of the D.C. federal trial court, Nancy Mayer-Whittington, said being in charge allowed her to push for changes to barriers that had prevented women from advancing within court administration, from inflexible time schedules to rigid sick leave policies.
Kessler advocated for a culture change at law firms that would make it possible for all lawyers, not just women, to have a healthy work-life balance. Without that change, she said, lawyers would continue to flee after working long enough to pay off law school loans.
“I don’t think we have reached the end of the road,” she said.
The standing room only event—several attendees sat in the aisles of the E. Barrett Prettyman U.S. Courthouse’s ceremonial courtroom—was hosted by the Historical Society of the D.C. Circuit. The discussion was moderated by Stanford Law School Professor Barbara Babcock.
National Law Journal photo by Diego M. Radzinschi. From left, Helgi Walker, Nancy Mayer-Whittington, Judge Patricia Wald, Justice Ruth Bader Ginsburg, Chief Judge Royce Lamberth, Judge Gladys Kessler and Michele Roberts.