//  2/5/18  //  Commentary

In his first year in office, President Trump has catapulted dozens of attorneys to the peaks of their careers. Those he has tapped for the bench and to run U.S. Attorneys’ Offices have a lot in common: they have had prestigious clerkships, they have achieved political and local influence, and they are mostly white and mostly male. In this post, we’re going to focus on the disparities between the number of men and the number of women appointed to these positions.  The stark disparities are startling to see in print, and will have consequences for the next generation of female attorneys. Women in power beget more women in power. A dearth of female judges, U.S. attorneys, and attorneys in other positions in the executive branch (such as the Office of Solicitor General) could lead to less women in federal clerkships, positions in government, and—because presidential appointees often go on the highest positions in the private sector—at law firms and corporate general counsel offices as well.

First, a look at the (rather alarming) numbers. During his first year in office, Trump has had confirmed a record number of judges—twelve—to the courts of appeals, and with Judge Stras’s confirmation, Trump has now had thirteen judges confirmed to the courts of appeals. Only three of the judges are women. One more woman has been nominated and is waiting to be confirmed, as are six more men. At the district court level, only one woman has been confirmed. Of those nominated to the district court but not yet confirmed (a fairly significant number of people, 44), 70% are men. Lumping appellate and district court nominees together, about three-quarters of President Trump’s nominees to the federal courts are men. President Obama, who made about half the number of appointments (32) to the appellate and district courts during his first year, achieved complete gender parity among his nominees.  President Obama also made tremendous strides in improving diversity on the bench throughout his presidency, including adding Justices Sotomayor and Kagan to the Supreme Court. President Trump also chose a Supreme Court Justice during his first year in office. It wasn’t a woman.

The gender disparity among the top attorneys at U.S. Attorneys’ Offices across the country is even more dramatic. Of the 93 U.S. Attorneys’ Offices, only 10 are run by women. Only three of the women, however, are Trump’s chosen appointees; the others are serving in interim positions. This does not mean that Trump has not been appointing U.S. Attorneys to replace President Obama’s appointees—he has made appointments in more than half of the offices; it’s just that 95% of the attorneys he selected are men.  (You can see a visual of how pale and male Trump’s nominees are here.) Trump still has to fill 35 offices with a presidential appointee, so there is a chance that Trump could improve this abysmal percentage by appointing more women going forward.  We’re sure he’ll do so because, as he’s told us, no one respects women more than he does.

Gender disparities in the Trump administration seem to have leaked into non-political offices as well. Reported hires at the Office of the Solicitor General indicate a similar pattern—5 of the 7 recent additions to the office have been men, and several women have recently left the office. The wider effect of having fewer women in an office like the OSG—considered (at least until now) a golden ticket in a lawyer’s career—serves as an example of how fewer women in prestigious positions can harm the profession overall.

The wide-ranging gender disparities will cause damage in several different ways.  First, the people who are in charge of making laws, interpreting laws, or crafting legal arguments could affect what laws are made, how laws are interpreted, and what arguments are selected.  Writing at In Justice Today about the Tenth Circuit Conference’s decision to host an all white male panel on qualified immunity, Lee Kovarsky observed that:

Diversity is too often invoked as an interest disembodied from policy, but there is a direct line between the diversity of legal discourse and the legal rules that such discourse produces. Yes, diversity is desirable for lots of moral reasons — diversity at the upper echelons of the legal profession remains a national embarrassment and, good god, the way academic panels get populated is straight out of the 1950s — but what gets lost is that diversity is also desirable because it produces good law.

Take this example: Senator Claire Mccaskill recently revealed how her male boss in the prosecutor’s office told her she couldn’t take a rape case to trial because the victim had an IUD, which was an “invitation to assault.”  Or another example: Several writers have pondered whether the fact that many of the men in media who shaped our political narratives, our understanding of Hillary Clinton, and the 2016 election turned out to be predators affected the stories that were (and were not) told, and how the stories were (or were not) told.  Or another example: Sam Sankar raised questions about one of Judge Kozinski’s opinions on sexual harassment.  The general point is this: What are we losing when women and people of color are not part of our most powerful legal institutions?  

There are, to be sure, serious questions about whether people should choose to serve in the Trump administration (reasonable people might say, at this point, that they should not).  There are also serious questions about how much good good people might be able to do when they are there.  But that’s not a concern for nominees to the federal courts.  And even if “doing good” or “mitigating harm” isn’t possible for non-judicial nominees, there are several other, independent concerns with the Trump administration’s staffing choices.

Second, all of the staffing choices solidify one of the more pernicious ways that sex discrimination occurs—the disproportionate selection of men normalizes men as authorities; it cements them as leaders; and it makes them seem like the highest achievers in our profession.  It’s only natural when all (or almost all) of the authority figures, and all (or almost all) of the most well-credentialed people in the field look a certain way that people who also look that way start to seem more authoritative.  The screaming disparities also make things more difficult on women in a variety of ways.  Women’s accomplishments will be questioned (how did you get here—through tokenism, sex, or something else)?  The disparities may cause some women to question whether they have the chops to succeed when so few women do, and to feel (not incorrectly!) that the odds are against them, which may influence the choices they make.  By solidifying even a subconscious association between being male and having gravitas, the staffing choices perpetuate a system in which male lawyers will, by virtue of being male, have a reserve of authority to work with.

Third, all of the staffing choices will create real problems down the line.  The positions that the administration is staffing primarily with men also happen to be positions that serve as pipelines, and stepping points for further career opportunities.  Supreme Court clerkships serve as prerequisites for positions in the Solicitor General’s office.  A positions in the Solicitor General’s office makes it easier to become a regular member of the Supreme Court bar.  A position in the U.S. Attorney's Office makes it easier to become a partner in a white collar practice; it may also make it easier to become a judge.  And apart from serving as pipelines, the positions also serve as platforms:  It’s easier to comment on (or to get people to listen to your comments on) the Supreme Court if you’ve clerked there (and only 34% of all clerks since 2005 have been women); it’s easier to comment on (or to get people to listen to your comments on) the U.S. Attorneys’ Offices if you’ve worked there; and so on.  Trump and his administration are crowding out women’s voices by elevating men’s.

Fourth, these staffing choices are creating networks with considerable power and access that also happen to be overwhelmingly male.  That’s a problem because having access to those kinds of networks is helpful to building one’s career.  If you want to hold a panel with a U.S. Attorney on it, you will need access to the group of predominantly men who are U.S. Attorneys.  If you want to have an event that features a judge, or if you want to help a student get a clerkship or an externship with a federal judge, you will be dependent on a group of people who are predominantly male.  If you want to hold moots with people who have been in the Solicitor General’s office, you will need to draw from a pool of people that has now skewed male.  (The article about the women who left the Solicitor General’s office detailed the professional network they had built, and how they were able to support one another’s careers.)  And so on.  It’s easier to gain power and connections when you are a part of networks that have power and have connections and can offer some of that power and some of those connections to you.  It’s harder to gain power and connections when you’re only allowed in some of those networks, and only some of the time.

The Trump administration has forged networks of power and access that are predominantly male, which facilitates the diminishment and devaluation of women in our profession.  And we will be seeing the consequences of that for decades.  





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