Page 42 - FDCC Insights Spring 2022

Tillman Breckenridge
Perhaps Law’s Least Diverse Practice Area - Appellate
By Tillman Breckenridge
A few years ago, I had the displeasure of sitting in the Supreme Court Bar section for the oral argument in Fisher v. the University of Texas. In so many ways, it was a stark reminder that the problem with the lack of diversity in the legal profession is even worse in the appellate and Supreme Court realm. As another round of university affirmative action cases are finding their way up the appellate ladder,
I am brought back to that moment. It becomes easier for a Justice to express— without significant retort—the theory that “Blacks” are disserved by being admitted to elite schools when none of the eight or so people at counsel table
in front of the Court appear to be ethnic minorities. It becomes easier when the Court has not seen an African-American argue in years. And it becomes easier when the Court has not seen an African-American at a private law firm argue—as best I can tell—in over a decade.
Appellate practice might be the least ethnically diverse of a profession that has
a universal diversity problem. Indeed, in the Edward Coke Appellate Inn of Court—an organization of about 200 D.C. appellate and Supreme Court lawyers, I was the only African-American member for about five years, until a couple
of recent additions. The numbers are not significantly better nationally, nor
are they significantly better for Latinos. Thankfully, at least women have had a measure of success, both nationally, and in D.C. For the first time, the office of the Solicitor General of the United States had more women than men in 2016. The pipeline is strong for women, and it is great to see that progress. Still, they are underrepresented in Supreme Court arguments, but there is strong hope that this will change as the male-dominated top rung of Supreme Court practitioners retires, and that slate of former Assistants to the Solicitor General takes the reins.
The pipeline is very weak for ethnic minorities, and we must improve it. The reasons for the pipeline’s weakness are myriad, but there are a few particular reasons that readers of this article can take an active part in resolving:
I believe the biggest reason for the lack of diversity in appellate and Supreme Court practice is the clerkship problem: having the right clerkship is a barrier to entry, particularly in D.C., but also around the country. The box almost always needs to be checked for a law graduate to be considered for appellate practice, and it disqualifies some very talented people because clerkships are skewed to one particular race.
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