Feminist Fighters: Ruth Bader Ginsburg, Judith Kaye, and the Past, Present and Future of Women in Litigation
11.5.2020
The legal community, the political sphere, and the world at large were shocked and saddened to learn of the passing of Supreme Court Justice Ruth Bader Ginsburg, who in her 87 years advocated for the civil rights of the disenfranchised, broke barriers for women, and inspired countless individuals to use their voice for good. On September 18, 2020, Ginsburg passed away at her home in Washington, D.C. from complications of metastatic pancreatic cancer,[1] and has left many things in her wake: a lifelong legacy of dedication to justice, a highly charged Senate effort to fill the now vacant seat with a nominee, and perhaps most importantly, generations of women in the legal profession who are thankful for the path Ginsburg so fearlessly paved for them.
Yet there is one pioneering woman in law who was also known for breaking down barriers and who came even before Ginsburg herself. The late Judith Kaye (1938–2016), the first woman to serve as chief judge, the highest judicial office in New York State, and the longest-serving chief judge in New York history, paved the way for many female attorneys who came after her, including Ginsburg. In fact, Ginsburg and Kaye are more closely linked than others might realize – in 1993, then-president Bill Clinton approached Kaye to become the Attorney General of the United States, but she ultimately declined; later that same year, Kaye rose to the top of Clinton’s list of potential candidates for a vacancy on the Supreme Court. She declined this opportunity also, preferring to continue serving as a judge in New York, which ultimately left the path clear for Ginsburg to take the seat, changing the trajectory of her career and ultimate legacy.[2]
And a groundbreaking legacy it was: in nearly every one of the many roles she filled throughout her eventful life, Ginsburg managed to break down cultural and societal norms both for herself and many other women. In law school, she was just one of nine female students in a class of over 500 pupils.[3] Later on in her career, she became the first female tenured professor at Columbia Law School.[4] As a litigator, she won a landmark five out of six gender equality cases that advanced equal rights for women.[5] As a justice, she was the second woman to serve on the U.S. Supreme Court at the time. And finally, she managed to set precedent even in the more intimate job of mother and wife, deciding to become a working mother and an equal partner in a modern marriage in the 1960s at a very different time for women.
In fact, much has changed for women in the law in the decades since Justice Ginsburg and Judge Kaye began their illustrious careers. In 2020, one in three lawyers is a woman,[6] the percentage of female associates in private law firms is 46%,[7] and the share of women in the legal profession overall is 38%.[8] Yet years ago, the numbers of women in the legal landscape told a very different story – in the 1960s, fewer than 1 in 25 lawyers were women,[9] the percentage of female lawyers in the U.S. was approximately 5%,[10] and law firms in general were virtually unwilling to hire women, no matter how well qualified.[11]
Such difficulty is something with which Justice Ginsburg was all too familiar. She enrolled at Harvard Law School in the fall of 1956 and transferred to Columbia Law School, where she became the first woman to be on two major law reviews (the Harvard Law Review and Columbia Law Review), tied for first in her class, and excelled in her studies, even while being a full-time mother to her young daughter and helping her husband fight his battle with cancer, from which he recovered. Despite all of these achievements, upon graduation Justice Ginsburg encountered extreme hardship in finding employment, with nearly every major law firm in New York unwilling to hire her because she was a woman and had a family. In her own words, in a 2016 interview reflecting on her career, she summed up the discrimination at the time: “I had three strikes against me: one, I was Jewish. Two, I was a woman. But the killer was I was a mother of a four-year-old child.”[12]
Despite this, Ginsburg remained undeterred. She forged ahead in her career, obtained a job as a law clerk for a federal judge in New York and eventually also taught at Columbia Law School, where she became the first tenured woman on the faculty. She continued to make history and strides for fellow women at each step of her career: first as an attorney at the American Civil Liberties Union (ACLU), where she won the aforementioned five out of six gender discrimination cases before the Supreme Court between 1973 and 1976, fighting for issues such as equal benefits for both genders and enabling women to serve on a jury.[13] Then, once she was nominated by President Clinton to the Supreme Court and confirmed by the Senate on June 22, 1993, she was only the second woman to serve on the Court and voiced her opinion loudly on cases such as United States v. Virginia, in which the Court struck down a long-standing male-only admission policy at the Virginia Military Institute.[14] Similarly, Kaye achieved many firsts as well: she was the first woman to serve as New York’s chief judge, she held that post longer than anyone else (for 15 years until her retirement in 2008), and was known for streamlining New York jury practices and establishing specialized courts to focus on issues including domestic violence and mental health.[15]
Ruth Bader Ginsburg and Judith Kaye undoubtedly helped shape and improve the lives of women all over the world, and they also paved the way for female attorneys across this country. Yet despite the great progress and the indelible legacy both women have left behind, Ginsburg’s passing has also caused many to pause and look at the current state of women in the legal community, particularly in the world of litigation.
Even now, with all of the advancements made for female advocates (women make up 50% of the student population in many law schools, approximately 35% of law school deans are women, and women make up 38% of the legal profession in general), there is still a large absence of women in the field of litigation specifically.[16] In 2016, it was revealed that, in the U.S., women account for “only 34% of attorneys in private practice, 20.2% of partners, 17% of equity partners, 4% of managing partners at the 200 largest law firms, and even a smaller percentage of lead counsel and first-chair trial attorneys.”[17] While it is true we have made significant progress since the days of Ginsburg’s and Kaye’s early careers, it is also clear we still have a long way to go. Indeed, even in 2020, many women are still not strongly represented in litigation proceedings – in fact, even this author has often found herself as the only female in the room at depositions and court conferences.
The Pathway for Women Litigators
How did the path for women in litigation begin, and how has it led us to this point? In 1869, Arabella Mansfield became the first female lawyer in the United States, and years later, in 1918, an attorney named Clara Shortridge Foltz, the first female attorney in California, was chastised by the district attorney of San Francisco, who in his closing argument stated to the jury: “She is a woman, she cannot be expected to reason . . . this young woman will lead you by her sympathetic presentation of this case to violate your oaths and let a guilty man go free.”[18] The difficulties that female attorneys faced only continued, and in the 1950s and 1960s, many highly qualified women such as Justice Kaye, Justice Ginsburg and even Justice Ginsburg’s former colleague, Sandra Day O‘Connor, were unable to land jobs.[19] In an article in the Harvard Law Record that was published in December 1963 titled “Women Unwanted,” the author shared that the reasons such law firms had for not wanting to recruit female candidates were that women “ . . . can’t keep up the pace,” had “. . . a bad relationship with the courts,” and that people were afraid they would succumb to “emotional outbursts.”[20] This attitude began to change slowly in the 1970s, thanks in part to gender equality activism and the women’s liberation movement, which began taking center stage in the U.S., and to the striking down of discriminatory laws by advocates such as Justice Ginsburg.
Yet with all of the developments for women in the law within the past several decades, why is there still such a lack of women in litigation today? First, many people chalk it up to gender bias. As an example, oftentimes female litigators are still told by clients that they prefer having a man as lead trial counsel; they are treated in a condescending manner by male judges, opposing counsel, or other members of the court; and they still encounter unfavorable opinions from their juries.[21] Second, another reason women cite is the discrimination they still sometimes face by employers for being mothers and attempting to balance preparation for lengthy and time-consuming trials with family obligations. One female attorney put it succinctly: “I was passed over for partner because I had a child. The two male attorneys who were hired at the exact same time as me, who had comparable prior experience, and the same job responsibilities were made partner but I was not. When I asked why, I was told it was because I had given birth to a child.”[22] Third, authors have found that in certain practice areas, including family law, immigration, and education, there is a greater proportion of female attorneys, yet areas such as banking, corporate, or litigation had the lowest number of female attorneys. It is likely that when women face intense barriers to success in these traditionally high-prestige areas, many of them move to other practice areas.[23]
So what can be done about this? Many experts recommend eradicating bias not through intimidation but by education: implementing diversity training at firms and companies, requiring employees to undergo mandatory programs regarding this issue, and encouraging a more inclusive work environment are examples of steps in the right direction. Another recommendation: women should have more chances for client development and opportunities to be trained in first-chair trial work. Another suggestion that is becoming more widely practiced is offering mentorship to young associates starting out in their careers and seeking to succeed as litigators. Having more senior female partners and supervisors who can help guide, instruct, and counsel younger women lawyers can only help in fostering an environment where those attorneys are primed to succeed, and hopefully they can continue that mentorship tradition with the next slew of hopeful litigators.[24]
Many women in the legal community seem collectively intent on one thing – the only way to foster a sphere of success for female litigators is to push forward with solutions, as their way to continue and to honor the “fighting feminists” of an earlier time. At the time of this writing, Judge Amy Coney Barrett has been confirmed as Ruth Bader Ginsburg’s successor on the Supreme Court bench. It remains to be seen how Judge Barrett will vote on issues ranging from reproductive rights to health care access, because there is no way to predict with certainty how any justice may rule in key cases until those matters come before the Court. Yet one thing remains certain – many female advocates, attorneys, and jurists will continue to work tirelessly on the causes they commit to and abide by one of Justice Ginsburg’s most significant quotes: “Fight for the things that you care about, but do it in a way that will lead others to join you.”[25]
Elizabeth Vulaj is an attorney at Barclay Damon LLP, admitted to practice in New York and New Jersey, with prior articles published in the NYSBA Journal, Law360, and Bloomberg Law. She practices extensively in commercial litigation and intellectual property law and holds a J.D. from CUNY School of Law, as well as an M.A. in journalism from New York University and a B.A. in journalism from SUNY Purchase.
[1]. Linda Greenhouse, Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, Is Dead at 87, N.Y Times, Sept. 18, 2020, https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html.
[2]. Steven C. Krane, Oral History: Judith Smith Kaye, Historical Society of the New York State Courts, http://courts.state.ny.us/history/legal-history-new-york/oral-histories/oral-histories-kaye.html.
[3]. Nina Totenberg, Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87, Nat’l Public Radio, Sept. 18, 2020, https://www.npr.org/2020/09/18/100306972/justice-ruth-bader-ginsburg-champion-of-gender-equality-dies-at-87.
[4]. In Memoriam: Ruth Bader Ginsburg ’59, Columbia Law School, Sept. 18, 2020, https://www.law.columbia.edu/news/archive/memoriam-ruth-bader-ginsburg-59.
[5]. Miriam Berg, Thank You, RBG, Planned Parenthood Action Fund, Sept. 20, 2020, https://www.plannedparenthoodaction.org/blog/ruth-bader-ginsburg-v-the-patriarchy.
[6]. Jennifer Cheeseman Day, More Than 1 in 3 Lawyers Are Women, U.S. Census Bureau, May 8, 2018, https://www.census.gov/library/stories/2018/05/women-lawyers.html.
[7]. Women in law firms, McKinsey & Co., Oct. 2017, https://www.mckinsey.com/~/media/mckinsey/featured%20insights/gender%20equality/women%20in%20law%20firms/women-in-law-firms-final-103017.ashx.
[8]. A Current Glance at Women in the Law, Am. Bar Ass’n Comm’n on Women in the Profession, April 2019, https://www.americanbar.org/content/dam/aba/administrative/women/current_glance_2019.pdf.
[9]. Cheeseman Day, supra note 6.
[10]. Id..
[11]. Jeff Bell, ‘We don’t hire girls’: Veteran female attorney reflects on law in the 1960s, Columbis Business First, May 4, 2017, https://www.bizjournals.com/columbus/news/2017/05/04/we-don-t-hire-girls-veteran-female-attorney.html.
[12].Ashley Wilson-Rew, 8 RBG Quotes Every Law Student Can Learn From, Univ. of Buffalo School of Law Blog, June 6, 2019, https://www.law.buffalo.edu/blog/8-rbg-quotes-every-law-student-can-learn-from.html.
[13]. Anthony D. Romero, In Memory of Justice Ruth Bader Ginsburg (1933-2020), ACLU, Sept. 19, 2020, https://www.aclu.org/news/civil-liberties/in-memory-of-justice-ruth-bader-ginsburg-1933-2020/.
[14]. 518 U.S. 515 (1996).
[15]. In Memoriam: Judith Kaye ’62, 1938-2016, N.Y. Univ. Law School, Jan. 7, 2016, https://www.law.nyu.edu/news/memoriam-judith-kaye.
[16]. A Current Glance at Women in the Law, Am. Bar Ass’n Comm’n on Women in the Profession, supra note 8.
[17]. Connie Lee, Gender Bias in the Courtroom: Combating Implicit Bias Against Women Trial Attorneys and Litigators, 22 Cardozo J. of L. & Gender 229 (2016), https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1054&context=student_pubs.
[18]. Id..
[19]. Jake Holland, Ginsburg ‘Found Another Way’ After Law Firm Rejections, Bloomberg News, July 2, 2019, https://news.bloomberglaw.com/us-law-week/ginsburg-found-another-way-after-law-firm-rejections.
[20]. Lee, supra note 17..
[21]. Id..
[22]. You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession, Am. Bar Ass’n Comm’n on Women in the Profession and Minority Corp. Counsel Ass’n, Feb. 13, 2019.
[23]. Id.
[25]. Alanna Vagianos, Ruth Bader Ginsburg Tells Young Women: ‘Fight For The Things You Care About’, Huffington Post, June 2, 2015, https://www.huffpost.com/entry/ruth-bader-ginsburg-fight-for-the-things-you-care-about_n_7492630.
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