Mark Sherman, AP, October 28, 2007
Coming soon to the Supreme Court: a rare appearance by a black lawyer. More than a year has passed since a black lawyer in private practice stood at the lectern in the elegant courtroom and spoke the traditional opening line, “Mr. Chief Justice and may it please the court.”
Drew Days III, solicitor general in the Clinton administration, planned on Monday to argue a case on behalf of a shuttered brokerage firm that is seeking to recover $4.5 million in losses. Days, who splits his time between the Morrison & Foerster firm and Yale Law School, is one of the few black lawyers who regularly represent clients at the high court.
“Not many lawyers of color end up in the Supreme Court and most of those who do are in the area of civil rights litigation,” said Robert Harris, who argued once before the court in his career as a lawyer for Pacific Gas and Electric Co.
Although the Supreme Court does not keep racial breakdowns of lawyers who argue before the justices, records indicate that the first black to appear before the justices was J. Alexander Chiles in 1910.
Several factors account for the dearth of minorities at the court: 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.
Days said he, too, has trouble attracting black lawyers to his firm. He recounted how he lost out to a philanthropic foundation over the services of a former clerk for a Supreme Court justice.
Two recent studies point up the trends. Of 46 Washington law offices with more than 100 attorneys, 28 reported that less than 3 percent of their partners are black. Seven firms had no black partners, according to a report by Building a Better Legal Profession, a group of law students who compiled data provided by the firms.
Morrison & Foerster’s Washington office, where Days works, has just two black partners, although that placed the firm fourth in the Washington rankings at 5.6 percent. Blacks are better represented among associates at these firms.
Two-thirds of minority lawyers leave their firms within the first four years of practice, generally too short a period in which to make partner, the American Bar Association has said.
Nationally, about 5 percent of law firm partners are black, a number that has crept higher over the past 30 years. Partners typically share in firms’ profits or losses, while associates are employees.
At the same time, a fairly small circle of lawyers controls more and more of the court’s caseload even as the number of cases the justices accept is going down, Georgetown University law professor Richard Lazarus argues in a study.
This “increasing domination is evidenced by the rising percentage of oral advocates appearing more than once within a single term, a feat most typically accomplished only by attorneys within the Solicitor General’s Office,” Lazarus said. The study will be published soon in the Georgetown University Law Journal.