It was an odd scene at last Thursday’s confirmation hearing. As the Senate Judiciary Committee held a special session to deal with late-breaking sexual assault allegations against Supreme Court nominee Brett Kavenaugh, the chair brought in a pinch hitter to handle the questioning on behalf of Republican members of the Committee. They turned to Arizona prosecutor Rachel Mitchell, chief of the special victims division of the Maricopa County Attorney’s Office, who Senate Majority Leader Mitch McConnell called the Committee’s “female assistant.” The majority’s official rationale was that they wanted an experienced sex-crimes prosecutor who would infuse the proceeding with professionalism rather than partisanship, and show how seriously they are taking it. However, the fact that her role in the questioning was dropped shortly after the completion of the questioning of the accuser, Dr. Christine Blassey Ford, suggests another purpose. When it came to questioning Brett Kavenaugh, the Republican Senators had recovered their power of speech and no longer needed the expertise of Ms. Mitchell.
Rachel Mitchell is an experienced prosecutor, and had nothing to prove in her questioning. Still, the timing and execution of her role leads a reasonable person to think that having a female interrogator was about optics, and specifically about avoiding the negative appearance of an all-male panel of majority members questioning a woman about sexual assault, actually including many of the same men who questioned Anita Hill almost 27 years ago. Calling in Ms. Mitchell was a kind of fig leaf over the lack of diversity on the majority side of the aisle. As many have observed, her own questioning was competent but not really illuminating — mostly nailing down the details, as if she was taking Dr. Blassey Ford’s deposition. Ultimately, I’d suspect the Republicans regret that gambit: Not only did they sacrifice their own ability to question the witness, but they also arguably sent a message of tokenism and a lack of respect for the accuser. Still, it isn’t an uncommon move. I’ve been asked many times by litigation teams, “Do you think we should bring in a female attorney” to handle sensitive questioning of a given witness. And their motivation is the same as that of the Republican Committee members: They’re embarrassed by a lack of diversity…and they should be. My answer to both is this: Don’t bring someone in solely for the purpose of optics but, over the long-term, do think about substantively diversifying your team so you don’t have to worry about optics.
The Problem: Fewer Female Litigators Are Arguing Cases
If you look at the average litigation team, chances are still very good that it is a team of mostly men, and that its most senior members are men. A recent article in Forbes discusses a study undertaken by the New York State Bar Association released last November. U.S. District Court Judge Shira Scheindlin had noticed a paucity of women arguing in front of her, and suggested a study to see if that anecdotal experience was real. They found that it was, and women are still strongly underrepresented in speaking roles in court and in mediation. In most of the New York courts surveyed, women were in speaking roles less than a quarter of the time. That proportion is greater in the areas of public interest law, and lower in commercial disputes. This is despite women having been a majority in graduating law school classes for decades.
The Problematic Solution: Symbolic Participation
The short-term fix is to, like the Senate Judiciary Committee Majority, wait until there is a situation in which underrepresentation would be obvious and would send an unfortunate message, and then find someone who is not otherwise involved to step up and play a role. This is window dressing. In the Forbes article, Sharon M. Porcellio, litigation partner with Bond, Schoeneck & King and a member of the study’s task force, notes that it isn’t really fooling anyone. “If, for example, you bring a female colleague to a new business presentation because the potential client is a woman, there will be a different perception if the women on your team are just window dressing or actually playing a role. More clients are insisting that women be meaningful members of the team who are allowed to do something and be judged as the men are.” I believe it is safe to apply that expectation to judges and juries as well: If the female litigator only appears during a situation in which gender is salient, the reason for that appearance is hard to miss.
The Better Solution: Diverse and Female-Led Trial Teams
The New York State Bar Association report ends with a number of detailed recommendations, but the solution for getting the proportion of women in speaking roles to match the proportion of women in law school classes may be as simple as a market change, with clients and senior partners seeking out diverse teams that include more women in speaking roles and leadership roles. And that shouldn’t be viewed as either an act of charity or a concession to social expectations. It is also a way of having better teams. There is clear social scientific evidence that diverse teams are better, more likely to engage critically and to not act based on assumptions or groupthink. There are also some indications that, in a cooperative small group context at least, women actually are smarter and a greater proportion of women lead to better group decisions. The push to diversify will also be aided as more female litigators are willing to “lean in” in going after those roles. As Sharon M. Porcellio argues, “Women need to volunteer for the good projects, not wait to be asked. The women have to put themselves out there. You have to know what the culture of your firm is and be ready to take risks.”
Diversity isn’t a problem Senate Republicans could have fixed within their own membership between learning of the charges and holding the hearings. But it is a problem lawyers can fix between now and the next trial.