they just called paperworks -- just filed paperwork. lawmakers want to get ahead of this and try to influence what issues the regulators will look at as they examine the deal. that is the influence that congress has. they can influence the discussion. . .

>> they are available to watch at c-span.org. >> our coverage of the tea party national convention is at 9:00pm eastern. >> tomorrow, on "washington

journal"." >> this is c-span's "america and the court's." next, and discussion on women lawyers in the supreme court.

the former justice supreme court sandra day o'connor talk about the challenges women face in the legal profession. the supreme court fellows program alumni association and the first amendment center posted this discussion recently in washington d.c.. [applause] >> this is a great program. it is a topic that i have spent time thinking about over the years, needless to say. my chambers window looks out on the house that look -- used to be the home of alice paul. i am reminded when i looked out my window at the efforts women have made just to get the right to vote. much less practice law. most of the real pioneers faced a profession in a society that espoused what we call "the cult

of domesticity." women were different from men, they said. there were compassionate, selfless, a gentle, and pure. their minds were attuned to art and religion, not logic. men were fitted by nature for competition and intellectual discovery in the world. they were battle hardened, authoritative, and tough-minded. women are thought to be ill- qualified for litigation because it required sharp logic and a shrewd and negotiation. -- and shrewd negotiation. the supreme court to the levinia she could not be admitted to the state bar, the practice of law was unfit for a female character. to expose women to the brutal

repulses and obscene events of court room life would shock womanhood and relax a public sense of decency. they were refused admission. the illinois supreme court said that as a married woman, her contracts were not binding. and contracts were the essence of the attorney-client relationship. the supreme court of the united states agreed with the illinois court. justice bradley, in a concurring opinion for the supreme court cited the natural differences -- they could not be admitted. even clarence darrow, one of the most famous champions of

unpopular causes amassed a group of women lawyers and said, you cannot be shining lights of tomorrow because you are too kind. you can never be corporation lawyers because you're not warm -- cold-blooded. i doubt you could even make a living. for that reason, -- a woman could not keep a secret, and no one will ever consult a woman lawyer. luckily, for us women lawyers today, our female predecessors have far more spunk, spirit, and wit than they were given credit for. the first woman lawyer in california and the first woman deputy district attorney in america displayed the characteristic medal of those early women lawyers. an attorney once suggested in

the open court that clara had better be at home raising children, and they reported, a woman had better be in almost any business. [laughter] a new york woman lawyer pioneer was, in 1879, the first woman admitted to practice before the supreme court of the united states. to receive that honor, she had to try three times to get a special bill passed in the u.s. senate changing the admission requirements. she rode a three wheeler all over washington, d.c. lobbying the senators saying that she was going to get a fight of the line. she even ran for president in 18 -- 1884. there is nothing to stop them for running for office. even without women voters, she

got 4000 votes in that election. we sought an historic first a few years ago with the confirmation of the first woman attorney general, najet reon -- janet reno. the justice department and had a woman assistant attorney general during warren harding's administration in 1920. her name was mabel walker willibrand of los angeles. she was given the job that no one wanted, the job of chief prosecutor of the prohibition laws. she became known as prohibition portia. and after nine punishing years, she went back to los angeles to practice law. there were three women that served as fbi agents in the early 1920's.

every one of them subsequently resigned when it j. edgar hoover became the director. during that early era, susan -- was the associate of -- she argued a case involving veterans benefits. like many skilled attorneys that are before the court, she did not win. her father, supportive as you was, was reduced. in the mid twentieth century, we got more women before the court , and they have distinguished themselves in many ways. we're going to get some of these women to talk to us. i am going to go back to my seat, and we will engage in conversation from there. are we all turned on? we're going to start with wendy

over here and ask what you would like to add. >> i argued once before the supreme court of the united states. i was terrified. i had gotten so excited about the whole project. it was great. i lost the case, of course. three very fine defenders in that case, that is what people remember, really. anyway, i had the privilege after my terrible experience of setting the stage for a the two most distinguished women, i

think, that now argue before the united states supreme court. you have gotten a little bit of this already from justice o'connor, wonderful anecdotes. i will try and add some of those to get a good feel. the shoulders on which these two advocates stand. so, here is a lightning quick sketch of the history of women lawyers and the supreme court bar. an extraordinary journey that began in earnest on may 3, 1879 when, as justice o'connor said, she was admitted to the bar of the united states supreme court. she was just one of 20 women that actually joined the supreme court bar between 1879 and 1900.

how did she and these other teams get their, and what happened next? how many of you were actually lawyers like that? the first thing you have to do is get a legal education, right? most lawyers that practice in that time about their legal training in an office. it was the more common method. they were beginning to take hold. a lot more men were heading off to law school to become lawyers. this group of 20 women, a hundred percent of them -- more attended law school and apprenticeships. the only apprenticeships women could get were basically with their father if he was willing.

a few others considered bringing and a lawyer -- a woman as a fellow lawyer for training. the other problem -- and there were other barriers gang and the law school. a couple of examples from the first 20 members of the supreme court bar one was allowed to attend class is in washington, d.c.. they refused to give her a diploma because they didn't give women diplomas. >> she dealt with it in a characteristically feisty way by writing a letter to the president of the united states asking them to do something about it. it apparently worked. the other example i have has also been mentioned.

she was the no. 5 woman to join the supreme court bar. she sued hastings law school because they excluded women. the supreme court ordered hastings that was a state school to admit her, and the rest is history. she went on to invent a concept of a public defender. her biography is about to come out in the next few months. here is another one. the forced to be admitted was denied admission to law school in 1871. she hung out for 10 years and to try to get them to let her in. she had a lot better luck with medical school and was actually an indian. >> can i ask you to talk --

we're going to run out of time before we know it. tell me about the situation for women today. are they still getting the opportunities they should? and the gang opportunities of as long -- as law clerks? there were only 11 this year out of 38. >> the first woman clerk was in 1944. that was during the war. [laughter] law schools didn't have names to give them. they said, but don't you have any women? they said, here are some names, and they hired one. >> the card and got to the supreme court during that period. >> he hired another woman in

1991. >> it was 20 years before another woman never got there at all. we are doing better, but it is a rocky road. >> how many women have the court? >> not very many. maybe 67. that would have been 1979. >> it is such a stepping stone to legal employment. there are more legal opportunities for law clerk positions. you know what the statistics are in the lower federal courts? >> is much better than it used to be. >> my unexperienced was being turned down because he didn't hire women. he later went to law school. did he change his mind? i think some of you have heard about ruth ginsberg and's

experience. she could not get one. they twisted the arm of the judge and persuaded him that he had to take care. they got a young man working at a law firm to sign enough that he would take over for her. >> i have gotten pregnant is something like that, right? >> in 1979, we had the tradition of going out to lunch sometimes with other justices. they would very graciously take clerks out to lunch. they shall remain nameless. there were known for not -- i just asked them, is there a reason they don't hire women clerks? >> i am not very comfortable with women in my office. he was very genuine about how he felt the collegial environment was more comfortable for him.

i did not criticize. >> we still have some of that. the most women who argue cases at the supreme court today, the most of them work for public employers? that was my experience when i came to the court. you might see some women, that they were working from different public offices, state or federal. is that still the case? >> there are a number of women that have basic supreme court practices. i see people in the office, now lisa blatt has gone and the private work. >> in terms of numbers, maybe not as many. it is it still have the in the public sector? >> i can speak to the supreme court bar is still more

dominated by men. in a large part, is a factor associated with the general's office more than anything. women have been underrepresented for some many years, it is the major stepping stone. >> what are we doing about it? [laughter] [laughter] >> i know you're going to hold me to accounts now. >> one observation i had about this business of coming in through government is that the first great lawyers, the middle 20th-century work, i fink, almost all government lawyers. and they were very rare. today, the opportunity is bigger.

women are still not represented in private firms. >> where should people concentrate their efforts today in terms of helping women? >> they would not have had to go to the california legislature and persuade it to allow women into the bar. it will be looked at in two ways. one is to sort of let nature take its course. there is a majority of people in law school that are women. by definition, that has an impact. >> there aren't very many practicing, not compared to men.

but there are a lot in law school, so i will ask all of you? >> i will take a swing at it. it is very hard to know. i practice in the corporate segment of the practice. it might be somewhat skewed. i honestly think that one of the big reasons is something that i would call the breadwinner mentality. men are likely to come out of law school that have done well with this idea that it is their role in life to go out and be professionally successful because they are going to bring the realm for their family. women are much more likely to think, wait a minute, i like practicing law and i am interested in professional success, but one of my key jobs

and life is to nurture my children. it is a goal that i think you should hold high if you are a mother. there is a big gap and the ambition, at least after five or six years. >> i think so, too. as modern technology alleviated that? you can work from home better. >> that helps, but at the most competitive levels, there is a drive that is required. an enormous amount of time. and business development time. it doesn't mean that women can't do it, but many of them choose not to. >> that is right into the second point i was going to make. if there is an action item, and i think there is, we still have some more to do on structuring workplace features so that there

isn't a penalty for having a family life. we have been talking about that for ever. -- forever. we're beginning to come up with some concrete suggestions to help with that. your suggestion is pretty impossible given the structure of illegal -- >> the best thing that could happen is that men could continue to develop their nurturing instinct so that you eliminate the gap that exists and actually is happening. paternity leave 10 years ago was virtually unheard of, because no man would be caught dead taking it. it is becoming commonplace at major law firms, including mine. men are starting to feel like it is really important, something i have to give greater priority. when that starts to happen, women will not be at a competitive disadvantage.

you see lots of young women in and out. >> more women have feelings that they want to combine work life with family life, even now. it is not just family issues. intellectual interests, professional interests, so they will move around to different areas of law or jobs that aren't quite related. it's not needing to take this step until i get to the head of the institution. women construct much more interesting and very professional lives for themselves -- varied professional lives for themselves until they get to the pinnacle of wherever they are. >> and the fact that there are fewer women partners, you would think that there would be at this time.

it is because of the choices women make as they go along -- >> it is a significant factor. >> are all three of you agree on that? >> at least in part, not to say that law firms cannot be during a better job in order to accommodate women posing many needs -- women's many needs. >> could then make workplace changes and conditions that would help? >> there is nothing that i think my law firm should be that is not doing. -- that it is not doing. they offer a variety of different ways to practice law. at the end of the day, if you want to be a supreme court advocate in this highly competitive market, you're not going to be able to do it if you opt for one of those alternative

tracks were you're not going to spend a lot of time practicing law. >> you have children, do you not? >> i do. >> you have a pretty red hot supreme court practice. how have you done that? >> i limit my life to my family and my profession, period. >> no friends. [laughter] that was true for me. i it would advance in my profession and did not have any spare time. can't get a manicure, can't go shopping. i like ebay. [unintelligible] >> we are supposed to allow a little time for questions from the audience. if you don't have any good questions, i am going to start

asking. anybody that wants to ask better get up here. >> with your approval, justice o'connor, we have a noted supreme court advocate, a person that patricia -- perhaps she would like to make a comment. >> come on up and ask a question or engage. come on. at least come to the microphone. [inaudible] >> turnaround so they can see you. >> since she has invited you, you can come up here. what ever you are most comfortable with. >> the panel does not need any additions, but think for the fantastic panel. the first one is a common reaction to what you're talking about. how hard it was for women to get where they have gotten. now we are here, what do we do?

do we turn into men, or do we tried to change the world? i agree that we are trying to find a new path so that people don't have to choose. like men did, choosing the profession over nurturing. we should all keep putting our heads together to find ways to do that. my question is, with a lot of the over barriers gone, how we combat the more subtle barriers? i am thinking that you can't get a law license, but we had some hearings where there was a blip in time when then judge sotomayor, people were asking about her qualifications. >> just to the question.

>> it went into questions of judicial temperament. i personally thought were the type that did not get asked for a male. how do we start combating those subtle -- >> lets have each of you answer. >> those are the hardest. women always have to be aware of these things in a way men don't. i wish it were different. to be aware of the way people are perceiving it is something that i think women in public life, whether it is that the kids before the supreme court or whether it is political figures -- a set of questions that we have to be very aware of how other people are -- >> being aware of it, how do

deal with it? >> i don't know. in the and, you have to be yourself. you have to have people accept your on your own terms. there are those issues. . maureen. -- >> maureen? >> show up prepared and wow them with your talents. it may take awhile, but that is what we have to do. >> if i may say so, she has done a good job of doing that. you won most of those cases. [laughter] darn good. wendy, what's your answer? >> i am impressed with how much hasn't changed about wh

ether they should wear their hats to oral argument. that issuei s the most hard to attack. i go on with elena kagan. be true to yourself. i would hate to see what we see today, the maureen nahoney's of the world doing six times as much as the guys have to do. she spent three years on the court delay -- that was her approach. being better than everybody else. and sunday, they will accept me as a full member of the club. she brought us a long way with that approach. >> been go. >> de you have an answer to the

question, justice o'connor? do you think women are treated differently in the supreme court? >> i think some members of the court probably have not asked as many questions of women or handle them quite the same way, quite as inclined to be out and out me as they might with some male advocate. i think there could be subtle things. clothing and attire is still a question for women that come to the court and argue. they are not quite sure what to do. they are not going to wear a morning coat. >> some do. somewhere variations on the morning coat?

-- some wear variations on the morning code. -- coat. >> that is pretty formal. most of us have never even seen one. what do the women advocates do? >> most of the women wear variations. i wear a black suit. that's what i do. >> in the solicitor general's office, i clerked for him. we were at lunch, and he asked me why i wasn't wearing a morning coat for arguments. i said, it is a little like if you think of the female equivalent of a morning coat is really a wedding dress. with a big hat.

and he said, i see. [laughter] >> you did all right. >> when i got to the solicitor general's office, i said, it doesn't matter what i wear? they said, absolutely not. or what you're comfortable with. [laughter] [unintelligible] >> next. >> i am a trial lawyer in atlanta. for the last 30 years, have been practicing in georgia. what i have found is that we have, still, and litigation, a vast majority are men. a small percentage of women, perhaps 20%. why is it women fear litigation

and the trial practice, from your point of view. >> i don't know if it is here. is litigation hardest to make these kind of work-family accommodations? >> a trial practice is a nightmare for somebody in school having to be there. your schedule is the court schedule. don't you agree? >> early in my career, we liked the trial work. >> of the cases are here, and she lives here. it used to be one to three.

she had it made. it was simple. exactly right. >> i hope that is all it is. >> i hope it is really a work balance issue and not a question of women presenting themselves in a traditionally male role. as litigators, we represent the profession most publicly, and to think there is a reticence on the part of someone where they are a real advocate. >> i think so, too. but for some good reasons. do we have another audience question? >> feel free to exercise your free speech rights.

>> speak up and turn the microphone on. >> what about those of us with physical disabilities? >> let's have some answers to the physical disability question. >> i have not had much experience with it. i honestly don't know. there are very few lawyers that have had that issue. >> there is said respected trial lawyer that died a couple of years ago that was wheelchair- bound. even before -- he found ways of

coping with that. his personality and his confidence, he made his way up to the top tiers of the legal profession. but he was very exceptional in that regard. i have had experience with having a judge on the d.c. circuit's that can't see. he is another one of these brilliant capable people that has somehow it worked around the problem that he can't himself read. justice o'connor, you had a law clerk -- >> i had a law clerk last year that was totally blind, and he was amazing. he did not need to do anything for him. he was incredible. it was incredible. i guess there are ways to cope.

>> there is a feeling on the part of people and you know it better than i do that people with a physical limitation of some kind are somehow not going to be up to the job. you have a double burden of proof. when men have always had a tremendous burden of proof. if you are a woman and disabled, it was very near impossible. on both counts, i think they're getting better. >> do you think that the law profession is keeping up with other professions, other areas of business? both private law firms and government in changing the business model so it is more amenable to family life. a quick comment is, i think because we work on precedent, we are slow to ideas. i guess i am wondering, you

think we're keeping up with other businesses? >> anybody want to tackle that one? >> if you compare law school the business school, there are more than business schools. it is actually larger in the legal profession and the business world. i am not sure you'll find all that many differences there. maybe even if your women that are in the legal world now. >> not so much in school but working from home programs or telecommuting programs, flexible schedule programs. you pretty much can't take those of the tracks. >> that is not an alternate track.

i was actually referring to somebody who wants to be it full-time equity partner. >> we can take the high and accounting firms -- we are probably doing as well as facebook. >> we encourage all of you to exercise your free speech rights. if i could encourage -- act as moderator and ask a question. we are particularly pleased by the fact that the first woman to argue a free-speech case in 1929, it took almost four decades before another one would argue a free-speech case.

against that backdrop, i have a question. what is your sense as to what areas of law that women are most likely? i am just curious. >> will already said that more women lawyers are representing public law offices and private practices. that doesn't answer specifically what topics they are addressing. >> one of the great things about being an appellate advocate, the people that argue before the supreme court may argue a criminal case this week and first amendment case next week, and securities case the week after that. i don't think there are all that many folks -- it is one of the

interesting things. >> the categories that i would point to, from my own experience, the public interest groups that litigate before the supreme court. and the women's rights community in general -- there are made by women and men in public interest firms doing that kind of thing. as across the spectrum, for example, on the right. it might send more women lawyers to the supreme court. i don't know one way or the other. >> we have lawyers, historians,

judges, all sorts of people in our audience. we have this incredible panel. let's avail ourselves of the opportunity. let me see if i can get a microphone to you, sir. >> you have the dree -- addressed the issue of whether attorneys as women are treated differently by the court. i wonder whether women judges are treated any differently. for example, if an opinion might carry the same weight as a man's opinion when it is being discussed among other judges. or if you would argue a case differently if you're arguing before a woman judge.

>> i am going to get into this. an appellate court panel with only so many members on the court -- you're going to take every vote where you can get it. and every vote counts as much as every other. often the court split 5-4. you're going to get it decided maybe by a margin of one. you just want an argument that might persuade. i don't see any difference. once you're there as a judge on an appellate court panel, i think there is no real difference there in the treatment by attorneys making the argument or among the judges themselves.

>> i never had the privilege of arguing in front of justice o'connor. the women on the bench now are extremely active questioners. >> anybody else in the audience? all right. >> my name is sarah wilson. i am currently a civil litigator. i worked in the mid-90s. it was an oral history of the first generation of women judges. this gentleman has sort of asked part of my question, that is whether you think the culture for women litigators in particular has changed as a result of the critical mass of women in judicial positions. i think it has made a huge difference.

>> because there are more women judges in the culture for the advocates -- >> culture is a very powerful force. we have sort of broken through the boundaries, and exceptional is and has had this strategy of minority groups. it is kind of a very much unspoken thing in the courtroom. it makes a huge difference to have two or three women on an appellate panel. in terms of the way your client perceives you and the way in opposing household receives you, it sort of changes the nature of the game where you no longer feel like the exception, but rather the rule. >> that could be. what do you think? let's let her go first.

>> you probably get to a tipping point where you have all kinds of roles in the court room where people stop and it is unusual or noteworthy. >> i have a question if you will indulge me. >> we will get to another one. >> i almost had one a year ago that was kind of exciting. i have had arguments were the only advocate for women. i do see a shift. i think is very helpful for the reasons you're describing where women are not an oddity. and clients don't feel like they're going out on 11. >> id you agree? >> absolutely. the jokes they used to be told about women by male judges --

won't you just settle for having susan b. anthony on the dollar? that kind of thing is happening less. that was mild compared to some of the other things that happened. i think we gain legitimacy by having women as advocates. they are not derided or demeaned. >> i am not at the court of law, i go up whenever anybody in my office -- i see a lot of arguments. there are a number of women arguing before the supreme court, and women that are chief counsel bench. there wasn't a woman in sight. it was very noteworthy. there were 12 men in a row. the national football league case. [laughter]

>> there is a second part to the question. make it brief. >> this will sound familiar to you, but the first woman -- when she was a women's rights lawyer because she could not get a job they where else, she made a comment to a group of young women interested in the professions of 1920. she says neither forget all remember that you are a woman. femininity part of public life. i want to know what that meant to you. as to the panel, do you have any further thoughts? >> what did i say? [laughter] >> i believe the transcript as public. i think he said, i am not really

sure what it means exactly, but it sounds right to me. >> i would probably say the same thing today, thank you. we are at 5 minutes until 4:00, quitting time. >> with all due respect, we had agreed on a little bit more than that. of course, i will defer to your judgment. we have water to women here. we have a woman over here. josh -- >> i just got a reprieve here. >> we will come to the ladies over here. >> could you all speak about the role of mentor ship, and how you are mentoring women, a lot -- young lawyers, how do you turn

around and change the role of women in the profession? >> when you do you want to start -- wendy, do you want to start? >> i was mentored by a faculty member at berkeley when i was at law school there a hundred years ago. when i became a young lawyer by a groove the ginsburg -- ruth later ginsburg -- bader ginsburg said, get tenure before yous tart -- you start talking about women's rights. at that moment in history, that was no longer true. it was true for them, but not for me. their mentor ship was a little

old-fashioned, but usually supportive. i spent a lot of time trying to support young women. as a teacher, young men as well. i have a special feeling for the young women. back in the day, i spent a lot of time on that. >> did you have any? >> i had a couple of mentors, one of them was justice rehnquist. he played a major role in my career. one thing i always tell women, don't forget that the men still have most of the influence. most of the power. he wanted them to be your mentors, too. don't just look for women mentors. i certainly tried to mentor women. i recently recommended somebody to the solicitor general's

office that was a young woman. it is important to pay attention to that. there are a lot of men that are willing to mentor women. a lot of them are more interested in your talent that your gender. >> that is good advice. >> that is my advice to women all the time. i was mentored mostly by men because that was who the professors and judges were at that time. i tell when that law students, take your mentors where you find them. women are great, but men are great, too. maureen did just give us this wonderful woman for our office. we're pretty happy. >> we have another question here, ma'am. >> i was interviewing the former inspector general of the army, asking about some of the things

that he told commanders. he said, you're going to have a group of people that are absolutely equal and ready for promotion. you need to ask yourself every time whether your choosing the white male or a minority, or one then. you may select simply by virtue with whom you feel most comfortable and have the most uncommon. -- in common. and women choosing family and having to do with their promotion, because the statistics bear out that in virtually every industry, they don't make a dollar for dollar with their male counterpart, do you think that women are actually up selected? i have a lot of friends that chose careers over family. among litigators, do they actually have equal opportunities to move ahead? >> [unintelligible]

>> equal opportunity in all law firms and across the country, probably not. at least in a lot of the firms and the situations i have seen, yeah, i do. certainly in my firm, women who are talented do just as well as teh men. -- as the men. we don't get the same numbers because of choices people are making. there is another major factor that could have an impact, an adverse impact on women. it is still the case that a lot of the general counsel's that they hire our mail. i don't think they're consciously discriminating with some rare exceptions, that they are more likely to know men because men and women still tend to choose women or men

because of similar interests. there is some disadvantage for women not associated with discrimination, but rather who even know. it is already being diminished, but it will diminish as more and more women become general counsels. i have seen it all the time. they might even lean a little more towards hiring women. >> we have another question -- yes, ma'am. >> i want to talk about the campaign finance reversal by the supreme court last week. i know it was one of the first cases that you argued. as the first female solicitor general, i wanted your thoughts on the decision last week and if you think their opinion puts the issue of foreign contributions in u.s. elections as final?

>> that is kind of outside the scope. >> de cared ask anything germane to our topic? >> it is more fun to win than to lose. [laughter] >> when i was in graduate school, there is a book written by -- it was called "a different voice." somehow, women were being socialized differently than the way men were being socialized. i have raised two daughters, one of them an investment banker and the other academic researcher. is there any situation or anecdote you wanted to share with the audience about why being a woman affected under -- and how you understood jurisprudence, a case, or have your approach to the litigation strategy?

>> who wants to tackle that first? >> i have only been litigating for four months. [laughter] the answer is, i have not had that experience yet. oh, boy. i don't think so. i have never bent a man. -- been a man. i don't find my analysis of cases is going to be particularly different than my competitors, for instance. we asked the same kinds of questions and that sort of thing. i don't think so. i do see this sometimes among young women. they don't speak as assertively. not across the board, but one of the things that i say to young women entering a law firm that are sitting in a conference room, speak up and make herself heard.