By Sydney Reed • April 05, 2017•Writers in Residence, Issues, Women and Law in the Media, Other Issues, Features, First Women
To date, there have been 112 justices appointed to the Supreme Court of the United States. Four have been women.
For every opening on the Supreme Court, there’s been a handful of judges considered for the nomination. Those judges made the “the shortlist.” Over time, twelve women received a spot the shortlist, yet not a seat on the bench. History recognizes each of these women as more than qualified to wear the robes at a time when women were the extreme minority in private practice, law schools, legislature, and courtrooms alike. Yet, presidents passed over each of them for reasons that may feel uncomfortably familiar to women in law today. The stories of the women and how they were affected by biases, both explicit and implicit, can teach us valuable life lessons about gender and professionalism.
- Be vigilant of implicit and explicit bias. Judge Florence Allen, the first woman to sit on the highest court of any state, was the first woman to be considered to serve as a justice. In her lifetime, four presidents considered Allen to fill vacancies on the Court. Historians and legal academics conclude that two major reasons presidents passed over Allen were her lack of a husband and the suspicion that she was a lesbian. Much like Allen, prior to their confirmations, Justice Sotomayor and Justice Kagan faced extensive media commentary on their single status. The press raised questions like “Who will accompany her to formal events?” Unlike Allen, Sotomayor and Kagan surpassed the shortlist and were nominated and confirmed, yet they still encountered critiques of their martial status that their male counterparts did not. Bias controlled the outcome of Allen’s career but failed to careen Kagan and Sotomayor’s careers off-course. Awareness of such societal pressures can help you to take charge of your own career.
- Institutions that don’t pursue progress may be left behind. The American Bar Association deemed Judge Mildred Lillie to be unqualified for the Supreme Court, when she undoubtedly was not, largely because she was a woman. The ABA held great influence over the Supreme Court nominations at the time, and, as a result of the ABA’s disapproval, President Richard Nixon passed over Lillie. Despite growing pressure to appoint a woman to the bench, the ABA continued to never fully approve a female nominee and eventually paid a heavy price. President Ronald Reagan went against the ABA’s recommendation and nominated Justice Sandra Day O’Connor, which in effect demoted the ABA’s stronghold over the nomination process to that of a ceremonial role. Championing progress in our professional lives should extend not just to personal action, but also to protocols and procedures that define a practice group.
- Don’t constrain yourself with contradictions. Judge Susie Sharp, the first woman to be elected chief justice of a state court, was a woman of contradictions, publicly and privately. She advocated for and enjoyed opportunities newly offered to women, but spoke out against women who sought to raise a family and simultaneously pursued a career outside the household. Later in life, Sharp strongly and publicly opposed the adoption of the Equal Rights Amendment. She also promoted the media’s depiction of her as a serious, hard-working spinster, yet secretly engaged in committed, romantic relationships with numerous men. It is unclear today if Sharp lived as she did by purely choice, or if she felt that she constrained by certain societal norms or perhaps rules of her own making. We can only speculate as to how much of progress could have been made had she supported women from all walks of life who sought to succeed as she did. Be your authentic self and support others who seek success.
- Tokenization stands in the way of equality. After the confirmation of Justice Sandra Day O’Connor, four vacancies opened for the court, yet a female judge was not considered. Ten years passed before a woman appeared on the SCOTUS shortlist. Could it be that once one woman was on the Court, the pressure was lifted to achieve parity? To date, no more than three women have served as justices simultaneously. Academics suggest being the only one or a part of a small minority pressures those in that group to speak for the group as whole and can often lead to characterization solely as a member of that group. Meaning, in this case, women on the Supreme Court may feel pressured to speak specifically for women or to give “the woman’s perspective” and may only be seen as women rather than fully recognized as legal scholars. Parity alleviates that problem those people are no longer viewed as tokens, but as people. Promoting progress in the legal field requires pursuing parity of men and women in leadership positions.
- Focus on how we lead, not on what we wear. Judge Soia Mentchikoff, who became the first female law professor at Harvard Law School, three years before women were admitted as students, frequently came under fire for her clothing choices. The New York Post wrote a feature about Mentchikoff as a young lawyer and focused on her love life and her affection for "frivolous hats" rather than her legal acumen. Interestingly, later in life, Mentchikoff linked her hats to her success as an attorney and claimed that she deliberately wore elaborate hats with birds and flowers on to make men feel superior. She asserted that before the men knew what was going on, she had the upper hand in the negotiation. More recently, when Justice Kagan and Justice Sotomayor wore similar navy jackets, “Who would it best?” articles popped up across mainstream media. No such articles appear when male justices happen to wear similar outfits. Such commentary often overshadows women’s leadership abilities, legal minds, and day-to-day accomplishments. Command attention to your career choices; reject commentary on how you should look or dress “as a woman.”
Since Judge Florence Allen was first shortlisted in the 1940s, America has progressed rapidly, yet some of the obstacles these judges faced then remain before women today. I hope that by looking back at history and reflecting on these shortlisters' stories, women in law today can learn from them, resist a gendered understanding of professionalism, and continue to pursue equality.
Finally, I’d like to add one last lesson to the list:
6. Those who are short-sighted may shortlist you, but never shortlist yourself.
First row: Florence Allen, Soia Mentchikoff, Sylvia Bacon; Second Row: Mildred Lillie, Carla Hills, Cornelia Kennedy, Amalya Kerse; Third Row: Joan Dempsy Klein, Susie M. Sharp, [Supreme Court Justice Sandra Day O'Connor]; Fourth Row: Cynthia Holcomb Hall, Pamela Rymer, and Edith Jones.
Special thanks to Professor Renee Knake, J.D. for presenting her research on these women at the 2017 UHLC Yale L. Rosenberg Memorial Lecture. For more information on the lives of the women shortlisted for SCOTUS, please purview Professor Knake's research featured in UCLA's Women Law Journal.