Supreme Court U.S. Supreme Court building on April 23, 2019. Credit: Diego M. Radzinschi / ALM

Before Sandra Day O'Connor was nominated and confirmed to a seat on the U.S. Supreme Court in 1981, a handful of presidents, going back to Franklin Roosevelt, considered nine  women for high court vacancies.

The new book "Shortlisted: Women in the Shadows of the Supreme Court"—from Renee Knake of the University of Houston Law Center and Hannah Brenner Johnson, vice dean of California Western School of Law in San Diego—"tells the overlooked stories" of those women. The book arose out of the authors' study of media coverage of the nominations of Sonia Sotomayor and Elena Kagan.

The National Law Journal spoke with Knake about how that study spurred a book about the nine women and a short-listing phenomenon that exists in the legal and corporate worlds.

How did the media study inspire the short-listed book?

We came across an Oct. 14, 1971, article in the New York Times, appearing above the fold, written about Mildred Lillie. It was the first time we were able to uncover such a public airing of a short list. Nixon had six names. What was most interesting was who the heck was Mildred Lillie and how many other women were short-listed before Sandra Day O'Connor was nominated? That was really the first seed planted for this book.

What is the short-listing phenomenon?

Richard Nixon is the most obvious example. He puts out this list [of possible Supreme Court nominees] and it's circulated in the media. But in tapes from the Oval Office, we learned, he didn't think women should vote. He later says in a speech, "I know you wanted a female justice but at least we considered women." They like to show their short list includes diversity and yet we know from statistics on who makes up leadership, women and minorities are not moving into positions of leadership and power in numbers reflecting their numbers entering law. It lets them off the hook to select a nondiverse candidate.

Do any of the nine women stand out in particular with you?

Florence Allen, the first woman to start appearing on presidential short lists, is absolutely a standout. President Roosevelt missed an enormous opportunity. He put her on the court of appeals after she had secured herself a seat on the Supreme Court of Ohio and she did that because she was so active in women's suffrage. She went out and campaigned for women's right to vote and once it was secured, she turned around and asked them to vote for her. The breadth of experience she would have brought to the Supreme Court would have been really profound.

And Amalya Kearse, the only woman of color. Being a minority woman, she had, like all women in that cohort, initially struggled to find employment. She is a tangible example of how a process implemented by President Jimmy Carter—judicial commissions—can result in meaningful change.

Why did you go beyond telling the women's stories to offer eight strategies to surmount the short list?

We did not want to end up with a list that said if you do all eight strategies we'll have another woman on the Supreme Court. Our point is more what can we take from these women's lives that is still really relevant today?

Some of them are kind of obvious: law degrees. The women couldn't change the fact they were women and excluded from professional life so they went and obtained a qualification men had and which enabled them to enter professional life, to get a foot in the door. Find a mentor. Collaborate to compete—across political and ideological lines.

The book was 10 years in the making. Would you do it again knowing that commitment?

Even though we had other things going on, we couldn't let this story go, especially once I got into the archives of their lives. I couldn't believe their stories hadn't been told yet. I would do it again, absolutely.

 

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