Portia's Long Road to the Supreme Court Bench
Accessible and engagingly written, "Shortlisted" makes a significant contribution to understanding how justices are nominated and the hurdles women face when they strive to reach the highest levels of the legal profession.
July 15, 2020 at 02:00 PM
10 minute read
Book review: "Shortlisted: Women in the Shadows of the Supreme Court" by Renee Knake Jefferson & Hannah Brenner Johnson. NYU Press, 2020, 304 pages, $30
Forty years ago, no woman had ever served on the U.S. Supreme Court, and only one justice had served on any court that had a woman as a member. Potter Stewart, who at 39 became the youngest federal judge in the country when President Dwight Eisenhower appointed him to the U.S. Court of Appeals for the Sixth Circuit in 1954, joined a bench that included Florence Ellinwood Allen, the first—and, at that time, only—woman in the history of the Republic to serve as an Article III judge. Allen was 70 when Stewart joined her court. A jurist with a national reputation and more than 35 years' experience, she had been shortlisted for nomination to the Supreme Court by three different administrations—shortlisted, but not selected. Stewart, her most junior colleague, remained on the Sixth Circuit for just four years before Eisenhower elevated him to the high court in 1958. By that time, Allen was nearing the end of her career. Stewart later described her ungenerously as a "kind of a bitter woman because she had not come to the Supreme Court of the United States." When Stewart retired in 1981 and Sandra Day O'Connor took his place, she achieved the first that Allen had not.
Allen was the first, but not the only, woman considered for the court before O'Connor's historic nomination. In "Shortlisted: Women in the Shadows of the Supreme Court," professors Renee Knake Jefferson of the University of Houston Law Center and Hannah Brenner Johnson of California Western School of Law relate the little-known stories of nine women who achieved that distinction before O'Connor made it off the list to become the first woman Supreme Court nominee and the first woman justice. Some of the authors' "shortlisted women" have been written about previously, but others have been neglected; no one has brought all nine together in a single, collective narrative until now. This absorbing volume weaves together accounts of their professional and personal lives to inform, inspire and guide, and then presents an expansive discussion of gender inequality in positions of leadership and power.
"Shortlisted" had its genesis in media coverage of the nominations of Sonia Sotomayor in 2009 and Elena Kagan in 2010. Headlines including "The Supreme Court Needs More Mothers" and "Elena Kagan v. Sonia Sotomayor: Who Wore It Better?" prompted the authors to wonder about the portrayal of Supreme Court nominees in the press—more particularly, how coverage differs for men and for women. After reading and coding thousands of news stories for 50 variables, they concluded that, in contrast to male nominees, women were portrayed in explicitly gendered and sometimes unflattering ways through attention to their sartorial choices, dating habits, sexuality and other matters unrelated to qualification to serve on the court.
During their research, Jefferson and Johnson learned that, in 1971, the Nixon administration shortlisted a California appeals court justice named Mildred Lillie. It was news to them that President Richard Nixon had considered appointing a woman to the court. And they were outraged that The New York Times saw fit to report that Lillie "fortunately" had no children and that, in her 50s, maintained her "bathing beauty figure." Their discovery led them to ask such questions as: How many other women were shortlisted before O'Connor became the first to be nominated? How might the court be different today had women been selected before O'Connor? And what effect might this have had on disparities for women in leadership positions in law and other professions? This set of questions took the authors beyond the news clippings and into presidential archives, personal papers, oral histories and the work of other scholars, where they uncovered the hidden histories of the nine women who are the central focus of this volume. All of them were shortlisted but not selected before O'Connor became the first woman nominee.
Allen is first among Justice Ruth Bader Ginsburg's "way pavers," trailblazing jurists who made it less difficult for succeeding generations of women to join the judiciary and realistic for women to aspire to "full lives in the law." Allen's appointment to the Sixth Circuit by President Franklin Roosevelt in 1934 was one in a long list of firsts. Months after the ratification of the 19th Amendment in 1920, voters elected her to the Court of Common Pleas of Cuyahoga County, Ohio, the first woman in the country to fill such an office. Allen's leadership role in the suffrage movement during the preceding decade played an important role in her victory. She had "friends everywhere," women who canvassed successfully for the right to vote and then went out and canvassed for her. Two years later, Allen became the first woman elected to the Supreme Court of Ohio. She was reelected to a second six-year term in 1928. As early as 1924, Allen was recommended to President Calvin Coolidge for a seat on the U.S. Supreme Court. Members of the Hoover administration discussed her as a possible Supreme Court nominee; Allen's name was floated multiple times among members of the Roosevelt administration, and once again after Truman assumed the presidency.
Not until 1962 and the Kennedy administration was a woman again shortlisted. This time, the prospective nominee was Soia Mentschikoff, one of the first women to make partner at a Wall Street law firm, the first to teach at Harvard Law School, and a moving force in the prestigious American Law Institute. Assistant Attorney General Nicholas Katzenbach, who had served with Mentschikoff on the law faculty at the University of Chicago, recommended her for the seat vacated by Charles Whittaker. Katzenbach shortlisted Mentschikoff a second time after he became deputy attorney general in the Johnson administration.
Apparently, no women were shortlisted for the first two vacancies filled during the Nixon administration. But in 1971, after Hugo Black and John Marshall Harlan II retired unexpectedly within a week of each other, Nixon found himself with two more seats to fill. A shortlist of six names, including two women, soon leaked to the press. Lillie of the bathing beauty figure had served on city and county courts in Los Angeles before her elevation to the California Court of Appeals in 1958. The American Bar Association's all-male Standing Committee on the Federal Judiciary killed her chances by rating her "unqualified." This action led the White House to conclude there was no prospect the committee would approve the other woman on the list, Sylvia Bacon. A Harvard Law School graduate who had clerked for Burnita Shelton Matthews, the first woman to serve as a federal district court judge, Bacon spent the early part of her career in the Justice Department, where she earned a reputation for being tough on crime. Nixon had appointed her to the Superior Court for the District of Columbia in 1970, a year before she appeared on his shortlist.
In 1975, the Ford administration shortlisted Housing and Urban Development Secretary Carla Hills, the third woman in U.S. history to hold a cabinet-level appointment, and Federal District Court Judge Cornelia Kennedy for the seat vacated by William O. Douglas.
Then, in 1980, Ronald Reagan made a campaign pledge that changed everything: if elected president, he would appoint a woman to the court. The shortlist for the seat that opened when Florence Allen's former colleague Potter Stewart announced his retirement the following year included four women in addition to O'Connor, who was then a judge on the Arizona Court of Appeals. They were: Second Circuit Judge Amalya Lyle Kearse, the first woman of color to appear on a Supreme Court shortlist; Judge Cornelia Kennedy (again), now on the Sixth Circuit by appointment of President Jimmy Carter in 1979; Presiding Judge Joan Dempsey Klein of the California Court of Appeals, Second Appellate Department; and Chief Justice Susie Marshall Sharp of the North Carolina Supreme Court. The rest, as they say, is history.
The authors conclude the narrative portion of "Shortlisted" with a chapter about three federal appeals court judges who were shortlisted during the Reagan administration after O'Connor's appointment—Cynthia Holcomb Hall and Pamela Rymer of the Ninth Circuit, and Edith Jones of the Fifth Circuit—and four women who, like O'Connor, transcended the shortlist to become nominees: Justices Ginsburg, Sotomayor and Kagan, and Harriet Miers, who withdrew after harsh criticism of her qualifications.
The second half of "Shortlisted" draws from the narratives in the first half to explore a broad range of themes relating to inequality in the professions. The authors acknowledge that challenges are compounded for women who face additional barriers based on such factors as race, religion and sexual orientation. But their focus is on gender.
Among the topics explored are: shortlisting as a means of deflecting pressure for inclusion; burdens faced by women selected as tokens, including increased scrutiny, expectations that they will act as representatives of their "group," and exposure to coercive power dynamics; strategies employed by the shortlisted women for moving forward; professional partnerships and intimate relationships that supported their achievements; added challenges, for some, of motherhood or a spouse or partner's competing career; and gender stereotyped perceptions of men and women as they age. In considering how the world might look had more women been appointed to the court earlier, the authors explore the impact of women judges on case outcomes and the administration of justice both here and abroad, and the effect of women seeing other women in positions of power.
A concluding chapter considers strategies for women who seek leadership positions and those in positions of power for breaking down barriers in the law and in the professions generally. Here Carter, who never had a Supreme Court vacancy to fill, comes in for special praise. His U.S. Circuit Judge Nominating Commission raised the number of women on the federal bench through a program of explicit mandates, including diverse nominating panels and requirements to document steps taken to achieve diverse candidate pools. Carter appointed 40 women to the federal bench during his four years in office. Just 10 had been appointed during the preceding 200 years.
The sheer breadth of the discussion in the second half of "Shortlisted" means many complex issues are addressed only briefly. That portion of the book may best be viewed as setting forth an agenda for further inquiry, research and discussion.
Accessible and engagingly written, "Shortlisted" makes a significant contribution to understanding how justices are nominated and the hurdles women face when they strive to reach the highest levels of the legal profession.
Melissa Nathanson, who began her legal career at a Wall Street law firm and later moved to the law department of a major investment bank, is writing a biography of Justice Harry A. Blackmun.
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