Toward Equality
(Twenty-first Century)
This history of women’s work to reshape male-formed law has relied on many documents. None illumine how, during a few months beginning in the summer of 2005, the Supreme Court rolled back to a ratio of eight men to one woman, a disproportion unseen in entering classes of law schools since 1971.
As yet we have no equivalent of the presidential tapes, first available in late 2000, which document that President Richard Nixon proposed nominating Judge Mildred Lillie in 1971 as what he called a sort of “screen,” a form of “playing around” to push aside obstacles (his wife had urged he choose a woman, as had many other women, including Sandra Day O’Connor, then a state senator in Arizona) before naming his real nominees: Lewis Powell and William Rehnquist.
We do know that in 2005 President George W. Bush, when he had Supreme Court openings to replace Rehnquist and O’Connor, felt pressure from his wife and also from O’Connor to nominate a woman. Apparently worried that the few conservative women judges he could find might drift to the left if elevated to the Supreme Court, he found a woman to nominate whom he could announce had “devoted her life” to law, as he saw it: Harriet Miers. She had worked for him as his personal attorney, his campaign attorney, his White House staff secretary, and then his White House counsel.
Miers’ few weeks as a nominee, ending in her withdrawal under fire, produced the result that she and much of the president’s staff originally sought. Justice Samuel Alito, named the day her nomination fell apart, became the second of two new conservative male justices appointed by Bush, along with John Roberts, a former Rehnquist clerk.
We do not know if President Bush’s staff failed to vet Miers fully, or if they vetted sufficiently to anticipate a failed nomination. Perhaps they did not gather the public information that she had given money to Al Gore’s presidential campaign in 1988—data sure to worry Republicans. Perhaps neither staffers nor the president knew that in 1989, as a candidate for Dallas City Council, she had endorsed a constitutional amendment banning abortion—likely to alienate Democrats and some moderate Republicans. Perhaps no one knew that she would, conversing with at least one Republican senator after her nomination, leave him convinced that she believed the Constitution contained a right to privacy—a key grounding for court decisions to permit abortion. Perhaps staffers did not know she would have trouble, as they later suggested, studying up on constitutional law for confirmation hearings before the Senate Judiciary Committee. And no documents explain why Miers, famous as a perfectionist when sending information to the president, failed to include accurate dates when sending information about her legal career to that committee—a failure that led to her public excoriation by its Republican chair three weeks before she was due to testify.
No memos from staffers have come to light that contain such commonplace phrases as “win-win” situation or “can’t lose” scenario to describe nominating Miers, the one woman who had done the president’s legal bidding for years, while holding Alito as the next option.
As soon as the president’s men told her that her confirmation seemed impossible, Miers withdrew. She chose not to test the possibility, far from foreclosed, that she might have won enough votes in the Senate to become a Supreme Court justice. We may never find White House documents saying that Miers served as a sort of screen, or as a defense guaranteeing that neither the president’s wife nor anyone else could claim he had refused to nominate a woman. Such documents may not exist. The fact remains that when two openings appeared on the Supreme Court in 2005, no woman had a serious chance to become a justice.
From within the Supreme Court, we may not find records similar to those from Chief Justice Burger in the 1970s when he threatened to resign in order to block the appointment of a woman to his court. We do understand, however, that Chief Justice Rehnquist maneuvered O’Connor out of the Court ahead of him, creating the opening that was filled by one of his former clerks, John Roberts (after whose nomination O’Connor quickly commented that he was “good in every way, except he’s not a woman”).
We also know that male justices, on a court with only one woman, seem to feel free to speak for and about women. One instance came in the spring of 2007 when Justice Anthony M. Kennedy invoked “the bond of love the mother has for her child” in declaring constitutional a ban on an abortion procedure, as if he had experienced that maternal bond. He was, as Ruth Bader Ginsburg replied in dissent, echoing “ancient notions” such as those of Justice Bradley in 1873 that (as she quoted) “the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.” Such ideas “about women’s place in the family and under the Constitution,” she contended, “have long since been discredited.” But with Justice Rehnquist in 2000 affirming an 1883 opinion by Bradley (calling blacks “the special favorite of the laws”) while rejecting the Violence Against Women Act, and with Justice Kennedy in 2007 seeming to affirm Bradley’s views while rejecting forms of abortion, ancient law seems to have gained new credit—or to have at least gained the necessary five votes, all male.
The twenty-first century may yet bring a move toward a time of equality in the Supreme Court. In the century’s first decade, American law schools are alive with women: 47 percent of students and 35 percent of faculty. Membership of women in the American Bar Association has reached 30 percent. Women hold 23 percent of judgeships in federal courts. Only the Supreme Court of the United States remains overwhelmingly male, atop a system of top-down rulings.
One might suppose that the gender of judges no longer shapes judgments about gender. But during the last three decades of the twentieth century, that supposition proved often false. Men in law fought to avoid looking closely at discrimination. Men in law fought to penalize pregnant women at work. Men in law fought to permit their firms to discriminate against women. Men in law saw sexual harassment as a normal condition of employment. Men in law cut away the legal power of Congress to curtail violence against women. Men in law then gained an increased majority on the Supreme Court.
Mostly outside the scope of this book have been the presidents who have contrived to appoint male justices, and outside it also are the mostly male senators who have ratified so many male appointments. Every four or six years, however, presidents and senators look to the nation. Voters can vote for equality.