2
The Shortlists before the First Nominee
SOIA MENTSCHIKOFF, SYLVIA BACON, MILDRED LILLIE, CARLA HILLS, AND CORNELIA KENNEDY
… survey the field, and don’t exclude women from your list.1
—President Gerald Ford to Attorney General Edward Levi on selecting a nominee for the Supreme Court, 1975
Nearly three decades passed and twenty-seven Supreme Court vacancies occurred between the time Florence Allen’s name appeared on Roosevelt’s memorandum in 1937 and the nomination of Sandra Day O’Connor in 1981, all filled with men. In 1962, Soia Mentschikoff made the list prepared by an assistant attorney general in John F. Kennedy’s administration and again later that same year for a vacancy that arose during Lyndon B. Johnson’s presidency. In 1971, Sylvia Bacon and Mildred Lillie both landed on Richard Nixon’s shortlist submitted for vetting to the American Bar Association. In 1975, Gerald Ford included Sylvia Bacon, Carla Hills, and Cornelia Kennedy on his shortlist.
The shortlisting of the women from Allen to O’Connor set the stage for future female representation on the Court. Several forces helped drive change, including pressure induced by educational institutions, civil rights organizations, media coverage, and the women closest to the presidents—their advisers, daughters, and wives. The shortlisting processes of Presidents Kennedy, Johnson, Nixon, and Ford are as compelling as the stories of the women who made it onto their lists, and both the presidential and the personal histories are explored in this chapter.
The Shortlists: Kennedy, Johnson, Nixon, and Ford
Kennedy (in office 1961–63)
John F. Kennedy was the first president to make an explicit, public promise to include female candidates in his selection of judges, pledging to “choose men and women of unquestioned ability”2 as he signed a new law that resulted in the creation of seventy-three federal judgeships on May 19, 1961. But that promise was met with the selection of only one woman. That same year, Kennedy appointed Sarah Hughes to the United States District Court for the Northern District of Texas, making her the third woman to ever serve on a federal court. (It was Hughes who later administered the presidential oath to Lyndon B. Johnson in Dallas after Lee Harvey Oswald assassinated Kennedy.)
Kennedy faced two opportunities to fill Supreme Court vacancies during his brief presidency. The first occurred when Charles Evans Whittaker announced his retirement in March 1962. Nicholas Katzenbach, an assistant attorney general in the Office of Legal Counsel, prepared a list of potential names along with then Deputy Attorney General Byron White. Katzenbach included the name of Soia Mentschikoff.3 He placed her among the “most serious candidates” and described her as “an outstanding woman.”4 Katzenbach knew her well, having taught with her on the faculty at the University of Chicago Law School. (A similar Chicago connection occurred decades later when President Obama nominated Elena Kagan. The two were also faculty colleagues at the University of Chicago in the 1990s. We return to Kagan’s nomination in chapter four.) As it turned out, White himself was selected to fill the vacancy. As unusual as it might seem for the individual responsible for vetting candidates to be selected himself, White has not been the only member of an administration to be selected for the Court in this way. This happened with Roosevelt’s nominees, and recurs again later in the book with the nominations of William Rehnquist and Harriet Miers.
The second Kennedy vacancy occurred when Felix Frankfurter retired on August 23, 1962, following a stroke. Kennedy nominated Secretary of Labor Arthur Goldberg to fill the opening without much, if any, consideration of other candidates. The vacancy was seen as a “Jewish seat,” having been held by Benjamin Cardozo before Frankfurter. As of early 2020, eight of the justices who have served on the Court since its inception have been Jewish; two of the eight have been women. (While presidents have been reluctant to preserve a seat for gender, they have taken into account geography, political affiliation, race, and religion when selecting their nominees in order to achieve some semblance of balance and representation.)
Johnson (in office 1963–69)
Though President Johnson was known for approaching appointments with a single candidate in mind, his staff still prepared shortlists for Supreme Court vacancies. The first seat Johnson filled belonged to Arthur Goldberg, whom Johnson enticed to retire by offering him the role of ambassador to the United Nations. Goldberg apparently believed the president would reappoint him to the Court after service with the United Nations, though that never occurred. He resigned from the Court on July 25, 1965. Katzenbach, who became deputy attorney general after White was confirmed to the Court, again shortlisted Mentschikoff, describing her as “the only woman worth of consideration for appointment to the Supreme Court.”5 Instead, Johnson’s close adviser, or as some said, “crony,” Abe Fortas was confirmed easily on August 11, 1965,6 though he would become quite a controversial figure over time.
With Tom Clark’s retirement in 1967, Johnson tapped civil rights lawyer and then–Solicitor General Thurgood Marshall, who became the first African American to join the Court. Lady Bird Johnson pressed for a female candidate, stating that “Lyndon has done so much” for African Americans, so “why not indeed fill the vacancy with a woman.”7 Of course, her husband could have selected a qualified nominee who was both black and female. Jewel Lafontant, for example, would have been more than qualified, having argued and won a case before the U.S. Supreme Court in 1963.8 She served many years as an assistant U.S. attorney for the Northern District of Illinois after being the first black woman to graduate from the University of Chicago Law School in 1946. (Nixon reportedly was later intrigued by the idea of nominating her to the Court, though he never placed her on his shortlist. He did, however, go on to appoint Lafontant to the Department of Justice as the deputy solicitor general in 1973.)
When Chief Justice Earl Warren expressed his intention to retire in 1968, Johnson hoped to promote Fortas into this leadership position. Homer Thornberry, appointed by Johnson in 1965 as a member of the U.S. Court of Appeals for the Fifth Circuit, was announced as the nominee to fill the Fortas seat. But Fortas’s nomination for chief justice was withdrawn amidst a scandal about ethics issues involving bribery and illegal wiretapping, rendering Thornberry’s appointment moot. Fortas then resigned, and his seat remained unfilled for most of the 1969–70 term until President Nixon took office. Though Johnson did appoint the first African American woman to a federal court, placing Constance Baker Motley onto the U.S. District Court for the Southern District of New York in 1966, his legacy would not involve putting a woman on the Supreme Court.
Nixon (in office 1969–74)
Four vacancies fell to Nixon during the years from his inauguration in 1969 to his resignation after the Watergate scandal in 1974. Two of the seats needed to be filled as soon as he entered office—a chief justice to replace Warren and an associate justice to replace Fortas. He immediately appointed Warren E. Burger as chief justice, who was sworn in on June 23, 1969. (Burger had been appointed by Eisenhower to the United States Court of Appeals for the D.C. Circuit in 1956.) Nixon next turned to filling the Fortas seat, which, despite the urgency, would remain vacant for nearly a year. His first choice, U.S. Court of Appeals for the Fourth Circuit Chief Judge Clement Haynsworth, was rejected by the Senate in a vote of 55–45 because of concerns about racism and financial conflicts of interest. Nixon next nominated Fifth Circuit Judge G. Harrold Carswell, but in the face of allegations of racism and opposition to women’s rights, he too was rejected by the Senate in a vote of 51–45. The third nomination would prove the charm, with Harry Blackmun’s unanimous confirmation in May 1970.9 The idea of placing a woman on the Court, however, was not seriously contemplated during this initial set of nominations in the Nixon administration.
In the aftermath of the struggle to fill the Fortas seat, Nixon tasked Attorney General John Mitchell with the job of gauging interest among particular favored candidates when two more vacancies occurred in 1971 with the retirements of John Marshall Harlan and Hugo Black. Nixon faced increasing pressure on multiple fronts to place a woman on the Court—including the press, women’s organizations, academics, government officials, his wife Pat, and daughters Julie and Tricia. Law school deans from across the country wrote Nixon to support the appointment of a woman. Even former Supreme Court Justices Tom Clark and Arthur Goldberg acknowledged that it was time.
Nixon himself did not share the view that a woman belonged on the Court. He told Attorney General Mitchell in the Oval Office: “I don’t think a woman should be in any government job whatever. I mean, I really don’t. The reason why I do is mainly because they are erratic. And emotional. Men are erratic and emotional, too, but the point is a woman is more likely to be.”10 Despite his personal views, he nonetheless understood the political value of nominating a woman for the Court, believing that it could help him pick up one or two percentage points in the upcoming 1972 election. He explained to Mitchell, “I lean to a woman only because, frankly, I think at this time, John, we got to pick up every half a percentage point we can.”11 His observation emphasizes a lesson that Florence Allen knew well: the votes of women count.
Following the practice established under Eisenhower, Nixon decided to send his shortlist to the ABA Standing Committee on the Federal Judiciary for vetting. He was the first president to include not one but two women on this list. He wanted independent evaluations to play a role in the process of evaluating the fitness of his potential nominees, but also counted on the ABA to deal with his “woman problem.” The committee included a representative from each judicial circuit and was tasked with rating nominees as “extremely well-qualified,” “well-qualified,” “qualified,” or “not qualified.” Among the list of six names, Sylvia Bacon and Mildred Lillie appeared with Robert Byrd, Charles Clark, Herschel Friday, and Paul Roney.
Lillie and Friday were the favored candidates. Though it was supposed to be a confidential process, the shortlist was leaked to the media, with all six names appearing in the headlines. Concern arose over the idea that the ABA committee—all white men—might not support Lillie.12 Despite her objectively excellent qualifications, including two decades on the bench,13 the ABA committee voted Lillie “unqualified” 11–1 and Friday somewhat more favorably as “not opposed” after a 6–6 vote, even though he had no judicial experience at all.14 Because of the non-qualified rating on Lillie, the president’s staff believed it was not even worth seeking an ABA rating for Bacon.15
After the leak, the Nixon administration “abruptly terminated tonight its agreement to check the judicial qualifications of potential Supreme Court nominees” with the ABA and instead decided to first announce the nominees and then allow vetting.16 The media reported that Nixon found the “talent pool small” for women, thus necessitating the nomination of two more men.17 Behind the scenes, it was known that even with Nixon’s personal views about women on the Court, he intended to nominate Lillie but for the ABA’s disapproval. Yet, it turned out to be the result Nixon hoped for after hearing that Chief Justice Burger “wrote [Mitchell] a three-or four-page letter … letting it be known he [was] not anxious to have a woman.”18 “No more anxious than I am,” replied Nixon, observing that the ABA “may take us off the hook on the damn thing.”19
Nixon was determined to have his subsequent candidates succeed. In the face of the ABA’s double-rejection of Friday and Lillie, he selected Lewis Powell, a corporate law partner at the Virginia firm Hunton & Williams and past president of the ABA, as one of the nominees. For the other, Nixon took a page out of prior presidents’ playbooks and selected a member of the team vetting potential nominees, Assistant Attorney General William Rehnquist. Once again, an individual charged with vetting candidates became the nominee—Rehnquist carried Lillie’s suitcase when she interviewed with Nixon for the Court and went on to fill the seat that should have been hers.
The media subsequently described the deflated hopes felt by women when Nixon announced more men for the Court, as Dorothy McCardle wrote in the Washington Post: “Disappointment, laced with resignation, was the mood last night among 3,000 Republican women over President Nixon’s failure to appoint the first woman to the U.S. Supreme Court.”20 An article in the New York Times reflected on the lack of women lawyers available as candidates, speculating that women were not hired or promoted by law firms for a variety of blatantly stereotyped reasons. These included the fear that they would just get pregnant and quit working, assumptions that juries did not like women because “they are too shrill,” that women were not tough enough to handle the “strain of litigation” and inevitably “they fall apart,” and because “[c]orporate law work requires long trips out of town, and long sessions at night in hotel rooms, writing briefs and otherwise preparing cases. The partners’ wives would not stand for women in such jobs.”21
At the Convention of the National Federation of Republican Women, Nixon made his annoucement of Rehnquist and Powell as nominees. In the context of his remarks, Nixon acknowledged the potential of appointing a female justice: “While I know that a great number in this audience, including my wife, felt very strongly that not only should a woman be considered but that a woman should be appointed, let me say that at least we have made a beginning, and there will be a woman on the Supreme Court in time.”22 Nixon wanted to have it both ways, giving the politically advantageous nod to women by putting two on his shortlist but preserving the male-only world that the chief justice (among others) preferred.
Women’s rights organizations and political leaders quickly critiqued Nixon’s choices. The National Women’s Political Caucus (which had opposed Lillie) called him out for refusing to meet with them to discuss female nominees or to even acknowledge their correspondence. After the release of Rehnquist’s and Powell’s names, the caucus sent Nixon a telegram noting “the empty lip-service which appears to have marked the Administration’s attitude toward consideration of distinguished women for the Supreme Court vacancies.”23 Sentator Strom Thurmond, then a member of the Senate Judiciary Committee, observed that Nixon “had let the American Bar Association exercise a veto on his choices,” recognizing that “the President was seriously considering a woman.”24 Thurmond expressed regret: “I am sorry he let the American Bar Association have a veto on the Court. I would have liked to have seen a woman. There are plenty of well-qualified women.”25
Patricia Roberts Harris, who would become the first African American woman to serve in a presidential cabinet both as secretary of housing and urban development and secretary of health, education and welfare under the Carter administration, reflected, at the time, on the lack of pipeline opportunities: “We have generally not been permitted to achieve the external signs of eminence that are considered qualifications for the Supreme Court. We are not part of the little group that is asked to publish. We are not partners in the large law firms from which Secretaries of State are drawn. Women haven’t been considered—so they aren’t considered.”26 Mary Kelly, who had recently graduated from New York University Law School when Nixon made his selections, commented, “The idea that women could step into their shoes is still alien to them.”27 She further observed, “The legal world is still run by men who have no peer experience with women. They went to Harvard when there were no women students there or to other prestige schools when there were a token few. They had no women professors. They view the entire legal world as male.”28
Clearly, Nixon was no fan of equality for women on the Court as an aspiration in and of itself. As he said when discussing Thurgood Marshall’s presence on the Court: “There’s a hell of a lot of stuff that has to do with women. I’m not for it. I don’t think women should ever be allowed to vote even,” but “if we say the Negro viewpoint should be on the court, why not the woman’s?”29 At best, he seemed to view the inclusion of women on his shortlist as a politically expedient move to capture votes and quell the rising pressure from women in the public and in his own home. But doing anything more, including making an actual appointment, was not viewed as “much of a political plus,” in Nixon’s words.30
Even so, Nixon carved a notch toward progress as the first president to place two women on his shortlist simultaneously and to make the list public. Admittedly, it is disheartening that the shortlisting of two women might be deemed progress and yet, given the historical framework, it was quite extraordinary. Nixon’s record on filling Supreme Court seats likewise is notable for his uncanny ability to nominate male candidates that were rejected by the Senate, even in the face of imminently qualified female options. Nixon also laid some groundwork for future progress by assigning staff assistant Barbara Hackman Franklin to the task of adding more women to upper levels of the federal government. In an interview about her time working for Nixon, she reflected that excitement brewed about a woman nominee, but “[t]he crucial thing was that Nixon wanted someone who was philosophically compatible with his point of view. And many of the women in the judiciary were Democrats and/or were not strict constructionists. Finding candidates became a problem.”31 Nixon’s fidelity to “strict constructionists” or “conservatism” became a proxy for sexism that continued to haunt the Republican Party decades later, most notably in the Miers nomination, which we take up in chapter four.
Ford (in office 1974–77)
President Gerald Ford encountered only one vacancy during his time in office. Justice William Douglas sent a resignation letter to Ford after months of illness, and Ford turned to Attorney General Edward Levi and White House counsel Phil Buchen for help. “Survey the field,” he told Levi, “and don’t exclude women from your list.”32 Levi offered a dozen names, which were eventually narrowed “down to five or six names, including Department of Housing and Urban Development Secretary Carla Hills and Detroit Federal District Court Judge Cornelia Kennedy.”33
As with Nixon, family members, politicians, and women’s rights organizations called for Ford to select a female nominee and flooded his office with telegrams and letters. Democratic U.S. Representative Charles Rangel, then chair of the Congressional Black Caucus, wrote Ford asking him to appoint a black woman to sit on the Court as “a most important contribution to our progress as a nation.”34 Additionally, Rangel asked Ford to include the National Bar Association, a historically black organization, in the vetting done by the ABA. Republican representative Ralph S. Regula also wrote to Ford, urging him to consider a woman for the vacancy: “My reasoning for advocating the nomination of a woman to the High Court is based upon my conviction that the time has indeed come to recognize women as equal, not only in the traditional setting of marriage, but in our governmental institutions as well. Throughout the country, there are many well-qualified women who could make thoughtful contributions in the interpretation of the nation’s laws.”35 Regula further noted that “there are six women who are currently serving as federal judges. In addition, there are thousands of female lawyers, many of whom, through their education as well as experience, possess the capacity and stature needed in the nation’s highest court.”36 Vernon C. Loen, deputy assistant to the president, offered Regula only a cursory reply: “The President has stated that the appointment will be based on the qualifications of the individual regardless of sex.”37
Ford’s exchange of correspondence with Audrey Rowe Colom, the first black female chair of the National Women’s Political Caucus, reflects a typical tension in shortlisting, where leaders pay lip service to equality and diversity but fail to act. In July 1975, Ford wrote to Colom congratulating her on her new role as chair: “Our Nation has come a great distance since 1920 and the Nineteenth Amendment. Still, we have much to do to insure [sic] that equal rights, responsibilities, and rewards are really for every American woman.”38 But Ford subsequently stonewalled Colom on her push for a female justice. In the wake of the Douglas retirement announcement, she repeatedly contacted Ford to no avail. In November 1975, she sent a telegram advocating the appointment of a woman to the Supreme Court. She wrote, “There are many exceptionally qualified woman jurists who would bring experience, knowledge and intellect to the Court. We urge you to consult with womens [sic] groups, congresswomen and legal experts before you exercise your awesome power of appointment.”39 She promised to prepare a list of candidates and followed up the next day with a list of legal scholars, judges, and women in public life.40 Her list of sixteen names included three of our shortlisted women—Hills, Kennedy, and Mentschikoff—and one who would, eventually, surmount the shortlist—Ruth Bader Ginsburg. Like Congressman Regula, Colum received only a brief note from Phil Buchen, counsel to the president, thanking her for expressing her views.41
Ford built on Nixon’s efforts and formalized the process for gathering names of qualified women to appoint to senior government roles, even if not for the Court. Anne Armstrong, named by Nixon as counselor to the president with cabinet rank in 1973, remained with Ford during the early days of his transition. She held numerous responsibilities in her role, including creating the first Office of Women’s Programs, later known as the White House Council on Women and Girls until it was discontinued by President Trump in 2017. Patricia Lindh joined Ford’s administration in 1974, first as a special assistant to Anne Armstrong. (She would go on to lead the Office of Women’s Programs when Armstrong became U.S. ambassador to the United Kingdom.) Armstrong resigned in November 1974, leaving Ford’s cabinet devoid of women until Carla Hills became the HUD secretary in February 1975.
Among the responsibilities of the Office of Women’s Programs was an official role whereby the Office compiled information on qualified women to fill senior leadership positions in the federal government. In that capacity, Lindh sent to Ford’s personnel director Doug Bennett “an unrefined list” of eighteen women on November 13, 1975, “for information and consideration” to be included on the president’s shortlist, including from our study here Sylvia Bacon, Cynthia Holcomb Hall, Carla Hills, Cornelia Kennedy, Soia Mentschikoff, and Susie Sharp.42 The next day she would send an additional name—Sandra O’Connor, Superior Court Judge of the Court of Maricopa, Arizona.43 Lindh also wrote the president directly on November 17, 1975, noting that the attorney general’s list of candidates not only omitted a female candidate, but included two or three men opposed to the Equal Rights Amendment which, in her words, “really puts us in double jeopardy.”44 Meanwhile, she observed that “[l]etters and phone calls have been coming in from women’s organizations and from leaders throughout the country urging the appointment of a woman to the Supreme Court.”45 Like Colom, Lindh tried to persuade Ford to make good on platitudes about women: “You have been forthright in your many statements concerning the status of women in our society. International Women’s Year and our Bicentennial have served to highlight both the achievements and aspirations of women. I realize that you have many factors to consider in making this appointment. But, all else being equal, your nomination of a properly qualified woman for the Supreme Court would be appropriate and just.”46
Ford resumed the practice (abandoned by Nixon in the wake of the Friday/Lillie debacle) of submitting a list of names to the ABA for review before announcing the nominee. A list of ten names was sent, reportedly including Carla Hills47 and Cornelia Kennedy.48 Ultimately, President Ford selected John Paul Stevens, who was confirmed unanimously by the Senate in December 1975, and served until retiring in 2010. His selection angered Colom and the National Women’s Political Caucus, who continued their letter writing campaign:
Your failure to nominate a woman to the Supreme Court of the United States has disappointed a generation of women who are striving to make “equal justice under law” a living reality. The Court will not be truly representative of the American people until a woman serves in the constitutionally unique position of U.S. Supreme Court Justice. You might have played a significant part in this historical process by selecting a woman for this position. We are dismayed that instead, you chose the path of political expediency. We intend to continue our efforts to assure that women are included at all levels of our government and we expect you to appoint more women to major positions within your administration as more opportunities arise in the coming year.49
Colom followed up with a telegram expressing concern over Stevens and his reliance upon the Fourteenth Amendment’s Equal Protection Clause to do the work of what would be guaranteed under an Equal Rights Amendment:
The courts have not categorically declared women, like blacks, to be a suspect classification which would mandate the Court’s close scrutiny of sex-based discrimination laws. Accordingly, some claims of sex-based discrimination, relying on the 14th Amendment protection, have been lost before the Supreme Court. These cases would most likely be turned around by the enactment of the ERA. Judge Stevens’ indifference to the most significant pieces of legislation concerning women today is an affront to the women of this country. We urge the committee to examine him at great lengths to determine if he has sufficient sensitivity to the legal needs of the 53 percent of this country’s population who are women.50
A letter from the president’s director of correspondence dodged her concerns and justified the selection of Stevens because of his “careful and thorough consideration of a wide range of views” and “outstanding legal career … [with] personal and professional qualities of the highest order.”51
Betty Ford expressed similar disappointment but commented to the press that she was “confident that he picked the most capable and best prepared person.”52 When asked whether a woman should have been selected, ABA president Lawrence Walsh conceded, “It seems to me that the President should pick the best person available and the sex of the person should not be a factor; if it’s a woman, appoint a woman; if it’s a man, appoint a man.”53 Elaine Latourell, vice president of the National Organization for Women, “said she was ‘basically pleased’ by the nomination although NOW had submitted its own list of qualified women candidates … ‘I’m confident the Court will continue to recognize the injustices women have suffered … women don’t have anything to fear because our issues stand up to intellectual scrutiny.’”54
Latourell’s observation proved prescient, at least to the extent Roe v. Wade55 can be viewed as a measure of support for women’s rights. The men who made it off the shortlists of Johnson, Nixon, and Ford would help form the 7–2 majority legalizing abortion in 1973. As then, men can certainly represent women’s interests, but this is not always the case. As Ruth Bader Ginsburg noted in an interview following the oral arguments of Safford Unified School District v. Redding, none of the men on the bench know what it is like to be a thirteen-year-old girl.56 The case involved a strip-search of a young female student while at school. Although the Court ultimately sided with the female student, this might not have occurred without the perspective of Justice Ginsburg. We return to the difference a woman’s perspective makes on the Court in chapter seven. But first, it is important to reflect on the personal and professional aspects of the women’s lives given the time and sociopolitical context within which their shortlisting arose.
The Women Shortlisted between Allen and O’Connor:
SOIA MENTSCHIKOFF, MILDRED LILLIE, SYLVIA BACON, CARLA HILLS, AND CORNELIA KENNEDY
Revisiting the history of shortlists prepared by Kennedy, Johnson, Nixon, and Ford is valuable in and of itself to cultivate an understanding of the dynamics at play when a particular individual is or is not selected, as well as when an excluded group seeks access to power. But what of the women themselves? Much like Allen, each woman shortlisted pre-O’Connor was a formidable trailblazer in her own right. Their individual and collective stories offer insight into ways women continue to remain on the shortlist rather than be selected from it. We introduce them individually in the pages that follow, and in part two delve into greater detail about shared experiences that remain relevant to women today.
Soia Mentschikoff
Soft spoken and informal in appearance, she could be devastating in legal dispute, crushing her opponents with precise reasoning.57
—Reporter for the New York Times on Mentschikoff’s death, 1984
Soia Mentschikoff had planned to become a lawyer since she was a child. Born in 1915, she recalled how, when she was just twelve years old, a “girlfriend and I put down what we wanted to be on a piece of paper and sealed it in an envelope. Years later, after I moved and was in law school, I came across the envelope and opened it. The piece of paper was still inside and mine said: ‘I want to be a lawyer.’”58
FIGURE 2.1. Soia Mentschikoff (Credit: Stephen Lewellyn, public domain)
The same year Allen’s name appeared on Roosevelt’s list, 1937, Soia Mentschikoff graduated from Columbia Law School at age twenty-two. (Recall that Columbia was Allen’s first choice, but at the time, as a woman, she was prohibited from attending.) As a student, she met the man who would later become her lover and husband, the prominent legal scholar Karl Llewellyn, though at the time they met he was married to someone else. After graduation, she practiced law at Scandrett, Tuttle and Chalaire in New York City from 1937 to 1941.59 The public was fascinated by the novelty of a female lawyer, and in 1940 the New York Post ran a multi-page article about her daily life titled “Dates, Clothes and Play Relevant, Not Material,” including a full-length photo of Mentschikoff in a ballgown.60 Part two of the book further examines the Post article and similarly sexist media coverage of the other shortlisted women.
In 1945, Mentschikoff became one of the first female partners on Wall Street at the firm Spence, Windels, Walser, Hotchkiss and Angell, where she remained until 1949. While there, she served as an assistant reporter for the American Law Institute, aiding Llewellyn in writing the Uniform Revised Sales Act, and then as associate chief reporter, again working with Llewellyn on the Uniform Commercial Code (UCC). Though associate chief in name, she was widely thought to be the primary driver for the implementation of the UCC. The two married in 1946 and both began teaching at Harvard Law School in 1947. Her first appointment at Harvard was as a visitor; she became a professor in 1949, three years before women were even admitted as students. Harvard Law School’s announcement of her appointment stated that “it is her specialized professional competence rather than her sex which will entitle her to sit in the chair once ornamented by the great Williston,” referencing Samuel Williston, an acclaimed scholar of commercial law.61
Mentschikoff remained at Harvard until 1951, when she left to become the first female professor at the University of Chicago. She was hired along with Llewellyn at a time where simultaneous “hiring of a husband and wife on the same faculty had not as yet been done by any major law school.”62 Dean Edward Levi set out to recruit Llewellyn as his faculty’s “most wanted hire,” but soon learned when telephoning references that “Karl would be fine, but Soia might even be better.”63 Though she had “made a greater impact than her husband” as an academic at Harvard Law School, Chicago’s anti-nepotism rules prevented hiring both of them as tenured faculty. Thus, she was given only an untenured position as “professional lecturer” and hired at “a sum very close to the top salary” but not equal to that of Llewellyn, who “was to be given the ‘top salary’ even higher than” the dean of the law school.64 By the 1960s, “[r]umor had spread that she and Karl … were the highest paid law professors in the nation.”65 We explore this sort of influence from lovers and partners in the careers of the shortlisted women more fully in part two.
After teaching at the University of Chicago, Mentschikoff was named the first permanent female dean of Miami Law School in 1974, making her the second ever female dean of an accredited law school.66 She also became the first female president of the Association of American Law Schools in 1974. She was often described as “one of the best legal minds in the country” with a “personality as formidable as her intellect.”67
Mildred Lillie
People will see that she’s not one of these frigid bitches, you know?68
—Attorney General John Mitchell on his interview with Justice Mildred Lillie, October 11, 1971
That’s right, I know, the terrible ones.69
—President Richard Nixon’s response to Mitchell
I couldn’t have lived for going on to 76 years, with my background and all the things that I have done, and my exposure to the critical comments, prejudices, and biases of others, without being aware of the inequalities suffered by females from the beginning of recorded history.70
—Mildred Lillie, from her oral history
Mildred Lillie was born in 1915, the same year as her shortlisted sister Soia Mentschikoff. After her parents divorced, she moved from Iowa to California, where she was raised on her uncle’s farm by a single mother who struggled financially. The home did not have electricity or indoor bathrooms. Lillie did not have much time for normal childhood activities because she worked to provide financial support and helped cook family meals. Nevertheless, she excelled in high school, earning a scholarship to the University of California, Berkeley. She majored in political science and supported herself through various jobs, such as working as a domestic cook. Lillie’s father, from whom she was mostly estranged, actively discouraged her from going to law school when she wrote to him to tell him her plans. Ascribing to the ideas of traditional gender roles, he offered his opinion on her decision: “Well, he wrote to me—I think it was about the third letter I ever received from him—and told me what a ridiculous idea it was, that I was on my own, that it was a waste of money, that all I would do would be to get married and have a batch of kids, that I would never use my law degree, even if I got through law school, and that I was wasting my time and I ought to get smart and get a job. I decided that since I had been living all this time without any help from him, that I could continue to do so. So, I entered law school.”71
Lillie remained at Berkeley for law school and graduated in 1938. Alexander Kidd, Lillie’s criminal law professor, referred to her only by the title “mister.”72 He could not tolerate the presence of women in law school and therefore rendered them invisible by refusing to acknowledge them in accordance with their gender. Lillie recollected, “He ignored us until he called on us, and if we did not answer correctly, he became insulting and threw tantrums.”73 Lillie’s grades were strong during law school except for the semester when her uncle died—she received one D and one F, according to White House Counsel John Dean and his assistant David Young, who interviewed her in October 1971 while vetting candidates for the U.S. Supreme Court.74 After her uncle’s death, Lillie supported herself and her mother “by grading international law papers for the Dean while continuing her cooking job. Incidentally, the only other woman in her law school class was 20 years her senior.”75 Reflecting on whether she was discriminated against in law school, Lillie confessed that she had little time to be concerned about discrimination because she was busy studying, working to support herself, and taking care of her mother. She observed, “The fact of the matter was that we three women were largely ignored. No one paid much attention to us or took us seriously.”76
FIGURE 2.2. Mildred Lillie (Credit: Center for Sacramento History, Sacramento Bee Collection, 1983/001/SBPMP05010)
Lillie’s first job out of law school was with the Alameda City Attorney’s Office from 1938–39; she then moved to private practice before becoming an assistant U.S. attorney in 1942. She left that position in 1946 to return to private practice, marrying Cameron Lillie in 1947. That same year she was appointed to the Municipal Court, City of Los Angeles in 1947, followed by the Superior Court, County of Los Angeles in 1949. She remained at the Superior Court until 1958, when she was elevated to the California Court of Appeals. Cameron died in 1959, and she later married Alfredo Falcone in 1966, but kept her first husband’s name, which was so controversial at the time that Dean and Young asked her about it when they interviewed her for the potential Supreme Court appointment.
Lillie came the closest any woman had before her to being selected for the Supreme Court. Her presence on President Nixon’s publicly revealed shortlist garnered both support and controversy. Numerous letters and telegrams poured into the president’s office in support of her nomination, including a letter from the Board of Supervisors of Los Angeles County describing her “keen mind which cuts through ‘legal entanglements’ like a laser beam. She would be considered a conservative. Her good judgment, integrity, stability, fairness, pleasing personality and physical attractiveness make her a ‘natural’ as your appointee as a first woman to become a United States Supreme Court Justice.”77 A memorandum written by Dean and Young for Attorney General John Mitchell and John Ehrlichman after interviewing her for the nomination stated that they “were reasonably impressed with her as an articulate woman of considerable breadth and experience from a legal as well as a personal point of view.”78 Apparently the men were taken by her appearance much in the same way the author of the New York Times article noted her bathing beauty figure. They observed that “she is a rather handsome woman with excellent hearing; rather large but not overweight.”79 They concluded with a favorable recommendation: “She appears to be a most able woman and [our] impression is that she is not an intellectual lightweight. Her philosophical views of justices have been borne out of experience and are accordingly stern and strict. She is not afraid to dissent, and [we] think confident enough to hold her own on the Court.”80
But support for Lillie was not universal. A letter signed by more than twenty law professors from the University of California Los Angeles (including only one woman—Barbara Rintala) “strongly opposed the nomination of Justice Lillie” based upon her lack of competence for the Court.81 Ultimately, the ABA sealed her fate when it deemed her “not qualified.”82 It was widely speculated that Nixon succumbed to pressure to nominate a woman, even though he privately hoped that the ABA would reject her: “Nixon decided that if Lillie’s ratings were negative as expected, he could take credit for having considered a woman for the Court and blame the ABA for its low rating, making it impossible for him to go forward with her nomination.”83
Long after Lillie’s shortlisting, John Dean offered an opinion on the ABA’s decision: “I later—after Sandra Day O’Connor was selected—I lined up the credentials of these two women and Mildred Lillie was every bit, if not more, qualified to be a Justice than Day O’Connor.”84 Dean elaborated in a radio interview, explaining the disconnect: “But what happened was the American Bar Association at that time was made up of all men and the old boys did not think that it was time for a woman to be on the high court. But the principal person who really objected to Nixon selecting a woman was none other than the Chief Justice himself, Warren Burger, who threatened that he would resign if Nixon put a woman on the court.”85 As Dean observed, reflecting on a conversation with Lillie shortly before her death, “Justice Lillie’s five decades on the bench, with 44 years on appellate courts (including an occasional case when she had been designated to sit on the California Supreme Court), resulted in thousands of learned written opinions notable for their intelligence, clarity and logic, further putting the lie to the ABA committee’s smear to keep her off the U.S. Supreme Court.”86
When Lillie died in 2002, she was the longest serving judge for the state of California.
Sylvia Bacon
Bacon probably would appear to be just a little too young. I don’t know, what do you think? She isn’t by my standards. I wonder if something could be said, John, for appointing a woman who represents the younger generation, not only a woman, but the youngest [justice] ever appointed.87
—President Nixon to White House counsel John Dean
Born in South Dakota on July 9, 1931, Sylvia Bacon was raised by a family with ties to the Republican Party who published a local paper, the Watertown Public Opinion. (Though she could not have known this as a child, the family business would later become an asset during the vetting process for judicial appointments. Their political ties and publishing background were discussed favorably in White House memoranda advocating for her nomination to the Supreme Court.) Bacon flourished in high school, “almost a ‘straight A’ student and ranked second in her class of 138.”88 She was active in extracurricular activities and known to be “the outstanding debater on the squad, a winner in Declamation, and a leader in the school’s radio club.”89 She also acted in and directed plays, and served as editor-in-chief of the school newspaper.90
Bacon fled the Midwest after high school, graduating from Vassar College in 1952 with a degree in Economics but maintaining her political roots. While there, she served as vice-chair of the New York State College Young Republicans. She then attended the London School of Economics for a year. She received her law degree from Harvard Law School in 1956 and her LLM from Georgetown University Law Center in 1959.91 At Harvard, Bacon again pursued political interests as the secretary of the Harvard Law School Young Republicans.
Judge Burnita Shelton Matthews of the United States District Court for the District of Columbia hired Bacon as a clerk from 1956–57. (Recall that Matthews was appointed by President Truman in 1949, the first ever woman on a federal district court.) Matthews long endured personal discrimination in the legal profession, including having her application and dues check rejected by the District of Columbia Bar Association because she was a woman. Perhaps as a way to fight back against these sexist practices, she hired only female law clerks during her time as a federal judge. Matthews went on to become president of the National Association of Women Lawyers and was undoubtedly influential in Bacon’s career trajectory.92
FIGURE 2.3. Sylvia Bacon (Credit: Richard M. Nixon Presidential Library, public domain)
Bacon worked at the United States Department of Justice for several years early in her career, where, among other notable accomplishments, she was an author of the District of Columbia’s no-knock crime bill, a “controversial crime and court reorganization law.”93 Through her work at the Department of Justice, she earned a reputation of being tough on crime, and was appointed by President Nixon to the Superior Court of the District of Columbia in 1970 at a time of “pressure on the Administration to appoint women to high positions.”94 (Nixon appointed another one of the shortlisted sisters to the federal bench that same year, Cornelia Kennedy.) The Nixon administration considered Bacon for a range of potential judgeships, based upon what an internal memorandum described as “the unusual extremely high qualifications of Miss Bacon to serve as a Federal judge.”95 Among the positions for which she was deemed “qualified to serve” were the U.S. Court of Appeals for the District of Columbia Circuit and the Eighth Circuit (where no woman had ever served), the U.S. District Court for the District of Columbia (where her mentor Matthews served from 1948–68 and Julie Green served at the time Bacon was considered) and for South Dakota (where no woman had ever served), the U.S. Court of Customs and Patent Appeals (where no woman had ever served), and the U.S. Court of Claims (where no woman had ever served).96 But she was never appointed to any of these roles.
She was also regarded for her work on victims’ rights. In 1976, she testified before Congress about the flaws of rape laws:
Unfortunately, these logically “shaky” rules have had a far-reaching effect on enforcement of the rape laws. Although it is difficult to separate social attitudes, police practices and rules of evidence, many rape victims refuse prosecution because of the potential humiliating inquiry into most personal matters.… The number of occasions on which the United States must dismiss prosecutions because the witnesses are most reluctant to come forward are numerous.… I daily observe the terror with which women come to the witness stand and the experience they have in the courtroom.97
Bacon famously signed the consent order requiring Georgetown University “to give homosexual student groups the same privileges as other student groups.”98 On the bench, Bacon was known as “one of the court’s ablest and hardest-working judges,” though it was reported in the mid-1980s that she also struggled with a “lengthy period of pain and depression after both legs were broken when she was hit by a car” and “encountered problems trying to care for her seriously ill mother.”99 She underwent treatment for alcoholism in 1986100 and later returned to the bench, where she served until 1991.
Bacon’s name surfaced as one of six potential nominees to the Court when she was just thirty-nine years old.101 She was widely discussed during the same time that Lillie was also shortlisted by President Nixon, her name appearing among other possible contenders on the front pages of the New York Times and Washington Post.102 She was described as having a strong law-and-order background that led her to be seriously considered by Nixon. But she was also critiqued for having “little trial experience,”103 which hardly seems disqualifying considering that a significant number of justices had minimal or no trial experience prior to their appointments. (O’Connor, for example, had authored only thirty opinions as a state judge, and Kagan had never even served as a judge, when each was nominated.)
Nixon’s archives are filled with numerous letters advocating for Bacon’s placement on one of the federal courts of appeals and the Supreme Court. Marjorie Longwell, chair of the National Women’s Party, praised her extraordinary qualifications:
We know Judge Bacon to possess an extraordinary dedication and intense loyalty to the law as well as a remarkable capacity for the discernment and application of sound legal principles. Her career reflects her great vitality, industry and courage, and her ability to fulfill responsibility expertly and expeditiously. You realize just as we do that when you create the precedent of naming a woman jurist to the Supreme Court, the eyes of the country will concentrate on your precedent. We are convinced that Judge Bacon would do you honor and would serve on the Court with distinction. She would indeed grace the Court with her poise, dignity and wisdom.104
Politicians including Kansas Senator Robert Dole wrote on her behalf, noting her excellent judicial temperament and long history of support for the Republican Party.105 The archives also include a letter Bacon graciously sent to Nixon in support of Powell and Rehnquist, the men who filled the seat she had been shortlisted for. Nixon responded to her letter, writing back that she was “very kind to write me, expressing such generous support for my nominations.”106
After being shortlisted for the Court, Bacon was recommended by John Mitchell for the role of associate judge, District of Columbia Court of General Sessions, a new position created by a federal law approved in 1970.107 Notably, the Standing Committee on Federal Judiciary of the American Bar Association declared her qualified for this position.108 (Recall that Nixon declined to advance her name after the Lillie debacle with ABA ratings.) Bacon again appeared on a list of Supreme Court candidates prepared for President Ford in filling the Douglas opening, recommended by Pat Lindh,109 as well as on a “preliminary” list of “strong candidates for review” circulated within the Reagan administration in July 1981.110 Bacon was the second woman to serve on the ABA Board of Governors, a role she took on in 1988. As she assumed the position, she cautioned the recently formed ABA Commission on Women in the Profession: “Let’s not think we are in the mainstream because we have a budgeted commission and a women’s caucus. To be in the mainstream we’re talking about the House of Delegates, the Board of Governors … The ABA should be a leader … in the profession by an example.”111 (At that time, no woman had ever presided over the ABA. Roberta Cooper Ramo put her hat in the ring that same year, but did not become the first female president of the ABA until 1995. The first woman of color did not become president until 2015—Paulette Brown.) After leaving the bench, Bacon continued her dedicated service to the legal field, teaching at Columbus School of Law, Catholic University of America, for many years.
Carla Hills
She’s willowy, brunette and capable of turning on a Mary Tyler Moore smile. She’s also our new secretary of Housing and Urban Development.112
—Reporter for the Los Angeles Times, 1975
Carla Hills, similar to her predecessors Lillie and Mentschikoff, encountered pervasive sexist commentary based on her appearance that accompanied—and often supplanted—discussions of her professional accomplishments and qualifications. Born in 1934, her childhood nickname was “Butch” because of her tomboy ways.113 Her family was affluent, living in Beverly Hills where she attended private school and excelled in tennis to such an extent that she later became the captain of the Stanford collegiate team. She graduated from Stanford magna cum laude in 1955. She initially planned to remain at Stanford for law school, but instead went to Yale on the advice of Carl Spaeth, who was the dean of the Stanford Law School at the time but nonetheless advised her to pursue her degree elsewhere.114 Hills was one of only a handful of women at Yale Law School when she arrived. Despite her family’s affluence, her father initially refused to pay for law school on the east coast (he favored Stanford), so Hills paid for law school tuition with her savings from working summers at Bank of America as a bookkeeper and teller until her father finally agreed to help her.
FIGURE 2.4. Carla Hills (Credit: Department of Housing and Urban Development, public domain)
When Hills graduated from law school in 1958, there was not one female partner in a law firm in Los Angeles County. Though she graduated among the top of her class from Yale (twenty-first in a class of 167), she struggled to find employment. “Sorry, there are no ‘separate facilities’ for women lawyers,” was the response she received from one firm.115 She began her career as an assistant U.S. attorney in Los Angeles, then moved into private practice before eventually becoming the assistant U.S. attorney general for the Civil Division of the Justice Department in 1973. During her early years of law practice, she experienced overt discrimination in court with “some judges who would remark on the fact that they would rather not have a woman in the courtroom.”116
President Ford appointed Hills as the Housing and Urban Development secretary in 1975, and in this capacity she was the youngest person (let alone the only woman) ever to occupy that role. Her four children ranged in ages from four to thirteen at her swearing-in, the youngest of whom held her hand during the ceremony. She was the sole woman in the cabinet during her tenure, and the third woman in United States history to serve in a president’s cabinet.117 The only other women to hold that rank before Hills were Francis Perkins as secretary for the Department of Labor under Franklin Delano Roosevelt, Olveta Culp Hobby as Dwight Eisenhower’s secretary of Health, Education, and Welfare, and Anne Armstrong as counselor to Nixon and Ford. Hills almost declined the job. She told the president, “You know I’m not an urbanologist. You’ll probably get some push back on this and actually I think you need me at the Justice Department because that is what I’ve been doing all my life, being a lawyer.”118 He replied, “I’m told you are a good manager. HUD needs a good manager. I’d like you to go.”119 Hills decided that “when the president asked you to do something, you do it. So I acquiesced.”120 (That would not be the case when Ford later broached the topic of the Supreme Court.)
Media coverage surrounding Hills’s appointment reflected women’s admiration for her intellect and capacity to balance her roles as a professional and a parent. “She’s an executive, a good one,” remarked one attendee at a reception held by the Executive Women in Government (an organization she founded) in Hills’s honor following the swearing-in ceremony.121 Another shared, “What excites me … is that she’s a mother with younger children and getting such a job. This is happening more and more.”122 In that same article, Pat Lindh commented, “Now for the Supreme Court. We’ve only just begun.”123 Betty Ford publicly claimed responsibility for Hills’s appointment: “I think I’ve done a good job … I got a woman into the Cabinet.”124 Her position did cause stress for entertaining, given that her husband also held a prominent but not superior role in the administration: “The Washington hostess who entertains the new chairman of the Securities and Exchange Commission Roderick M. Hills may have trouble with the seating at dinner when his wife comes, too. She is the only woman in the President’s Cabinet. As Secretary of Housing and Urban Development, Carla Anderson Hills outranks her husband.”125 She might have outranked him in government, but when she formed the law firm Munger, Tolles, Hills and Rickershauser with her husband (among others) in 1961, she was “paid far less” because she was a woman, though eventually negotiated a “full salary.”126
Hills spoke little about her consideration for the Supreme Court except to acknowledge in an oral history that she did in fact know she had been shortlisted upon the retirement of Justice Douglas. She denied any actual formal conversations on the topic, but did note that Ford asked her to consider the role in the 1970s, which she declined.127 Public commentary surrounding her shortlisted status focused explicitly on her gender, with one reporter from the Washington Post concluding that her qualifications were not sufficient on their own to elevate her to the Court. In his opinion, it was her gender, not her accomplishments, that set her apart: “Hills is a gifted and imaginative administrator at an agency much in need of her abundant talents. But were she not a woman she would not be considered for the nation’s highest bench.”128
Commentators also speculated about her potential as a running mate for Ford: “Carla Hills the Secretary of Housing and Urban Development recently was asked about the possibility that she might become the first woman vice presidential candidate. She replied with a big smile: ‘I don’t think you have to hold your breath on that.’”129 An editorial dismissed the idea of Hills as a candidate because selecting her “would look like playing a wild card—an act not in keeping with the sense of stability the president needs to communicate.”130 Hills remained at HUD until 1977, and returned to cabinet-level rank when she served as U.S. trade representative for President George H. W. Bush from 1989 to 1993.
Cornelia Kennedy
If you want to know about Judge Cornelia Kennedy … and the future of women in general, ask her husband.131
—Reporter for the Washington Post, 1970
Cornelia Kennedy was born in 1923. When she was just eleven years old, her mother passed away while a second-year law student at the University of Michigan Law School. Kennedy and her sister were then raised by their father, a lawyer in Detroit, who helped cultivate her interest in the legal profession. He made sure she had female role models: “As a high school senior, Kennedy was so intrigued by the election of the first female judge in Michigan, Lila Neunenfelt, she asked her father to arrange for her to interview the judge for her school newspaper. She did, and it was a moment that Kennedy would not soon forget.”132 Cornelia Kennedy and her sister, Margaret Schaeffer, both became attorneys and judges. Margaret served on the 47th Judicial District in Farmington Hills, Michigan. They were, quite literally, sisters in law.133
Kennedy graduated third in her class from Michigan Law in 1947, which only included five women. There were no women on the faculty at that time. There were no dormitory rooms available for women law students, so unlike her male peers, she was required to make her own living arrangements. Upon graduation, Kennedy found law firms were unwilling to hire women; in a speech she remembered, “One prominent firm had the audacity to tell me that they hired women lawyers during the war, but too bad for me the war was over.”134 Nevertheless, she persevered to become the first woman to clerk for the United States Court of Appeals for the District of Columbia Circuit, hired by Chief Judge Harold W. Stephens from 1947 to 1948. Following her clerkship, she practiced law with her father from 1948 to 1952 and then with her sister, Margaret Schaeffer, for a year before becoming a partner at Markle & Markle, where she remained until 1966 when she was elected to the Wayne County Circuit Court. She lost her first campaign for that office by less than one hundred votes, but that did not stop her from running again to become only “the third woman elected to a court of general jurisdiction in the state of Michigan.”135
FIGURE 2.5. Cornelia Kennedy (center), her father, and her sister (Credit: University of Michigan Law School)
Like all of the shortlisted women, Kennedy achieved numerous “firsts” during her career, even earning the nickname “First Lady of the Michigan Judiciary.”136 The official certificate documenting her first judicial appointment had the pronouns “he” and “his” erased and exchanged for “she” and “her,”137 evidencing how unprecedented the presence of a woman on the bench was in those years. Kennedy was also the first woman to head the Detroit Bar Association. President Nixon appointed her to the U.S. District Court for the Eastern District of Michigan in 1970, and in 1977, she became the first woman to serve as chief judge of a U.S. district court.138
Kennedy was elevated to the U.S. Court of Appeals for the Sixth Circuit by President Jimmy Carter two years later in 1979, where she remained until her death in 2014. The fact that her ascendance in the federal judiciary came at the behest of presidents representing opposing political parties speaks volumes about her judicial temperament. She would display this balanced temperament over the course of her career, voting “in sync, when they sat on the same panel, with Judge Bailey Brown” who “was a Tennessee Democrat.”139 Kennedy explained, “He didn’t have any kind of agenda. We only disagreed on one case in 20 years.”140 It was a copyright case involving comedian Johnny Carson’s famed slogan, “Here’s Johnny!” Kennedy disagreed with the majority who held “that Carson had exclusive rights to the phrase.”141
At the time of her confirmation to the Sixth Circuit, the presence of women in the judiciary remained a novelty. The male judges excluded Kennedy, like Florence Allen before her, from their regular daily lunches at the University Club of Cincinnati, which banned women during that era. Allen, whom Kennedy had argued a case before during her time practicing law, gave her the very hot plate she used to warm her lunch while the male judges savored the club’s culinary offerings.142 Kennedy displayed it with pride atop a marble table. Eventually the male judges decided that they would stop frequenting the club unless it changed its exclusionary ways, which the club finally did.
Kennedy also grappled with informal discriminatory practices and institutional policies that impacted women disproportionately. At the time, there was no provision for the husbands of federal judges to collect pension benefits in the way that wives were entitled to do so. Kennedy successfully worked to change this provision.143 She was also the first to preside over an “all-female, three-judge panel” in the Sixth Circuit.144 Justice John Paul Stevens, in memorializing Kennedy, identified her as an inspiration: “You cannot help but aspire to be a judge when you have the opportunity to clerk for Judge Kennedy. She was the consummate role model.”145
When Kennedy was asked about the possibility of a woman on the Supreme Court, she concluded, “I think there should be women—in plural—on the Supreme Court. Two or three would be just fine.”146 Kennedy was shortlisted by Ford and Reagan. Sometimes she learned about being considered for the Court from “people sending [her] articles from East Coast newspapers.”147 Her personal archives at the University of Michigan are filled with newspaper clippings and hundreds of letters of support of her nomination from friends, admirers, and strangers in Michigan and across the country. Reacting to Ford’s consideration of her for the Court, she observed, “I guess I knew that I could be considered for it, but as a Republican, it’s not too often that the President appoints someone of the opposite party when there are probably good candidates of his same party.”148 In 1975, Kennedy was distraught after reading a news article suggesting that the ABA rated her unqualified to serve on the Court, and that she was no longer under consideration because of her liberal leanings. In response, she wrote directly to Warren Christopher, the ABA Federal Judiciary Committee chair, asking him to clarify the rating issue: “These political characterizations don’t bother me, but I am concerned when my judicial qualifications are impugned.”149 The ABA in fact had been asked to screen Kennedy preliminarily, and in doing so gave her its “qualified” rating; while this was a step up from their review of Mildred Lillie years before, “it was still lower than their rating of several men on the list.”150
Although Kennedy would not make it off the Supreme Court shortlist, she removed the “Mr.” from “Mr. Justice” for the woman who would. Justice John Paul Stevens credited Kennedy with inspiring an 8–1 vote among the justices to change the brass name plates on the chamber doors after the two of them participated in a law school moot court competition in the mid-1970s.151 The competitors were all women, “excellent advocates” in the words of Stevens and “the best moot court that I attended in my years on the bench.”152 During the argument, however, he noticed Kennedy growing increasingly unhappy being addressed as “Madame Justice” by all of the female advocates. After the fourth did so, she questioned: “Why do you address me as Madame Justice? The word Justice is not a sexist term.”153 Upon Stevens’s return to Washington, he raised this issue with his colleagues and, as he explained it in a memorial for Kennedy:
Potter Stewart responded by stating that sooner or later we were going to have women serving on the Court, and that it would be wise to anticipate that change by substituting the simple term “Justice” for the term “Mr. Justice” that had formerly been the only accepted form of address to a Member of the Court and which then appeared on the brass name plates on the door to every Justice’s chambers. His suggestion was promptly endorsed, and by an eight-to-one vote put into effect. Thanks to the firm position expressed by one of the pioneer female members of the federal judiciary, an all-male institution anticipated and avoided one of the problems that might have confronted Sandra Day O’Connor (and the rest of us) when she joined the Court.154
If only Kennedy had complained about the lack of toilets for women in the Supreme Court. (There were no suitable facilities when O’Connor first went to the Court.) Perhaps she did not think about it since Florence Allen had secured that privacy for her in the Sixth Circuit along with the hot plate to warm her lunch. Addressing that challenge for the Supreme Court would be left to the first woman to join it.