4

The Shortlists following O’Connor

A Long Way from Nine

People ask me sometimes, when—when do you think it will be enough? When will there be enough women on the Court? And my answer is when there are nine.¹

—Ruth Bader Ginsburg, speech at Georgetown Law School, 2015

Sandra Day O’Connor spent over a decade as the only female on a court unprepared for her presence. No restrooms for women existed near the courtroom, so she had to use one located in a male justice’s chambers.² Even though the justices dropped the honorific “Mr.” several months before her appointment, two years later, the New York Times still referenced the “nine men” sitting on “SCOTUS” in an editorial. O’Connor fired back with a letter observing, “According to the information available to me, and which I had assumed was generally available, for over two years now, SCOTUS has not consisted of nine men.”³

This chapter examines the backgrounds of the few women who appeared but remained on Reagan’s subsequent shortlists and the women who, like O’Connor, eventually made it off the lists and onto the Court during future presidential administrations. O’Connor’s ascendance to the Court marked the end of decades of women being passed over and discounted. But the story does not end with the achievement of this “first,” no matter how historic it was. To the contrary, her nomination marked the beginning of a new chapter in a decades-old saga of persistent gender inequality. Before further exploring the dynamics that keep women on the shortlist, there is more to the story; other women were shortlisted by Reagan.

Reagan’s Post-O’Connor Shortlists

CYNTHIA HOLCOMB HALL, EDITH JONES, AND PAMELA RYMER

After the appointment of O’Connor, Reagan faced two more opportunities to nominate justices from an ever-growing list of qualified women. In addition to the five women he considered for O’Connor’s seat, Reagan later shortlisted Cynthia Holcomb Hall, Edith Jones, and Pamela Rymer for vacancies.⁴ Despite the ample number of women with impeccable credentials, the Reagan administration returned to Nixon’s tradition of shortlisting women as a political strategy without selecting any of them. With a woman finally on the Court, it seemed, the men in power were satisfied that the gender “box” had been checked. As one commentator noted, “The women, particularly Judge Hall and Judge Rymer, reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.”⁵ O’Connor effectively became a token, a dilemma we unpack more fully in chapter five.

Reagan’s “strategy” and the resulting dearth of women selected for federal judicial vacancies did not go unnoticed. In fact, the Senate conducted Oversight Hearings on Judicial Selection toward the end of his presidency in an effort to make sense of his dismal record in appointing diverse candidates. As an introduction to the hearings, Senator Ted Kennedy revealed statistics related to the appointment of women and minorities to the judiciary under Reagan’s watch. He explained:

These statistics make it clear that the Reagan administration has abandoned all pretense of promoting diversity in the Federal judiciary. Indeed, we will hear testimony today that the Reagan administration has never made a real effort to find qualified women and minorities to nominate to the Federal bench. The record suggests that in making nominations, the administration looks largely to a narrow cadre of white males who share its hardline judicial philosophy. While the President is surely entitled to appoint nominees who are mainstream conservatives, he should not be permitted to homogenize the Federal judiciary.⁶

The hearings included extensive and detailed testimony from several senators and outside experts. Senator Kennedy’s agenda for these hearings is best expressed by his insistence that “it is vitally important that all Americans have confidence that the Federal judiciary is not an exclusive club open only to white males.”⁷

Of the 343 federal judges appointed by Reagan by the time of these hearings, only five were black. (President Carter, by contrast, appointed 38 black judges among his 265 total appointments.) Similarly, only 8.4 percent of Reagan’s appointed judges up until the hearings were women, as compared to Carter’s 15.5 percent. According to Senator Patrick Leahy, “It did not have to be that way. This Administration could have reached out to nominate more minorities and women—skilled, experienced, talented men and women—who would make outstanding federal judges. The result would have been a federal bench no less excellent than the federal bench that makes up the Reagan legacy. But this Administration chose the easy way out. It chose the Reagan legacy, as our nation enters its third century, a federal court system that many Americans perceive as unprepared to provide equal justice to an increasingly diverse American population.”⁸ Reagan’s gubernatorial record of not appointing women followed him and similarly tainted his presidency.

Not all of the testimony in these hearings, however, expressed disapproval of Reagan’s record. Senator Alan Simpson’s remarks to the committee focused almost exclusively on the import of finding qualified candidates for the judiciary and resisted the idea of imposing a quota system.⁹ His observations implied that maybe there were not enough women and minorities who possessed the requisite qualifications to justify appointment to the federal judiciary. He praised Reagan’s efforts, highlighting that his record exceeded that of Ford, Nixon, and Johnson. Additionally, the testimony of Stephen Markman, assistant attorney general in the Office of Legal Policy, expressed a discernible defensiveness regarding the president’s record of diversity in judicial appointments.¹⁰

Reagan could have established an authentic legacy of equality on the Supreme Court. But instead he filled the additional vacancies of his term with men. When Chief Justice Burger announced his retirement in 1986, Reagan elevated Rehnquist to chief justice without considering any other potential nominees. Reagan replaced him with Antonin Scalia after also shortlisting Robert Bork. Scalia was confirmed 98–0. The final opportunity came with Justice Powell’s resignation in 1987. For this seat, Reagan initially shortlisted two women—Cynthia Holcomb Hall and Amalya Kearse—along with Bork again, whom he ultimately nominated. The Senate rejected Bork, however, with a vote of 42–58 after a fiercely contested battle led, in part, by civil rights and women’s rights groups. Renowned academics, including Judith Resnik (who would go on to serve Anita Hill’s legal team against Clarence Thomas), testified against him. Years later, Resnik wrote that “Bork’s belief that the Equal Protection Clause of the US Constitution did not protect women was an important factor in the Senate’s decision not to confirm him. So were several of Bork’s decisions involving women’s rights.”¹¹ Interestingly, in contrast, Carla Hills testified before the Senate Judiciary Committee on Bork’s behalf.¹² After Bork’s failed nomination, Reagan revised the women appearing on the shortlist, this time including Cynthia Holcomb Hall, Edith Jones, and Pamela Rymer. He also named Anthony Kennedy, who he selected and the Senate confirmed 97–0, though the additional women shortlisted by Reagan post-O’Connor—Hall, Jones, and Rymer—certainly did not lack in qualifications.

TABLE 4.1. Women Shortlisted for the Supreme Court by Reagan after O’Connor
Name	Birth–Death	Law School	Significant Professional Achievement
Cynthia Holcomb Hall	1929–2011	Stanford	Judge, Ninth Circuit Court of Appeals
Pamela Rymer	1941–2011	Stanford	Judge, Ninth Circuit Court of Appeals
Edith Jones	1949–	University of Texas	Chief judge, Fifth Circuit Court of Appeals

Cynthia Holcomb Hall

I know it helped that I was a woman, a Republican, and a judge. If I had been a bra-burning liberal, I probably wouldn’t have gotten the job.¹³

—Cynthia Holcomb Hall, Los Angeles Daily Journal (undated)

Cynthia Holcomb Hall credited her father with inspiring her to pursue a career, albeit not one in law.¹⁴ He encouraged her to choose a teaching career, something more in line with traditional gender roles. He was adamant that she figure out how to make a living on her own, wanting to make sure she could support herself should a future husband die at war. Hall did indeed pursue a career, though not the role he believed more suitable. His guidance about financial independence was wise, however; while she did not lose her husband at war, they did divorce, leaving her as a single parent until later remarrying. She attended Stanford University for college (graduating in 1951) and then law school (graduating in 1954), while also serving in the United States Naval Reserve from 1951 to 1953.

FIGURE 4.1. Cynthia Holcomb Hall (Credit: U.S. Court of Appeals for the Ninth Circuit, public domain)

Hall entered law school having never stepped foot into a courtroom or known a lawyer growing up. When she told her father she planned to attend law school, he responded, “Well I’d never marry a lawyer but I guess it’s no sin to raise one.”¹⁵ Hall was a year behind Sandra Day O’Connor at Stanford Law School and in the same class as John O’Connor, whom Hall befriended. He taught her how to annotate her lecture notes and, in her words, she “would not have gotten through it without him.”¹⁶ O’Connor had been Hall’s friend as an undergraduate at Stanford, regularly sharing meals along with William Rehnquist’s wife as well. The camaraderie from law school did not extend to the same sort of professional development networks men enjoyed, however, according to Hall: “I didn’t have people I’d studied with in law school, which the men did.”¹⁷ She was also criticized for “taking a good man’s place” and “wasting one of the few valuable spots” because presumably she would get married and never practice law.¹⁸

Following graduation, she became the first female clerk at the U.S. Court of Appeals for the Ninth Circuit, hired by Judge Richard Chambers in 1954. But even with the prestigious clerkship and her other impeccable credentials, the job search proved difficult. She received advice from one law partner to obtain a specialty degree, and so she attended NYU Law for an LLM in Taxation, graduating in 1960. She left her daughter behind with her parents because housing options did not accommodate a single parent. Hall recalled, “I couldn’t get into a law firm when I got out of law school. After getting a Master’s degree in the area of tax law, after spending—being a law clerk to a judge in the Ninth Circuit, after spending four years as a trial lawyer in the Tax Division of the Department of Justice, after spending two years on the staff of the Secretary of the Treasury in Tax policy, I then went out to look for a job in private practice.”¹⁹ Like most of the shortlisted women, private practice was not an immediate option until putting in years of service elsewhere.

Hall’s persistence paid off, however, and President Nixon nominated her to the Tax Court in Washington, D.C., in 1972. To entice her to take the position, her husband John was nominated at the same time as a deputy assistant secretary for tax policy so that they would not be forced to navigate a cross-country marriage. Apparently, such dual appointments were unprecedented in government, though it was not dissimilar to the double recruitment of Soia Mentschikoff and her husband Karl Llewellyn by the University of Chicago Law School. Hall was aware of the pervasive gender bias of the era, reflecting, “I don’t suppose anyone would ever have reached out to me had there not been an effort by the White House to look for women.”²⁰ Her hiring was part of the initiative spearheaded by Barbara Hackman Franklin to bring more women into senior positions during the Nixon administration.

Reagan later nominated Hall to the U.S. District Court for the Central District of California in 1981, a year after her husband died in an airplane crash. She was sworn in by Sandra Day O’Connor. In 1984, Reagan elevated her to the United States Court of Appeals for the Ninth Circuit.

When Justice Powell retired in 1987, a White House memorandum circulated describing her superb “confirmability”:

Judge Cynthia Hall is second in seniority (after Sandra Day O’Connor) among women federal judges appointed by President Reagan. Prior to her appointment in 1981, the Washington Post observed that she was the “sole woman known to be a strong contender for a judgeship” in the Reagan Administration. Her ten years as a federal trial judge preceding her appointment to the Ninth Circuit Court of Appeals make her, at the age of 56, one of the longest-sitting Republican women judges. Her academic, professional and intellectual qualifications are first rate. Throughout her tenure as a federal trial and appellate court judge, she has consistently evidenced a solidly conservative judicial philosophy … Throughout Judge Hall’s career, she has not attracted any negative publicity. To the contrary, she has been consistently mentioned in articles otherwise critical of the Reagan Administration’s judicial appointments. For example, she was a lonely bright spot in an otherwise dour article appearing in the Washington Post on September 10, 1982, entitled “Reagan’s Judiciary: Mostly White, Mostly Men.” … The National Women’s Political Caucus has criticized the President’s record in appointing women to federal judgeships as “abysmal” … Overall, Judge Hall appears to be the perfect Reagan judge. Moreover, she would have little problem with confirmation. She is a woman head of household with two bright children (she has been quoted in the press as wondering whether “women who give up a husband or a family to have a career, or give up a career to have a family … get to a point when they realize they’ve missed something. I liked having a husband, I love my children, and I wouldn’t give up my career for all the world, although I’ve worked hard to manage them all”) … Indeed, it is tough to find any shortcomings in Judge Hall save that she is 56 instead of 46 …

Judge Hall is an excellent prospect for the Supreme Court. As it happens, she is a woman, and the most qualified in the country of her gender. But more importantly, she stands shoulder-to-shoulder with the small group of male Supreme Court candidates, based solely on her merits.²¹

That same memorandum resurfaced during the George H. W. Bush presidency when other vacancies arose. Despite her pristine Supreme Court credentials, Hall remained on the U.S. Court of Appeals for the Ninth Circuit until she passed away in 2011.

Pamela Rymer

The women, particularly Judge Hall and Judge Rymer, reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.²²

—Reporter for the New York Times, 1987

Pamela Rymer was born in Knoxville, Tennessee, and attended Vassar College, like Sylvia Bacon, graduating in 1961. She immediately enrolled at Stanford Law School and graduated in 1964—just over a decade after Hall and O’Connor—and subsequently worked on Barry Goldwater’s presidential campaign. She entered private law practice in 1966 and became the first female partner of Lillick, McHose & Charles. She eventually founded her own firm, Toy and Rymer, where she worked from 1975 to 1983.

FIGURE 4.2. Pamela Rymer (Credit: Steve Gladfelter)

Rymer was nominated to the U.S. District Court for the Central District of California in 1983 by President Reagan. She soon became a contender for a seat on the California Supreme Court, but she removed herself from consideration to remain viable for a seat on the U.S. Court of Appeals for the Ninth Circuit. That decision was wise, as President George H. W. Bush elevated her to the Ninth Circuit in 1989. She was forty-eight years old at the time and remained unmarried without children. Her judicial appointment filled the opening left by Justice Kennedy when Reagan appointed him to the Supreme Court—Rymer stayed on the shortlist. Her reputation as a judge was for “her carefully reasoned decisions” and she “was considered one of the toughest sentencing judges on the U.S. District Court in Los Angeles.”²³ The ABA rated her “exceptionally well qualified,” but conservatives objected to her potential views on women’s rights and abortion. Throughout the duration of her career on the bench, Rymer authored more than 300 opinions.

Among her notable work on the bench, Rymer wrote for the majority in Planned Parenthood v. American Coalition of Life Activists,²⁴ decided by the Ninth Circuit in 2002, which held that the First Amendment does not protect internet threats against physicians who perform abortions. She joined the more liberal judges on the court, in a deeply divided 6–5 vote upholding a jury verdict and judicial injunction against an anti-abortion group. Rymer poured much energy into supporting Stanford University throughout her career, including service on the Board of Trustees, and was known to be an extraordinary mentor to her clerks. She was also described as “very elegant and always perfectly coiffed” and at the same time “something of a mystery outside of the courtroom, [leading] a very discreet private life.”²⁵ No funeral services were held when she passed away in 2011, and no survivors were listed in a press release issued by the Ninth Circuit.

Edith Jones

Judge Jones has been on the shortlist longer than most contenders have been on the bench.²⁶

—Reporter for the Wall Street Journal, 2005

Edith Jones was appointed by Reagan to the U.S. Court of Appeals for the Fifth Circuit in 1985. She studied economics at Cornell University, graduating with honors, and earned her law degree from the University of Texas Law School, where she served as a law review editor and graduated Order of the Coif. She began her professional life in 1974 at the firm now known as Hunton Andrews Kurth. Jones became the first female partner of the firm in 1982, an honor bestowed upon her while on maternity leave with her second child. While “an unknown commodity to most Houston practitioners when she was appointed”²⁷ to the Fifth Circuit, she quickly established a reputation as a strong and outspoken conservative. Her judicial opinions have called into question the Roe v. Wade²⁸ abortion decision, supported expediting death penalty executions, and she has also spoken openly about the importance of “moral values.”²⁹ Additionally, she supported the creation of stricter bankruptcy laws, and in a 1997 opinion overturned a federal ban on the possession of machine guns.³⁰ According to a White House memorandum vetting her potential candidacy for the Court, she was “tough on drugs” and “genuinely concerned with protecting the rights of mentally retarded and handicapped citizens.”³¹

FIGURE 4.3. Edith Jones (Credit: University of Houston Law Center)

Not only was she shortlisted by Reagan, but, like Hall, she resurfaced when President George H. W. Bush needed to fill a vacancy with the resignation of William Brennan. She must have come extremely close to being selected. The Bush presidential archives contain an official speech printed on heavy, formal paper that reads:

My oath to the Constitution charges me to faithfully execute the Office of President and to the best of my ability preserve, protect, and defend the Constitution of the United States. Few duties are more important in discharging that obligation than my responsibility under Article II, Section 2 of our Constitution to select, from among all possible choices, one nominee to fill a vacancy on the Supreme Court of the United States. The task of narrowing the selection to one highly qualified jurist committed to the rule of law and faithful to the Constitution could never be easy, but I have found it enormously satisfying. My choice, I think, will serve the Court and the Constitution well.

I am most pleased to announce that I will nominate as Associate Justice of the United States Supreme Court a remarkable woman of vigorous intellect and first-rate ability—a firm Judge, a fair Judge, and a Judge committed to interpreting the law—Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit. Judge Jones, I believe with all my heart, will prove a worthy Member of the Court. Let me pay tribute to the man whose retirement from the Court created the vacancy I will nominate Judge Jones to fill, Justice William Brennan.³²

Jones joked in a handwritten thank-you note to President Bush after meeting with him to discuss her candidacy that it “was the first ‘job interview’ I’d had in 17 years—since I first went to Andrews & Kurth.”³³ Some were surprised by Bush’s selection of David Souter over Jones. Others speculated that she would be the choice when another vacancy opened. Instead, Jones served as chief judge of the United States Court of Appeals for the Fifth Circuit from 2006 to 2012, and, in 2019, remained on the court after stepping down from this leadership role. (She was subsequently shortlisted by George W. Bush in his eventual selection of John Roberts, Harriet Miers, and Samuel Alito.)

George H. W. Bush shortlisted no women when he faced another vacancy, and he selected Clarence Thomas to fill Justice Marshall’s seat in 1991, though, as noted previously, Amalya Kearse’s name was floated as a possible back-up plan had Thomas’s nomination failed in the wake of the Anita Hill controversy. Bush instead appointed “rich, white men” to the federal judiciary, giving him a “lackluster record … all the more disappointing because the pool of qualified women and minority candidates increased greatly.”³⁴ A report by the Alliance for Justice found “[o]nly 7 percent of the president’s court appointees are black or Hispanic … and 14 percent are women.”³⁵ Nan Aron, executive director of the Alliance for Justice, critiqued his record, saying “Bush judges could not be less representative of the American people in whose name they render judicial verdicts.”³⁶ Of course, this was an improvement, however modest, over previous administrations other than Carter.³⁷

The Handful of Women Who Made It Off the Shortlist after O’Connor

During the Senate hearings critiquing Reagan’s record of appointments, Senator Leahy addressed the committee in the following way: “The Reagan legacy of a federal bench largely closed to minorities and women was an avoidable disappointment. Over the last few decades, the legal profession as a whole has benefited from an influx of talented members of previously excluded groups. This trend has accelerated during the 1980s. But as the bar has become more diverse, more reflective of American society as a whole, the federal bench has become less diverse.”³⁸ Leahy was correct that law schools were graduating more women and minorities than in the past, but the coveted power positions in law and elsewhere were still reserved for white men. While the judiciary has, over time, become a place of greater diversity than other parts of the legal profession, it still has a long way to go.

After Reagan, every president shortlisted at least one woman for the Supreme Court during his time in office, though not for every vacancy—as we note above, George H. W. Bush created an all-male shortlist when he nominated Thomas. What once was unimaginable—a woman on the shortlist, let alone the bench—is now accepted as the norm. Women regularly appear among the official pool of Supreme Court contenders.

In some ways, this represents progress to celebrate, since one must be on the shortlist in order to be selected. In other ways, however, the shortlists for the Supreme Court and other positions of leadership or power have become political tools. They function as nothing more than hollow nods toward equality while legitimating prejudice and bias as more white men are selected. We explore the consequences of shortlisting in law and other professions in the second half of the book.

Unlike the shortlisting process, which occurs behind closed doors through networks of private relationships, the confirmation process is very public. Candidates are assessed by bar association committees, paraded through the halls of Congress, scrutinized by the media, and subjected to long days of countless questions in Senate hearings. The public nature of the confirmation process affords greater detail about the unequal experiences of women. Four women join O’Connor in receiving the honor of being nominated for the Supreme Court, three of whom were confirmed.

TABLE 4.2. Women Nominated for the Supreme Court after O’Connor
Name	Birth–Death	Presidential Shortlist	Law School	Significant Professional Achievement
Ruth Bader Ginsburg	1933–	Clinton	Columbia; Harvard	Judge, D.C. Circuit Court of Appeals
Harriet Miers	1945–	G. W. Bush	Southern Methodist University	White House Counsel
Sonia Sotomayor	1954–	Obama	Yale	Judge, Second Circuit Court of Appeals
Elena Kagan	1960–	Obama	Harvard	U.S. Solicitor General

Ruth Bader Ginsburg

We should not be held back from pursuing our full talents, from contributing what we could contribute to the society, because we fit into a certain mold, because we belong to a group that historically has been the object of discrimination.³⁹

—Justice Ruth Bader Ginsburg in an interview with journalist Lynn Sherr, 2001

Twelve years and four vacancies passed after O’Connor was appointed before a second woman would go from shortlisted to confirmed. President Clinton was just three months into his presidency when notified of Byron White’s retirement. This occurred on the heels of the debacle of the Thomas confirmation, where Anita Hill’s highly credible accusations of his sexual harassment ushered in 1992’s “Year of the Woman,” during which women swept into political offices in unprecedented numbers. Ruth Bader Ginsburg rode that wave, but she was not Clinton’s first choice, and women’s groups—both conservative and liberal—opposed her. Feminist law professor Catherine MacKinnon critiqued Ginsburg’s philosophy that men and women should be treated equally under the law as ignoring the historic oppression of women. Additionally, abortion opponents and champions alike expressed concern about her appointment.

FIGURE 4.4. Sandra Day O’Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan (Credit: Steve Petteway, photographer for the Supreme Court of the United States, public domain)

Clinton’s top pick was reportedly New York’s governor Mario Cuomo, whom he courted for months. When Cuomo let the opportunity pass, Clinton mused about other possible candidates, including his own wife, Hillary Rodham Clinton. At the same time, Marty Ginsburg was working behind the scenes to secure support for his wife’s candidacy from across the country, seeking letters authored by lawyers, legal scholars, and political organizations. Ruth Ginsburg had an impeccable background that made her particularly well-suited to be elevated to the Court. She attended Cornell University for undergraduate and started law school at Harvard, where she was one of nine women in a class of 500. She transferred to Columbia Law School, and tied there for first in her class at graduation, where she later served as a tenured professor after beginning her academic career at Rutgers School of Law. She became general counsel for the American Civil Liberties Union in 1973 and was appointed by President Carter to the U.S. Court of Appeals for the District of Columbia in 1980. Ginsburg argued six cases—and won five of them—in front of the Supreme Court before she became a judge, all of which dealt with gender discrimination in some way.⁴⁰

After Clinton selected her from his shortlist as the nominee, the media attention immediately focused on her gender. One article encouraged senators to “Treat Judge Ginsburg Like a Man.”⁴¹ Another reporter noted that Ginsburg’s “whole career, not only her gender,” rendered her qualified for the position.⁴² The media also focused on Ginsburg’s personal life, particularly on her relationship with Marty and their seemingly unconventional but unquestionably loving and supportive marriage, in which he supported her career and handled domestic tasks. In “The Man Behind the High Court Nominee,” a reporter for the New York Times wrote that “[e]ven though she had established an extraordinary record as a lawyer and teacher, Ms. Ginsburg has acknowledged that without the strong personal and political support of her husband, she may never have become President Clinton’s choice for the Supreme Court.”⁴³ In the Washington Post, Ginsburg’s husband was named “The Spouse of Ruth; Marty Ginsburg, the Pre-Feminism Feminist.”⁴⁴ Among the more interesting passages from this article is a reflection on Ginsburg’s skills as a new wife, describing her as a “complex young woman with large ambitions, [who] placed a lumpy mass of tortured protein on a plate in front of the person she had recently married,” insisting it was “tuna fish casserole.”⁴⁵ Ginsburg was “phased … out of the kitchen at a relatively early age” because her children found their father to be a better cook.⁴⁶ The Washington Post called Ginsburg “motherly enough for traditionalists.”⁴⁷

Notably, in our media study that examined articles written by the New York Times and the Washington Post about Supreme Court nominees from 1970 to 2010, not one of the male nominees’ domestic abilities, such as cooking skills, received attention. By contrast, details about the domestic capabilities (or lack thereof) for all of the female nominees made the headlines.⁴⁸ Fortunately, the Senate did not require excellence in the kitchen as a prerequisite to confirmation, and voted 96–3 to appoint Ginsburg in 1993, making her the second woman, and first Jewish woman, to join the nation’s most prestigious judicial body.

After giving the country its second female justice, Clinton later shortlisted Amalya Kearse, who previously appeared on Reagan’s shortlist, but he ultimately selected Stephen Breyer for Justice Blackmun’s seat in 1994. Like Reagan, President Clinton was happy to check the woman box for the shortlist but not willing to actually select more than one woman for the Court. One token female Supreme Court nominee per president was apparently the limit.

Harriet Miers

So conservatives are caught between loyalty to their ideas and loyalty to the president they admire. Most of them have come out against Miers—quietly or loudly. Establishment Republicans are displaying their natural loyalty to leadership. And Miers is caught in the vise between these two forces [conservatism and Republicanism], a smart and good woman who has been put in a position where she cannot succeed.⁴⁹

—David Brooks, New York Times op-ed, 2005

Harriet Miers was the third woman officially nominated for the Supreme Court in 2005, making it off President George W. Bush’s shortlist that included three other women: Edith Jones (yet again!) and two other judges from the U.S. Court of Appeals for the Fifth Circuit—Edith Clement and Priscilla Owen. When O’Connor announced her retirement, she and others, including Justice Ginsburg and first ladies Hillary Clinton and Laura Bush, publicly expressed hope that the president would name another woman to the Court. Instead, he nominated John Roberts, then a judge on the U.S. Court of Appeals for the D.C. Circuit. (Perhaps not coincidentally, Roberts, while working in the Office of Legal Counsel in the 1980s, had helped prepare O’Connor for her own Senate confirmation hearings.) But, just over a month after the announcement, Chief Justice Rehnquist passed away, leaving Bush with two simultaneous vacancies to fill. Bush then nominated Roberts to fill the role of chief justice, and obliged the wish of his wife and others for a woman by selecting White House Counsel Miers. Similar to Justices Clark, Murphy, Rehnquist, and White, Miers had worked to vet candidates when Roberts was selected only to then find herself the nominee. Unlike those men, however, her candidacy would be fraught with controversy.

As with many of the women profiled in this book, Miers overcame significant family hardships in her youth before she accomplished many firsts as a female lawyer. Her family fell into debt after her father suffered a stroke during her first year as an undergraduate at Southern Methodist University (SMU). She persevered and secured admission to SMU’s law school, one of seven women in a class of almost one hundred. Miers excelled in law school, landing a spot on the law review and then a judicial clerkship with Texas District Judge Joe Estes after graduation in 1970. She then joined the Dallas firm Locke, Liddell & Sapp, where she was eventually named the first female managing partner.

FIGURE 4.5. Harriet Miers, with President George W. Bush (Credit: White House Photo by Paul Morse, public domain)

Miers practiced law for decades and was the first female president of both the Dallas Bar Association and the Texas State Bar Association before serving George W. Bush during his time as governor of Texas in 1995. She also chaired the Texas Lottery Commission, leaving that role in 2000 as Bush anticipated a White House campaign. After his inauguration, she held several roles in the administration, including assistant to the president, deputy chief of staff for policy, and White House counsel, the position she held when Bush announced his intention to place her on the Court in 2005.

Miers’s many years of government service providing legal counsel to a governor and president are what led Bush to select her for the vacancy. Indeed, some might say that she had been on a decades-long interview and vetting for the role. While she did not graduate from one of the more prestigious law schools that recent nominees claim as their alma mater, like Yale or Harvard, she was at the top of her class at a well-regarded institution at a time where women were rarely present in any law school. She consistently rose to the highest leadership roles in her firm and bar organizations.

However, even with these strong credentials, Miers was critiqued as being inexperienced for not having served as a judge, though others on the Court over the years lacked this experience, including William Rehnquist (the seat Miers would fill) and Elena Kagan, who would later make it off President Obama’s shortlist. Conservatives questioned Miers’s commitment to their values, much like they had done to Mildred Lillie. Similarly, the media focused endlessly on her appearance and status as a single woman. The New York Times and the Washington Post reminded readers of Harriet Miers’s fondness for “girls’ nights out”⁵⁰ and engaging in “a lot of girl talk”⁵¹ with “Condi and the other single girls,”⁵² referencing then-Secretary of State Condoleezza Rice. Reporters noted that “Miers enjoys the absolute confidence of the president, who once called her ‘a pit bull in size 6 shoes,’” and that in her youth, “Harriet was blond, pretty and athletic—she captained the tennis team as a senior, and was voted ‘best all around in sports’—but she was known as more serious than social. While the cool girls wore bouffant hairdos, she wore a long braid wound modestly around her head.”⁵³ Another article reported that “[h]er red Mercedes-Benz was such a fixture in the West Wing lot that colleagues called it an abandoned car; she has never married or had children, and some of her friends believe she has sacrificed her personal life for work.”⁵⁴

Robert Bork, whose own confirmation process derailed, wrote a scathing op-ed in the Wall Street Journal, complaining that “[t]he administration’s defense of the nomination is pathetic: Ms. Miers was a bar association president (a non-qualification for anyone familiar with the bureaucratic service that leads to such presidencies),”⁵⁵ even though Justice Powell’s service as president of the American Bar Association had been touted among his exemplary credentials for securing his seat on the Court. Nixon, for one, lauded Powell’s experience as “President of the American Bar Association, and [noted] in that … role he provided leadership in the provision of legal services for the needy and with revision of the standards for criminal justice.”⁵⁶ An asset for a male nominee was characterized as a liability for a female nominee, a phenomenon that by now is all too familiar for readers of this book.

Rather than emphasize her actual qualifications as a skilled lawyer and leader, the administration touted her religious convictions—an evangelical Christian who, by implication, would vote to overturn Roe v. Wade⁵⁷—in an effort to appease conservative critics. This strategy failed. Miers withdrew her name from consideration after only twenty-four days. In her place, Bush nominated Samuel Alito, who was confirmed with minimal controversy by a vote of 58–42, mostly along partisan lines. The media focused little on his personal life and, to the extent it did, highlighted lawyerly qualities: “As a parent, Judge Alito appears to follow his parents’ model. Hilary Monaco, a friend and neighbor, said she and Judge Alito spent many hours coaching the high school mock trial team. He taught the students, including his son Philip, the rules of evidence and how to write opening and closing statements. In 2001, the team made it to the county semifinals—its best performance, she said.”⁵⁸ There was no mention of Alito’s boys’ nights out, hairstyles, or shoe size.

Sonia Sotomayor and Elena Kagan

Here we go again. For the second time in a year, a childless, unmarried woman in her 50s has been nominated to be a justice on the Supreme Court and the critics have come out swinging.⁵⁹

—Reporter for the New York Times, 2010

President Barack Obama broke with the token tradition of his predecessors, not only shortlisting numerous women⁶⁰ but selecting two women for seats on the Court: Sonia Sotomayor in 2009 (also the first Latina) and Elena Kagan (the second Jewish woman) in 2010. Sotomayor’s education places her among the most well-pedigreed justices, having graduated summa cum laude from Princeton in 1976 and from Yale Law School in 1979. She worked in government and private practice, first as an assistant district attorney in New York County followed by time at Pavia & Harcourt. She became a judge of the U.S. District Court, Southern District of New York in 1992, appointed by President George H. W. Bush, where she remained until President Clinton appointed her to the United States Court of Appeals for the Second Circuit in 1998. Ten years later, President Obama nominated her to the Supreme Court, where she was confirmed by a vote of 68–31 in 2009.

Equally well-pedigreed, Kagan also attended Princeton, graduating summa cum laude in 1981, and then Harvard Law School, graduating magna cum laude in 1983. She clerked for Justice Thurgood Marshall and worked for many years in government. She was the first female solicitor general, appointed by Obama in 2009. Kagan also taught at the University of Chicago Law School (with Obama) and Harvard Law School, serving as Harvard’s dean from 2003 to 2008. Like Miers, Kagan had no experience as a judge. She had not even argued a case in any court until she did so in 2009 as solicitor general. Just a year into that role, she was confirmed to the Court by a vote of 63–37.

While the selection of two women by the same president signaled significant progress, the gendered media coverage of their professional and personal lives rivaled that describing Mildred Lillie in her bathing suit in the early 1970s. Criticism leveraged against the two women regarding beauty, fashion sensibility, marriage, motherhood status, and sexuality accompanied the usual assessment of qualifications and experience for Supreme Court nominees. As one commentator wrote when Obama contemplated filling his first vacancy:

Consider the two women widely considered the frontrunners for the nomination: former Harvard Law School dean and current Solicitor General Elena Kagan, and federal appellate judge Sonia Sotomayor. Within hours after the news broke that Souter was resigning, concerns arose that Kagan and Sotomayor might be too fat to replace him. A commentator on the site DemConWatch.com noted that of the three most-mentioned candidates “the oldest (federal judge Diane Wood) is the only one who looks healthy,” while Kagan and Sotomayor “are quite overweight. That’s a risk factor that they may not last too long on the court because of their health.” The author further quipped, “For some men, the only thing more intolerable than the sight of a powerful woman is the sight of a powerful woman they don’t want to sleep with.” The author went on to observe, however, that the news coverage about the female candidates’ weight and health is “destructive” and that if “we were really concerned about medical risk factors that actually do have a significant negative correlation with a candidate’s life expectancy, the most relevant is one that has afflicted 108 of America’s 110 Supreme Court justices: being a man.”⁶¹

Much attention was devoted to Sotomayor’s lack of a personal life, similar to that which surrounded Harriet Miers. One headline declared “Sotomayor: A Single Supreme?,” and the article reported, with exuberance, that there was yet “[a]nother first on the Supreme Court! If Sonia Sotomayor is confirmed, she’ll be its first … bachelorette.”⁶² The article went on to describe her first failed “college marriage,” her subsequent “fizzled” engagement to Peter White, and her current single status.⁶³ The author projected pity on Sotomayor: “Who’s going to accompany her to those fancy White House dinners?”⁶⁴ Similarly, an additional article appearing in the New York Times, titled “A Trail Blazer and a Dreamer,” reported that Sotomayor, “[d]ivorced and with no children, … enjoys the ballet and theater”⁶⁵ instead of a robust domestic life. The Washington Post ran the headline “Friends Provide Glimpse Into Nominee’s ‘Very Full Life,’” noting that, “[a] 54-year-old divorced woman who never had children, Sotomayor is said to be a workaholic who fills her free time with a huge network of close friends, extended family members, colleagues, former classmates and just about anyone else who has entered her circle.”⁶⁶ The article interviewed her friends as saying that “[o]ut of deference to her privacy, the one topic [of] Sotomayor’s [they] won’t discuss is her personal relationships.”⁶⁷ But the reporters made sure to confirm “that Sotomayor ‘does date.’”⁶⁸

The novelty of the nomination of the first single woman to the Supreme Court did not wear off even after Sotomayor’s confirmation. The New York Times headline “Then Comes the Marriage Question” appeared during Kagan’s nomination.⁶⁹ The author wrote, “This time Elena Kagan, the former dean of Harvard’s law school, who is now solicitor general, has been described as having sacrificed a home and personal life in her quest for a brilliant legal career.”⁷⁰ The Washington Post ran a similarly-themed article with the following headline: “The Supreme Court Needs More Mothers.”⁷¹ The story articulated how alive and well the prejudice surrounding motherhood continues to be, even into the twenty-first century: “Motherhood offers a one-word verifier. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and intimacy, all outside the workplace. Much of the time, it’s the opposite of being strategic and assiduously prepared.”⁷² The role that kept generations of women from the workplace—motherhood—was now deemed essential for a “respectable” nominee. Two days later, the New York Times published an article entitled “Judging Women,” in which the author observed, “If Elena Kagan is confirmed by the Senate, there will be three women on the Supreme Court for the first time. This is a measure of how far women have come. Two will be single and childless. This may be a measure of something else entirely.”⁷³ What exactly that “something else” might be is left unsaid, but the author seems to imply a world where women cannot be both justices and mothers. “She really is a thinker,” a colleague said of Kagan.⁷⁴ “She is not married and she doesn’t have family in her life. Her books are, in many ways, her companions. She has a lot of friends. But she’s lived alone, and the world of books and ideas is her world.”⁷⁵ One reporter observed that “double-entendre wisecracks about Kagan’s softball prowess were all the rage on Fox News and MSNBC.”⁷⁶ An article in the Washington Post explained about Kagan, “[s]he’s not gay, okay? Actually, the all-too-public discussion about the ought-to-be private topic of Elena Kagan’s sexuality would be easier if the Supreme Court nominee were gay.”⁷⁷

President Obama faced a third vacancy about a year before the end of his second term when Justice Scalia passed away unexpectedly. Obama shortlisted⁷⁸ three women and three men, and nominated Merrick Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit. Republicans, controlling both houses of Congress at the time, refused to hold confirmation hearings or a vote, leaving the seat vacant until after the 2016 presidential election. President Donald J. Trump filled the seat along with that vacated by Justice Kennedy soon after taking office, both seats going to men even though several women appeared on the shortlist. We return to Trump’s shortlists and selections at the end of the book in chapter eight.

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As this book went to press, an entire decade had passed since a woman was last nominated to the Supreme Court. It bears repeating, and remembering, that less than half of one percent of Supreme Court justices since the founding of this nation have been women. We are a very long way from Ruth Bader Ginsburg’s nine. But what might we learn from the shortlisted women profiled here? The second half of the book turns to an exploration of the personal and professional lives of these extraordinary women to illuminate and address solutions to the continued gender inequities that persist for positions of power and leadership not just on the Supreme Court, but throughout the legal profession … and beyond.