Neither forget nor remember that you are a woman, as paradoxical as that sounds. Unconscious femininity is an aid in public life.1
—Advice from Florence Allen in a speech from 1926, as recalled by Cynthia Holcomb Hall in her oral history
Each of the shortlisted women sought meaningful professional pursuits and personal connections, sometimes in alignment but often in seeming contradiction as they navigated double binds and, in some instances, double lives. We previewed a few of the ways that these issues manifested in part one of the book, but here we take the time to explore some of the more significant complexities in greater detail. We consider these contradictions to make a case for a whole life, blending the personal and the professional, rather than simply repeating what is often a hollow call for work-life balance, where one aspect of our lives is often compromised for another. Our goal is not to criticize, but instead to find inspiration from our shortlisted sisters as we extract lessons for remedying the remaining gender inequality that persists in positions of leadership and power. By challenging the artificial dichotomies and common narratives fraught with socially constructed myths foisted upon women throughout history and today, we encourage everyone to live authentic, unified lives, unafraid of professional consequences based on personal choices like how one appears or who one loves.
One reason there is so much difficulty challenging inequality and sexism is that, as a subordinated group, women are often confronted with “double binds,” or “situations in which options are reduced to a very few and all of them expose one to penalty, censure or deprivation.”2 Being trapped in a double bind means constantly facing a false dichotomy, where a “winning” solution is not immediately apparent, and undesirable consequences attach to either of the two choices, often at the cost of sacrificing authenticity and peace of mind. The concept of double binds has been broken into specific categories by one scholar and includes “womb/brain,” “femininity/competency,” “silence/shame,” “sameness/difference,” and “aging/invisibility.”3 As but one example, the femininity/competency double bind describes situations where women must forsake femininity if they want to be taken seriously in the workforce. But adopting more stereotypical male characteristics is not a solution either, as their gender non-conformity is seen as problematic and discrediting. Similarly, “[w]omen often face a form of glass ceiling bias that is a ‘Catch 22’: either they are penalized for not being competent enough or for being too competent.”4
We appreciate how these lived experiences can be reduced to discrete categories in order to clarify the challenges women face, but we also see a good deal of fluidity among the categories and reject them as absolutes. This chapter is organized around similar themes that arose in the lives of the shortlisted sisters. We explore the binds, conundrums, and contradictions as they relate to (1) feminism/racism; (2) appearance/femininity/respectability; (3) professional and intimate relationships; (4) motherhood/competing careers; and (5) age.
The degree to which our research allowed glimpses into the private, intimate lives of the women in this book varied greatly. There is more readily-available material for the women who were shortlisted early on, most of whom are deceased, and many of whom left their papers and other personal documents, including lengthy oral histories, to libraries for archival purposes. For the women still living, fewer resources are available. The variance in access to material means that there is a greater focus on some of the women than on others, but this should not be taken as an indication of the absence or presence of any of these issues in the women’s lives if they go unmentioned.
The suffrage struggle itself took on a similar flavor, acquiescing to white supremacy—and selling out the interests of African-American women—when it became politically expedient to do so. This betrayal of trust opened a rift between black and white feminists that persists to this day.5
—Brent Staples, New York Times Editorial Board, 2018
One might think that the shortlisted sisters would naturally be at the forefront of efforts to make the path easier for future women and minorities to follow in their footsteps. But the women did not universally take up feminist issues and they did not all share the same perspectives as to what it meant to advance women’s rights or other causes. Some held outright racist beliefs and differed as to whether they let these beliefs affect their professional lives and judicial decision-making. The viewpoints of the women featured in this book varied markedly on social movements and ideas.
Florence Allen came of age during and was very active in fighting a significant political battle: the women’s suffrage movement. Allen’s skill at keeping her words short, honed by her mother’s advice growing up, served her well: “In the suffrage campaigns the men in the meetings who were friendly to us would sometimes give us a chance to speak for five, three, or even two minutes. If we spoke more than the allotted time it would hurt the cause, so we earnestly tried to keep within our time limitation.”6 On the one hand, Allen’s mother’s advice was sage. It helped Allen and others at that time work within the gendered power structure and maximize their effectiveness to advance causes they cared about. On the other hand, women’s voices to this day are still often ignored, cut off, or dismissed outright. Men are rewarded for their long-winded monologues to such an extent that women have created names for the occurrence: “mansplain” and “manologue” are now part of our contemporary lexicon. Professional conferences regularly featuring panels of all-male speakers are scorned as “manels.” And these notions are more than just anecdotal.
Research documents how women’s voices are often not heard, and their speech is frequently interrupted by men. Scholars studied this problem in Supreme Court oral arguments, finding that the female justices are more frequently interrupted by their male peers and by counsel.7 Ruth Bader Ginsburg faced this throughout her entire career: “I don’t know how many meetings I attended in the ’60s and ’70s, when I would say something, and I thought it was a pretty good idea. Then [a man] would say exactly what I said. Then people would become alert to it, respond to it.”8 Even after sixteen years on the Court, she observed, “I will say something—and I don’t think I’m a confused speaker—and it isn’t until [a man] says it that everyone will focus on the point.”9 So while Allen’s mother’s advice was sound at the time, it nonetheless reinforced a specific place for women and parameters within which they must behave if they were to successfully participate in the male-dominated political and public spaces.
Despite Allen’s strongly held beliefs that women deserved the right to vote, she did not always favor policy initiatives to advance women’s rights. She opposed the Equal Rights Amendment. Allen’s position might today seem a contradiction given the very progressive life she herself led as an activist, lawyer, and judge, but it was actually consistent with the views many women held at the time.10 As we explore later in this chapter, Allen was a woman who herself confounded heterosexual norms because she was intimately involved in relationships with other women. The contradictions inherent in Allen’s life or that of any of the shortlisted women should not automatically be taken as an affront to women or feminists. Indeed, this reflects the diversity among women, reinforces even more strongly the problems with tokenism, and further highlights the need for representation of many women on the bench, in the courtroom, and in the boardroom.
Allen was not alone among the shortlisted sisters in her position on the ERA and other women’s rights issues. Soia Mentschikoff feared that the legislation would lead to “endless litigation.”11 Edith Jones said she “always opposed the ERA as being unnecessary to the fundamental distinction between men and women, and leading to unforeseeable and unfortunate consequences.”12 Mildred Lillie was also likely not a fan—when vetted by the Nixon administration for a seat on the Court and questioned about “the women’s lib movement, she said she stayed far away from it and personally considered it to be somewhat dangerous.”13 And Susie Sharp, while publicly expressing a desire for equal opportunities between the sexes, strongly believed married women with children ought to stay home: “You have got to choose. When you get old and decrepit, you might rather have grandchildren than a lot of honorary degrees. You can’t have both.”14 She objected to women trying to balance both family and career. Sharp so strongly opposed the ERA that she actively lobbied legislators for its defeat while she was on the bench even though, as a general matter, she was a stickler for separating politics from her role as a judge. Some in fact criticized her judicial activism on the ERA as an inappropriate merging of politics with the judiciary. By contrast, while Cynthia Holcomb Hall did not actively advocate for the amendment because of her role as a judge, she was personally in support of it: “I don’t understand how anybody could be against it?”15
Mentschikoff also was not what one might describe as a conventional feminist. She was an active leader in professional roles, serving as a reporter for the American Law Institute, the most prestigious legal organization in the country, and the first female president of the Association of American Law Schools, a national association for members of the legal academy. But she did not promote other women unless she felt they “earned” it. According to Roberta Ramo, a lawyer who attended the University of Chicago Law School from 1967 to 1970:
People always want to know if she was a great mentor to the other women in the law school.… She did not go out of her way at all for women until after the first year because she wanted to see if you were smart enough. Her theory, I believe, was that it was so difficult for a woman to make it in the law that she didn’t want to encourage anybody who wasn’t going to be at the very top of their game because they would never get anywhere.… But she didn’t really see it as her job. I think she felt—and I don’t really blame her at all for this, this is the world in which she had grown up—that women had to fight to make a place in the law for themselves. And that her mollycoddling, which is how she would have viewed it, really wasn’t going to give anybody much help at all.16
Mentschikoff was described as “not likely to initiate supportive relationships; she was often quoted as saying women were responsible for their poor representation in law school.”17 Yet, she supported meritorious women, advocating for scholars like Harvard Law Professor Mary Ann Glendon, and exchanging letters with former student Carol Mosley Braun in her early years of law practice. (Braun would go on to be elected as a U.S. senator during 1992’s “Year of the Woman.”) Similar to Allen refusing to take on the divorce docket, Mentschikoff declined to author an article on the subject of “Women Lawyers—Estate Planners” for the Harvard Law School Record in 1951 because, as she explained, “I feel deeply that women lawyers should not be limited to this type of activity.”18
Cornelia Kennedy, too, sometimes took positions that could be perceived as at odds with the rights of women. In one case, Kennedy found against a sexual harassment victim, voting to “take away a $250,000 jury award from a woman who won,” but in another context, upon learning “that the husbands of judges received fewer spousal benefits than wives did, she successfully campaigned for equality.”19Another example of women not always supporting the same causes was Carla Hills’s testimony on behalf of Robert Bork’s confirmation to the Supreme Court. As noted in part one of the book, she lent her support even in the face of significant protests against him by women’s rights groups. As mentioned in part one, “affinity groups” expected Amalya Kearse to take up the causes of women and blacks as an activist, but she did not.20 Nonetheless, some of the women expressed support in unexpected ways. Kearse’s judicial opinions, for example, revealed support for women’s issues and civil rights.
Some of the women held openly racist views. Cornelia Kennedy’s decision as a district court judge was reversed by the U.S. Court of Appeals for the Sixth Circuit when she found that a Detroit suburb’s all-black school was not the product of the school district’s intent to segregate. When considered for an appointment on the Sixth Circuit herself, the National Association for the Advancement of Colored People (NAACP), the National Bar Association, the Michigan chapter of the National Conference of Black Lawyers, the Wolverine Bar Association, and a number of prominent law professors compiled voluminous reports based on extensive review of her judicial opinions. These organizations unequivocally determined that she was not an appropriate pick due to her exceedingly anti-plaintiff record on cases dealing with civil rights, race discrimination, police brutality, and prisoners. Prominent attorney Dennis Archer, who would later become a Michigan Supreme Court justice and the first African American president of the American Bar Association, concluded, “A plaintiff cannot win in a civil rights case before her.”21 To smooth things over, the Carter administration packaged Kennedy’s nomination with that of Nathaniel Jones, then-general counsel of the NAACP. Both were confirmed.
Susie Sharp’s personal views were also racist. She believed strongly in segregation and the North Carolina constitutional ban on interracial marriage. In contrast to Kennedy, however, Sharp did not seem to let these perspectives impact her judicial decision-making. Sharp “was an admitted racist, yet she delivered irreproachable judicial decisions with race.”22 She was the first judge to issue an order ending segregation in Charlotte’s public spaces. In that case, the Bonnie Brae golf course excluded black people, and sixteen plaintiffs challenged this ban in 1952, seeking an injunction to end the practice. Sharp granted the injunction based upon Supreme Court cases desegregating public spaces like beaches, state parks, and golf courses. But she didn’t want to: “I could feel [NAACP lawyer Spottswood Robinson’s] hatred and I had the impression that he could feel mine because I had to grant him the injunction but despised having to do so.… [W]asn’t it the irony of fate that I, who would almost have preferred to close it down, had to order the course opened to them.”23 In many ways, her blatant racism is abhorrent, and yet, at the same time, Sharp was able to set aside personal views to apply the law in a way that achieved justice.
The suffrage movement Allen was such an integral part of was itself marked by massive contradiction regarding race. While advocating for women’s rights, a number of the well-known suffragists embodied racist views, both implicit and explicit. Many were unwilling to involve black women in their efforts, sacrificing inclusivity for their (white) gendered priorities related to securing the franchise. Allen, however, did not seem to personally embody such explicit racist views. One historian noted, “Her stance on the rights of racial minorities to equal treatment was generally ahead of the times.”24 Allen decided one case in particular, State ex rel Weaver v. Board of Trustees of Ohio State University,25 which offers some insight into her views on race. There, Allen ruled against a black college student who sued Ohio State University, claiming that she was being denied access to education as a result of an unfavorable housing arrangement. Some critiqued her position, and she was questioned about the case during her confirmation hearings for the U.S. Court of Appeals for the Sixth Circuit. One historian explained Allen’s position, which on the face of it may have appeared to have racist undertones: “Judge Allen attempted to distinguish between academic rights and social prerogatives related to residence on campus.”26 Allen reflected in her memoir the internal conflict she felt, seeking validation of her decision in this racially charged case from a black college friend:
When I was in college at Western Reserve University we were seated alphabetically in classes, so I had the pleasure during the first year of sitting next to a very nice colored girl, Mary Brown, who later became a member of the Cleveland Board of Education. During the attacks made on me because of my vote in the Weaver case, Mary came to Columbus. And I explained the matter to her. I said, “Mary, if you had been in that situation in the University and working for your Home Economics degree, what would you have done when you were assigned to live under all the same conditions as Doris Weaver in the University House?” “Why, Florence,” she said, “I would have stayed right there and graduated and made it easier for some colored girl to follow me.”27
It is significant to note that as impactful as women’s advocacy can be, whether formal or informal, not all of the women profiled in this book were active in promoting causes or political agendas. For example, Kearse rarely speaks publicly outside the courtroom and did not take on leadership roles, even reportedly declining to serve as chief of the Second Circuit. But this may simply reflect a preference for how she used her time. As one reporter revealed, “Miss Kearse is a person of apparent contradictions. She loves physical activity, yet has chosen the contemplative path. Strangers are struck by her reserved demeanor, but those who know her well speak of her warmth. She is enthusiastic about her avocations and is a tournament bridge player, yet her work weeks stretch to 100 hours, leaving her little time for diversion.”28
Evening gowns bring out the Russian in her; her business clothes are neat, severe. But she goes for expensive undies of sheer, black silk. And hats! Ten a year; $3 to $10 each.… She’s a fall guy for expensive underwear, with an unsatisfied longing for sheer black silk. For ordinary wear she pays $2 or $3 for a slip, $5 or $7.50 for a girdle …29
—New York Post article on Soia Mentschikoff’s wardrobe as a lawyer practicing in New York, 1940
Recall the exuberance expressed in an early news story about Mildred Lillie’s bathing beauty figure or Carla Hills’s brunette hair and great smile. Their actual qualifications for the nation’s highest court were lost in reporting about their sex appeal. Our cultural focus on the appearance of women being considered for leadership roles detracts from their actual qualifications. And women conforming—or failing to conform—to gender stereotypes often affects perceptions of competence.
As women entered the legal profession, they faced questions surrounding how to dress and present themselves, both in and outside of the courtroom. Should women dress in such a way as to highlight their femininity and risk not being taken seriously as a lawyer, or instead should they try to conform with the male norms regarding their appearance so as to better blend in and look more like a lawyer is “supposed” to look? The shortlisted sisters adopted different strategies. For Florence Allen, and other professional women of her generation, this double bind was exceedingly rigid. Digging through Susie Sharp’s personal papers, one of us uncovered an article she clipped and pasted into her journal about Allen: “Law as a Career for Women Urged.”30 The reporter praised Allen’s judicial appointment and quoted advice offered by other male judges for female attorneys that reflected a quintessential double bind: “She must not assume the attitude of a man, either in dress or manner of speech. But she must try her cases in a manly fashion, by which I mean simply be thoroughly prepared and capable.”31 According to the reporter, Allen successfully navigated this seemingly impossible challenge: “An outstanding example is Florence Allen. Her success is a bright star before us. She has opened up avenues not only to herself, but to other women.”32 As an interesting addendum to the media discussion of Allen and her appearance, we learned that her romantic partner, Susan Rebhan, advised her to avoid looking too masculine during her campaigns for public office.
Expectations related to gender norms were something that many of the shortlisted women confronted throughout their lives. If Allen conformed, Joan Dempsey Klein rejected expectations about aspects of her appearance, casting them off as ridiculous. In one news story, Klein was interviewed about her thoughts on high heels, a fashion statement she refused to make. She exclaimed, “They’re ridiculous. I absolutely will not wear them. I think they are not only unhealthy, but it’s demeaning for a designer to suggest that women, to be stylish, should wear such a shoe.”33 Yet even when women did conform to expectations, they were sometimes criticized. One lawyer accused Carla Hills of being “arrogant,” and he went on to further remark in an apparent joke that “I also can’t stand her because she’s so neat looking all the time.”34
Allen’s influence on others regarding appearance continued long after her death. Hall reflected in her oral history interview that she was inspired by Allen’s advice about the benefits of “unconscious femininity.”35 She remembered, “When I was first trying cases I wore a black suit I had worn in New York. I wore that black suit for every argument in the court of claims until it fell apart and then I felt this is silly. I’m not a man I should wear whatever I want. First time I wore a red dress caused a sensation.”36 All of this attention to Hall’s clothing was infuriating to her, and she captured the underlying problem quite succinctly, stating, “You don’t want the judges to watch you, you want the judges to listen to your case.”37
The love of one is better than none / The love of two is plenty / The love of three, it can’t agree / You’d better not love so many.38
—A poem clipped by Susie Sharp and pasted into her journal
As the shortlisted women came of age, they were shaped by friends and intimate partners and the families they formed; these individuals played significant roles in their lives. Often, especially in the case of their lovers or husbands, the professional blurred with the personal, and it was hard to discern where one started or ended. This section explores some of these professional relationships and intimate connections.
Despite legal education’s hostility to women in the early years, several of the shortlisted women benefited from strong relationships with, or at least affirmative guidance from, the deans of these institutions. Sometimes mentorship is better described as sponsorship, where a senior attorney does more than just provide advice and takes affirmative steps to help facilitate another’s success. Mildred Lillie was encouraged to pursue a law degree at the University of California, Berkeley, by Dean Edwin Dickinson: “He apparently saw some promise in my studies.”39 She was concerned about being able to afford a legal education, but he promised her work, and she helped him with grading while she was a student. Joan Dempsey Klein, as noted in chapter 3, credited Dean L. Dale Coffman of UCLA for helping define her path. Coffman offered her admission despite the paucity of women students at that time, and the fact that, as she herself conceded, her credentials did not place her at the top of the applicant pool. Carla Hills also received advice from a law dean. She did not come from a family that included other lawyers. Instead, she set herself along the path to the profession alone. When she sought guidance from Stanford Law Dean Carl B. Spaeth, he actually dissuaded her from attending his own institution, telling her instead to attend Yale, which she ultimately did. After law school, Mildred Lillie benefited from her relationships with male lawyers in practice, including Frank Belcher, who was a lawyer active in Republican politics and aided in her campaigns.
However, sometimes, guidance, advice, and mentorship were found not in the professional but rather the personal, intimate spaces of the shortlisted women’s lives.
Many of the shortlisted women navigated romantic lives as they endeavored to secure positions of power and leadership. Most intertwined the personal and professional in their romantic relationships, finding mentors in their partners, like Mentshikoff. Some of the women led seemingly dual lives, presenting publicly in one way but living quite differently in private life, like Allen and Sharp. Others pursued more traditional marriages with men, like Ginsburg, Hills, and O’Connor. A few of the women, like Hall, Klein, and Lillie, were married earlier in their lives and then later remarried. Sotomayor, by contrast, chose not to remarry after divorce. Others, including Kagan, Kearse, Rymer, and Sharp, never married and managed to keep any significant others out of the public light.
All of the women engaged in relationships that were relatively unique, at least insofar as their deviation from the pervasive and gendered narrative of the happily-ever-after marriage of a career man and his homemaker wife. We find these glimpses fascinating as we contemplate how some of their relationships, or the lack thereof, shaped the women’s professional trajectories. Importantly, the wide-ranging differences in the women’s intimate relationships further emphasize the importance of seeking more than just token representation of women.
Professional advice was uniformly dispensed by the women’s intimate partners. Allen spent her life in two long-term, serious relationships with women, largely outside of the scrutiny of public attention, and both of her partners offered her advice behind the scenes as she navigated her judicial elections. Kennedy was married to a non-lawyer who worked in advertising. His background came in handy when she vied for judicial office and needed campaign ads. Hall was widowed during the time she was considered for the Court, and the internal White House memo evaluating her candidacy described her as the “head of household.”40 Hills had a more conventional marriage with a man whose career was high-powered just like hers, as did Hall, Ginsburg, and O’Connor, and all benefited from their partners’ understanding of their careers. Miers was romantically linked to Texas Supreme Court Chief Justice Nathan Hecht, who spoke out publicly on her behalf during her brief nomination to the Supreme Court.
Lillie’s husband was known to advise her decisions. He encouraged her to apply for a job as a municipal judge and later to put her name in for consideration with the California governor to be considered for a position on the Court of Appeals in that state. He also actively supported the decision for her to retain her last name, rather than change it to reflect her new marital status, recognizing that changing her name could be problematic when she ran for reelection.41
Mentschikoff and Llewellyn developed an intimate relationship after she was his student at Columbia. She served as his research assistant, working at a desk in his office, and their love affair developed while he was still married to another woman. The two eventually did marry, after much agony experienced by Mentschikoff; being the “other woman” was not a role she easily tolerated. Finally, she sent Llewellyn an ultimatum letter, emphasizing the consequences of failing to leave his wife. She wrote, “You are making a great mistake in not plucking for divorce. So long as I was around, it was barely a livable marriage. Now that I’m gone, it will be intolerable …”42 He soon left his wife and married Mentschikoff.
We also found connections between Mentschikoff and Sharp related to their involvement with married men. It was not until Anna Hayes began researching Sharp’s life for a biography that many of these details surfaced. At the time, Sharp’s public persona might have read similarly to that of Allen or even Kearse, about whose personal life very little is known. News accounts described Sharp as a “lifelong spinster,”43 an image she seemed to cultivate. Hayes poured through Sharp’s journals (many of which were written in shorthand and had to be translated) and painstakingly pieced together fragments of love letters that were often cut into pieces to obscure the identity of the author and nature of the relationships. Hayes described cutout letters as a sort of “lace”—love lace. One of us also spent hours combing through overwhelmingly voluminous archives of Sharp’s personal documents at the University of North Carolina, which contained what seemed to be every piece of paper she ever touched, including speeches, handwritten notes documenting the tip paid to a bellman, makeup application advice, her daily diet (with recipes!), and her exercise routine. As a result, we know that as much as she devoted her life to the practice of law and public service, Sharp poured the emotional part of herself into longstanding and complex relationships.
Sharp never married or had children, but romance nonetheless dominated her life. She was seriously involved with three different male lawyers, and these relationships sometimes overlapped. Two of Sharp’s most serious relationships took place entirely in private, as these men were both married to other women. One of her lovers, John Kesler, was a man she dated in law school with whom she had reconnected later in life, and the other was a former law professor, Millard Breckenridge. She kept lists of hotel room numbers, documenting her romantic liaisons. Sharp did contemplate marrying Kesler for a brief time and “becoming an ordinary housewife.”44 Although she chose her career over marriage, she nonetheless always longed for deep, intimate connections. Her diaries reflect a certain torment surrounding her love affairs and their lack of legitimacy, but also a resignation to the choices she had made.
In her later years, Sharp continued this pattern of engaging in secret romantic relationships. She shared a strong professional connection with a fellow (more senior) judge on the North Carolina Supreme Court, Judge William Haywood Bobbitt. Their relationship reflected significant professional camaraderie and support and took place more in the public eye than her earlier ones, though not entirely. The two maintained incredible discretion in their interaction with each other, even though he was a widow, meaning they were free to carry on as a public couple if they chose to do so. The couple never did marry, ostensibly due to the potential professional complications that might arise. Though the connection between Bobbitt and Sharp was exceptionally strong, Sharp maintained contact with her married lovers throughout her life. Given the intensity of her relationships, it is difficult to imagine how she managed to keep her romantic life private. Today, public interest in the private lives of judges can be, for some, quite intense and unrelenting.45
Florence Allen faced critique based on her lack of a husband and the accompanying suspicion that she was in committed relationships with women. Some scholars speculate that Allen’s sexual orientation was likely a factor that influenced the presidents who did not nominate her, but it was not something discussed explicitly in the public realm as it is today.46 One of Allen’s most ardent supporters, Eleanor Roosevelt, also lived a life hidden at least in part from public view; she carried on a serious, long-term, intimate relationship with journalist Lorena Hickok.47 While we uncovered no direct evidence linking Allen and Roosevelt romantically, we speculate that the women found each other to be kindred spirits, navigating public lives amidst private desires.
Some considered Allen to be asexual and disinterested in pursuing romance as she was so clearly focused on her work; this asexual dimension was often ascribed to women who did not marry and instead pursued professional paths. (Kagan, recall, was similarly described as having books as companions rather than romantic partners.) But free from assumptions regarding homosexuality that surround lesbian women today, women like Allen hid their sexuality and consequently enjoyed a certain freedom to carry on relationships with other women outside of the public eye, often without scrutiny or judgment. In contrast to Susie Sharp, whose archives were overflowing with personal items, Allen intentionally organized and edited her papers before they were donated, to ensure that only public life was reflected in them. Her memoir also does not reference her intimate relationships, making just one offhand reference to a woman with whom she lived without naming or identifying her. We relied upon the work of historians to inform the discussion of her private life here.
These are just a handful of examples from the relationships that helped support the women throughout their careers.
A career woman’s chief handicap is that she doesn’t have a wife.48
—Susie Sharp’s prepared notes for a news interview with WLOS in Asheville, N.C.
The classic double bind surrounding motherhood calls into question women’s ability to be simultaneously effective workers and mothers. The presumption is that women can excel at one but not both. Typically, women enter the workforce without one of the benefits men have long enjoyed: wives. Or, more accurately and appropriately described, without the benefit of someone to provide assistance with the personal aspects of their lives. It is as Sharp suggests, a “handicap” that women must deal with along with discrimination and other barriers as they enter the professional world.
Most male lawyers who ascend into significant leadership positions have enjoyed and at times exploited the benefits provided by their wives. The law is known to be an all-consuming profession, but any career pursuit inevitably demands long hours at inconvenient times for one’s caregiving obligations to children and family. “[H]aving a wife” in these sorts of careers “might be bloody handy,” observes one political commentator.49 As she notes, “you can therefore see why women—who are so much less likely to have a wife, and much more likely to be one—do not wind up getting to the top” positions in equal numbers as men.50 Susie Sharp felt much the same way.
Because women do not have partners performing the traditional role of a stay-at-home wife, they are forced to either forgo motherhood and homemaking roles (à la Allen, Mentschikoff, and Sharp) or to juggle not only child-rearing but often also support a spouse’s competing career (like Hills and Hall). Some of the women rejected the rigidity of a separate sphere approach adhered to by their earlier shortlisted sisters and merged work and family in their lives, but often at significant cost. Klein is a perfect example. In the early years of her career, “I was trying to do my job, raise a couple kids, schlep back and forth, resolve one marriage, and start a new one. It was kind of a tough life.”51 Despite the challenges in juggling career and family, she seemed to manage the often competing demands, recalling, “I tried to do the mom thing as best as possible. I had good housekeepers and I did the PTA thing, the Little League thing, studied with the kids at night and made sure the homework was done and that they understood how to study. I always had a family dinner, we were all together and we talked about what happened during the day and who did what and so on. We always took family vacations.”52
Hall also navigated a divorce and a subsequent remarriage. As a single mother, she left her three-year-old daughter in the care of her parents in Arizona for a year so she could live in the dorm at New York University Law School. (There were no accommodations suitable for a single mother.) She pursued her LLM in tax after a law firm partner told her specialization was the only chance of being hired. A man in her shoes would likely have had a wife to care for his child. As a single woman at the time, Hall turned to her family to provide this kind of support. Looking back on her choices, Hall, who later remarried, contemplated 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.”53 Hall outsourced many of the duties that men often expect their wives to perform. In addition to family, she had the help of a full-time nanny when her kids were young because, as she put it, she needed to know that her kids were taken care of when she was trying a case. Early on, Hall struggled financially as a single parent while she worked in government. She sewed clothes, curtains, and bedspreads because she could not afford to buy them. It is likely that a man in her position in that era would have had a wife at home to take care of such details. She explained, “It’s a financial struggle. It’s a time problem.”54 Carla Hills similarly benefited from full-time child care providers. Cornelia Kennedy, when asked about the challenges of juggling both a career and children, credited her husband for stepping in whenever she was not able to care for their son, as did Ruth Bader Ginsburg, whose husband was such a well-known family chef that the cookbook “Chef Supreme: Martin Ginsburg” was created by the spouses of the Supreme Court justices as a tribute after his death.
After the birth of her children, Sandra Day O’Connor reduced her law practice to part-time for four years, allowing her to devote time to their care as well as other civic activities. In fact, the New York Times reported that “[w]hile Judge O’Connor is most often described as a diligent, nononsense [sic] woman, always ready to move up the next notch of success, close friends say that in private she talks frankly of working hard to be both a successful public figure and a successful wife and mother.”55 Today, work-life balance like this example forms a central part of our cultural conversation, and the search for this elusive goal pervades professional lives. Over the years during which many of the women in our study were developing their professional identities, such an idea was unheard of. The approach of Hall, Hills, Ginsburg, Klein, and O’Connor reflects the more contemporary notion that women can “have it all,” and that having it all necessarily means combining and balancing traditional domestic and familial roles with that of professional ones. We are suspicious of whether this balance can be achieved. Instead, we appreciate the nuanced way that Hall describes her dual roles as mother/wife and professional; she depicts her efforts as an attempt to “manage” but not necessarily balance the various demands. We revisit this idea and propose some strategies in chapter eight.
Not all the women featured in this book had children, but even those who did not sometimes endured the burdens of being a primary caretaker. Mentschikoff “had strong feelings for New York and understandably considered New York the center of the commercial world,” but was willing to move to Chicago as a way for her to “consolidate her family and her work.”56 She “convert[ed] the third floor of the house into an apartment for her mother and father; furthermore, because the house was so spacious, she was able to house her nieces, Sandy Levendahl and Jean Mentschikoff, for many years.”57 She raised them as her own daughters. Sharp similarly provided care for members of her extended family even though she had no children of her own.
Sharp was steadfast in her opinion that women belonged either at home or at work; she did not think it was possible or desirable to balance the multiple identities of professional and homemaker. Her perspective stands in stark contrast to women like Hall, Hills, Ginsburg, Klein, and O’Connor, who juggled careers with marriage and children. When interviewed about her appointment to the North Carolina Supreme Court, Sharp commented that she would support the right female candidate for governor or president, but that in her opinion, the average woman belonged in the home. For Sharp, it was an either-or proposition regarding work and family. In prepared answers to an interview with the press in response to a question about sacrifices she may have made, she wrote, “Career has been totally possessive. I could not have had the career I have had and done justice to a husband and children.”58 She continued, “As a special judge I held court all over the state and was at home only on weekends. A man judge leaves the wife and children at home. I would not have been willing to do that.”59 Allen similarly believed that while women were certainly welcome into the professional sphere, they could not simultaneously stand in the domestic one.
Mothers are often perceived to be less competent and committed than those women without children, or they are treated as novelties with superhuman capabilities that the “average” woman cannot replicate. Remnants of this specific kind of bias and discrimination against women in the workplace persist today. It has been described as the “maternal wall,” i.e., a “bias against women not because they are women, but because they are mothers.”60 This bias extends to all women simply by virtue of having the potential to be mothers, regardless of their actual choice about the matter. Many women face career “gaps” and corresponding consequences such as lower pay and fewer promotions because they took time away for child-rearing. And as for women who do attempt to juggle a career and children, they are critiqued as sacrificing one at the expense of the other or held out as an exception that most women could never attain. A “mythical” depiction of Carla Hills appeared in the media shortly after her appointment to President Ford’s cabinet:
In the spacious living room of her boxlike 1930s house, a slim, pretty woman smiles while her 4-year-old daughter shows off objects d’art made from paper napkins and staples. Out in the yard, near the trampoline, lie a pair of crumpled children’s socks. In and around the house, in various states of motion, are three dogs, two cats (one of whom ate the gerbil), seven goldfish, three other children all under 14, a Belgian maid and a husband. The husband wonders aloud if they are going to spend another winter without curtains on the living room windows. She thinks it over, indicates that the view of the woods is charming. “No,” she adds softly, “we are not going to cover the windows.” This cozy domestic scene recently took place in the home of one of America’s newest Cabinet officials. The secretary, described by colleagues as “tough as nails,” “strong willed” and “forceful,” is 41-year-old Carla Hills. She is the fourth person to head the office of Housing and Urban Development and the third woman to sit in the Cabinet.61
The choice to become, or not become, a mother illustrates the classic no-win situation. Women today are held to higher standards of parenting than men and are often judged as “insufficiently committed, either as parents or professionals.”62 Similarly, non-mothers are critiqued or subject to similar double binds as those women who do have children, scrutinized like Kagan and Sotomayor over their single, childless status. However, the concern expressed about the paucity of mothers on the Court is self-contradictory, as the other side of the motherhood double bind presumes women are less committed to their jobs.
Juggling the demands of motherhood is a significant challenge faced by professional women, but certainly not the only one. Sometimes, competition experienced by the shortlisted sisters came from their intimate partners, many of whom had high-profile careers themselves.
Consider Soia Mentschikoff’s relationship with Karl Llewellyn. Harvard hired her as a visiting professor but refused her a tenure-track position because the school’s anti-nepotism policy prevented husbands and wives from being hired for the same department. Even so, it was well known that “[o]f the two, the Harvard faculty was most impressed with Soia.”63 Recall from part one that when the two were recruited to join the University of Chicago Law faculty by Dean Edward Levi, he found Soia’s references preferable to Karl’s.64 But it was Karl who received a tenured position. He was also paid more than his wife (though she did command a high salary compared to other women faculty across the country). Once he passed away, however, the University of Chicago finally (and rightly) promoted Mentschikoff into a tenured role. Becoming Karl’s wife, something significant to her personally, had professional consequences. Enduring this kind of professional sacrifice was, unfortunately, not something unique to Mentschikoff.
Carla Hills’s husband, Roderick Hills, also occupied a position in public service as head of the Securities and Exchange Commission. Her appointment was technically more prestigious than his, though both clearly were exceedingly talented and successful lawyers. The Washington Post noted about Hall, “She not only has held public office longer than her husband but a cabinet member always outranks the head of an agency, no matter if it is the prestigious and important SEC.”65 The article commented on the potential social awkwardness at dinner parties given the reversed gender roles evidenced by the status of wife over husband, even a husband who was also a prominent figure.
When Cynthia Holcomb Hall was considered for the U.S. Tax Court in 1972, her husband’s job as an attorney for a Los Angeles law firm created a challenge. Barbara Franklin, tasked at the time with recruiting more women to the federal judiciary, and who later took on the job of compiling extensive historical documentation of many of these women, discussed this dilemma: “What were we going to do with John Hall? Well, you know, they both wanted to come to Washington. So I think it was the first case for this. We found a job for John Hall in the administration. He became deputy assistant secretary for tax policy at treasury.”66 Franklin noted how difficult it could be to leave one’s family behind or move a family to a new location. For some women, these barriers keep them from taking leadership positions. The couple, as one of the first husband-and-wife teams to work in the executive government, helped reframe perceptions about anti-nepotism policies that historically held women back.
We still live in a society where men are supposed to age into power and women are supposed to age out of sight.67
—Sady Doyle, in a 2018 article
A classic and often unnavigable challenge faced by women who seek leadership positions involves their age: young women are seen as lacking experience, while older women are sometimes viewed as too grandmotherly. Men, by contrast, are characterized as “boy wonders” in their youth and “wise senior statesmen” as they age. Women in their middle years are often focused on child-rearing; lacking support traditionally provided to men by their wives, they are also effectively held back by familial demands. In 2012 and again in 2018, as part of the Democrats’ battle to select its Speaker of the House of Representatives, a firestorm erupted surrounding Nancy Pelosi’s pursuit of the position. Pelosi was criticized by both political parties as being too old, even though her age differs little from male politicians. Many of the leading (male) Democrats were in the same age range as Pelosi, who at the end of 2019 was seventy-eight. That same year, President Trump was seventy-three, and two of the leading contenders for the next presidential race, Joe Biden and Bernie Sanders, were respectively seventy-six and seventy-eight. This double standard is impossible to ignore: “Pelosi’s age is cast as ugly and scary and freakish in a way her male colleagues’ ages aren’t; she is defined by being an old woman, whereas they are politicians who happen to be old men.”68
Among the shortlisted women, several experienced outright denials of opportunities based on their age, for being either too young or too old. Allen, who was considered for multiple vacancies during several presidential administrations, achieved the pinnacle of success as a lawyer and jurist. But her advanced age during Truman’s presidency was used against her. Allen was in her fifties when Roosevelt considered her, but approached her mid-sixties during Truman’s presidency. One historian speculated that Allen’s age “would certainly have been raised at confirmation hearings.”69 As a contemporary reporter noted, “‘Women’ and ‘seniority’ are not supposed to occur in the same sentence. The act of building a life over time, of working one’s way up to leadership or securing a position as a respected elder, is denied to us. Age, experience, and authority are intrinsically connected for men; we’ve all grown up with images of sage, white-bearded elder statesmen.”70
Hall was also discounted for being too old—in her mid-fifties—as part of the vetting process as a potential nominee. A glowing memorandum on her candidacy in President Reagan’s papers concluded, “Indeed, it is tough to find any shortcomings in Judge Hall save that she is 56 instead of 46.…”71 In 1971, during the time Nixon was searching for a nominee for the Court, his wife spoke openly about the importance of appointing a woman. But, Mrs. Nixon lamented, “The trouble is … the best qualified women are too old.”72 Bacon, on the other hand, only 39 when considered by Nixon for the Court, was critiqued for not being old enough.73
Age was a decisive factor in Reagan’s decision-making as he combed through his shortlist for the Court. Kennedy herself suspected O’Connor’s younger age gave her an advantage for the appointment, and this intuition turned out to be true. Kennedy received official phone calls from both Attorney General William French Smith and Senator Strom Thurmond (who was on the Senate Judiciary Committee at the time), informing her that she had not been selected. During the senator’s call, he revealed that age had been a determinative factor; O’Connor was simply younger. We even found a memorandum in President Reagan’s papers where ages of potential female nominees were handwritten into the margin, with “51” written next to O’Connor and “58” written next to Kennedy.74 The author did not even bother calculating Sharp’s age, even though her name also appeared. Born twenty-three years before O’Connor, the author wrote “age” with a notation, suggesting she was disqualified for that reason. Kearse’s name appeared with “44” scratched in, apparently too young, even though Clarence Thomas was forty-three when confirmed. One commentator explains it this way: “As those women’s careers kept tracking higher (like men’s do), women increasingly began attaining their greatest power and influence just when our culture deemed they should become invisible. That visibility makes people deeply uncomfortable—and that discomfort, predictably, gets projected onto the women themselves, who are cast as monsters simply because they didn’t crumble into dust the second they turned 50.”75 Age, as colored by our cultural biases, effectively functions as a form of sexism.
The challenges and binds that confront women across professional contexts impede their ascendance into leadership positions. We include the anecdotes and stories highlighted in this chapter to expose these tensions and, hopefully, help future women live more fully unified lives judged by their qualifications, not personal attributes or choices. We return to address these challenges in chapter eight, but next we examine why women make a difference on the Supreme Court and in other professional contexts.