7

No Longer Zero

It’s been an amazing century for us … It was not that long ago that the only relevant statistic regarding women in the legal profession was zero percent—as in zero associates, zero equity partners, and zero judges.¹

—Sandra Day O’Connor, speech at Harvard University, 2009

That we are no longer at “zero” in the legal profession is surely something to acknowledge, but it is not entirely cause for celebration. Glass ceilings remain unshattered for many positions of power in law and elsewhere. In early 2020, zero remained the number of women who have served as chief justice of the Supreme Court or as president. Many states have never seen a female governor and most Fortune 500 companies have not witnessed a female CEO. Women keep putting cracks in the ceiling, “about 18 million” as Hillary Clinton wryly noted after her unsuccessful bid for the Democratic nomination in 2008.² Yet, even after Clinton finally snagged the presidential nomination a decade later, the ceiling remains solidly intact in many ways.

What might have happened had Hoover or Roosevelt placed Florence Allen on the Court in the 1930s? Would seeing a woman in this role have changed the minds of law firm partners who refused to hire women during the 1940s, ’50s, ’60s, and ’70s? Surely the shortlisted sisters would have had a few more legal employment options. Had Allen been appointed and then remained on the Court until 1961, the justices may have come to a different conclusion in the cases involving female issues, such as whether women should be excluded from jury service. Allen worked tirelessly to reverse this practice. But the nine men on the Court upheld the exclusion in 1961 on the grounds that “woman is still regarded as the center of home and family life.”³

O’Connor could have joined a Court made up of all women, or at least one that more accurately reflected the gender ratio of the nation. Allen retired from the Sixth Circuit before Mentschikoff made it onto the shortlist prepared by Attorney General Katzenbach for Presidents Kennedy and Johnson in 1962, and Allen passed away in 1966, so it is unlikely these women would have overlapped on the Court. But what if Mentschikoff had been confirmed and had then been joined by Sylvia Bacon and Mildred Lillie in 1971? Mentschikoff lived until 1984 and Lillie until 2002. These women jurists could have been joined by Carla Hills or Cornelia Kennedy in 1975, with Kennedy on the Court until she died in 2014. Bacon and Hills could have remained even longer. And there were plenty of opportunities to fill vacancies with other qualified women. The archives for Nixon, Ford, Carter, and Reagan contain files filled with numerous recommendations—there is no question that highly credentialed, competent women were available for the job.

Admittedly, the notion of an all-female Court, much less a majority-female Court, is merely a thought experiment at this point in time. Our objective here is to better understand the difference women make in leadership roles in any discipline or profession by speculating about how the appointment of one or more (or all!) of the shortlisted sisters might have changed the Supreme Court, its judicial opinions, the legal profession, and women’s placement in positions of leadership. Would a Court with more women have expedited the nation’s progress toward gender equality? Would a female chief justice or president already be part of our nation’s history and seem less like a novelty? Would it have affected the types of cases selected by the Court for review and the opinions the justices subsequently rendered? Might we have already attained wage and hiring equality? How might more women prominently seated on the Court improve the numbers of women in leadership broadly? This chapter examines these questions by exploring the impact female judges have had both on case outcomes and the administration of justice generally. While the focus is on the judiciary, the conclusions drawn here apply across all fields.

The Impact of Women on Case Outcomes

Had one woman served on the Court from the 1930s, or two or three or four women from the 1970s, with O’Connor as a fifth in 1981, the cases selected for review on the nation’s highest court surely would have been impacted. After all, only four justices are needed to approve a grant of certiorari to hear an appeal. Case outcomes also likely would have been impacted. As one woman wrote to President Ford in 1975 urging the appointment of a female nominee, “the male judges have consistently refused to give women equal rights under the fourteenth amendment. Thus, women have been forced to work for still another Equal Rights Amendment.”⁴ Without representation on the Court, women were left with only the legislative process, still unfinished in early 2020.

Being a woman alone does not necessarily mean that one champions women’s causes like the ERA, as we revealed in chapter six. But even though all women did not unanimously support the ERA, we believe the sound of more female voices on the Court from the 1930s going forward would have resulted in more pro-woman outcomes. For example, a plurality of male justices indicated in 1973 that sex discrimination should be treated the same way as race discrimination under the Constitution, but the specific issue was not before them at the time.⁵ When the issue finally did arise in 1976, the still all-male Court instead decided in a closely divided opinion that people who experience sex discrimination are entitled to less protection than those who experience racial discrimination.⁶ We think it is a safe bet that an all-female Court would have reached the opposite result, even if also closely divided.

Numerous studies have considered the question of whether or not women decide cases differently than men. The results are mixed, as some scholars argue for and others argue against the proposition that gender makes a difference.⁷ A rich and diverse literature explores the impact of gender on judging and questions whether women decide cases in a “different voice.”⁸ The theory of the “different voice” has been applied to Sandra Day O’Connor’s opinions, finding that her decisions reflected a feminist jurisprudence of sorts, revealing concern for individual rights in the context of a wider community and not just as autonomous, independent persons.⁹ And yet, O’Connor herself disagreed with this assessment. She eschewed notions that women judges decide cases differently because they are women. She challenged the academic theory that her opinions differed in a feminine way from that of the male justices, countering that this was just an example of “the old myths we have struggled to put behind us.”¹⁰ Even so, O’Connor’s judging inevitably was informed by her life experiences, which included, of course, being a woman. Unlike the men she joined on the Court, she was offered a secretarial position after law school, not a legal job. She understood hiring and wage disparities in a personal way. Her voting while on the Court reflected a more liberal and nuanced understanding of women’s issues than that of her male counterparts, in particular the other justices appointed by Reagan—Kennedy and Scalia.¹¹

One notable study tested the hypothesis that female judges are different than male judges by focusing on “the relationship between the gender of judges and judicial quality,” and considering “whether gender has a significant effect on judicial performance.”¹² After examining all the state high court judges from 1998 to 2000 using three measures of “judicial output”—“opinion production, outside state citations, and co-partisan disagreements”—the study failed to find meaningful evidence that gender affects the quality of judicial performance.¹³

Our focus, however, is not judicial performance—we are not surprised that women and men judges compare similarly on measures of judicial output—but on how the female experience and presence impacts deliberations, case outcomes, and other leadership decisions. Some empirical work finds a correlation between a judge’s gender and the outcome of decisions at least in certain kinds of cases; empirical findings show that women state supreme court justices are more likely to decide pro-woman on women’s issues,¹⁴ search and seizure cases,¹⁵ and death penalty and obscenity cases.¹⁶ They also are more likely than their male colleagues to vote in “support of the female litigant’s position in cases of divorce, child custody, child support, spousal maintenance, and property settlement,”¹⁷ and “somewhat more likely to incarcerate defendants and impose somewhat longer prison sentences than [male] judges.”¹⁸ Female judges are more likely than male judges to determine that a law violates gay rights.¹⁹ And even studies finding men and women judges “quite similar in their voting behavior” note “one exception: sex harassment cases.”²⁰

Not only do women sometimes reach different decisions, but their mere presence may impact the decision-making process of men sharing the bench. Studies show men vote more pro-plaintiff in anti-discrimination cases and sex discrimination cases if a woman is part of the three-judge appellate panel.²¹ However, some legal commentators are critical of studies that suggest a correlation between an increase in female judges and an increase in results that will support feminist values.²² For example, some contend that merely adding more women will not necessarily result in more judges who are “sympathetic to pro-feminist views.”²³ We agree with the observation that men can advance a feminist agenda, and that, conversely, women might compromise that same agenda.²⁴ A study conducted by political scientists reveals that one’s life experience (e.g., raising a daughter) is more likely to cultivate feminist values than one’s gender.²⁵ Other research suggests that political party affiliation is the best predictor.²⁶

One thing that empirical studies simply cannot evaluate is what happens in the closed-door deliberations among the nine justices of the Supreme Court as they debate and eventually develop a response to some of the most relevant and often controversial concerns of the day. We know that female perspectives matter (as do minority perspectives) because our female justices have spoken and written about it. For example, Lady Brenda Hale, the first female president of the Supreme Court of the United Kingdom, observed that “the incorporation of difference on the bench subtly changes and, ultimately, improves the judicial product.”²⁷ As another example, think back to our reference in part one to the case involving the strip-search of a thirteen-year-old girl accused of hiding ibuprofen to help with menstrual cramps. Justice Ginsburg observed, after her eight male colleagues indicated during oral argument they were not concerned by the search, that they themselves had never been in such a situation. Ginsburg explained in an interview with USA Today, “It’s a very sensitive age for a girl.… I didn’t think that my colleagues, some of them, quite understood.”²⁸ It is hard to refute the evidence of a female Supreme Court justice pointing out that her perspective has had an impact on the men who are also involved in deciding a case. The strip-search case was decided 8–1 in favor of the teenage girl.²⁹ But would the outcome be the same had Ginsburg not been on the Court? Would any of the male justices have offered the same kind of perspective as did Ginsburg? Regardless of one’s conservative or liberal views, women can understand the discomfort of having one’s bra and underpants searched during early puberty.

Ginsburg’s perspective has proved instrumental in many other cases, perhaps most notably in a dissent to Kennedy’s opinion upholding the federal “partial-birth” abortion ban. Kennedy wrote about his concern that women might feel guilt over the decision. Ginsburg fired back, noting his opinion was based upon “ancient notions of women’s place in the family and under the Constitution—ideas that have long since been discredited.”³⁰ As another example, while on the D.C. Court of Appeals, Ginsburg authored an opinion imposing liability on a commercial landlord after a woman had been raped in a vacant portion of his office building.³¹ The duty to exercise reasonable care to avoid a rape was triggered, according to Ginsburg, because the landlord had knowledge of prior thefts in the building and knew that the vacant areas could be accessed easily, and measures had been implemented after the rape to block access to these spaces.

In yet another example of the difference women make on the Court, but also the complexity of not always sharing the same view, consider the outcomes of three Supreme Court cases: Gebser v. Lago Vista Independent School District (1998),³² Davis v. Monroe County School Board (1999),³³ and Ledbetter v. Goodyear Tire & Rubber Company (2007).³⁴ The question presented to the Court in Gebser was whether civil rights laws prohibit the sexual harassment of a student. A teenage girl had a longstanding relationship with her teacher, and once discovered, her parents sued the school district. O’Connor authored the 5–4 decision ruling that the school district did not have liability for the teacher’s conduct unless the school had actual knowledge of the behavior and ignored it. Ginsburg dissented.

A year later in Davis, the Court faced another instance of sexual misconduct in schools. This case involved reports from a fifth-grade girl about unwanted sexual harassment and a school district accused of ignoring her repeated complaints. O’Connor authored the 5–4 decision again, this time with Ginsburg on her side, concluding that the school district did have liability.

By the time the Court heard Lilly Ledbetter’s pay discrimination case, nearly a decade after Davis, O’Connor had been recently replaced by Samuel Alito and Ginsburg was the lone woman on the Court. Lilly Ledbetter had worked her entire career at Goodyear Tire, only to learn near her retirement that she had been paid seventy-one percent of what men at her level received. She sued, and a jury awarded her back pay plus more than $3 million in punitive damages. Goodyear appealed, arguing to the Supreme Court that her complaint was time-barred because she did not file a complaint within six months of the time the discrimination occurred. The Supreme Court agreed with the company in a 5–4 decision authored by Alito. Ginsburg took the highly unusual step of reading her scathing dissent from the bench: “In our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.”³⁵ She further explained, “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; only over time is there strong cause to suspect that discrimination is at work.… An employee, like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably may be anxious to avoid making waves.”³⁶

In 2009, Congress enacted the Lilly Ledbetter Fair Pay Act, the first bill President Obama signed into law during his presidency, which effectively restarted the time for filing a complaint about discriminatory pay each time the paycheck is issued. The legislation would help women in the future, but did nothing to remedy the injustice suffered by Ledbetter. We will never know whether the outcome for Ledbetter might have been different had Harriet Miers replaced O’Connor instead of Alito or if O’Connor had held off her retirement. But we are fairly certain that it would have been.

Factoring in the intersectionality of race and other facets of identity, it becomes even more difficult to assess the impact of gender from an empirical standpoint. The first black woman to serve on a federal court was Constance Baker Motley, appointed to the United States District Court for the Southern District of New York in 1966. Dorothy Comstock Riley became the first Latina elected to a state supreme court—the Michigan Supreme Court in 1982. The first black female state supreme court justice, Juanita Kidd Stout of the Pennsylvania Supreme Court, did not take her seat until 1988. Joyce Luther Kennard was the first Asian American/Pacific Islander justice, joining the California Supreme Court in 1989. Virginia Linder of the Oregon Supreme Court was the first openly lesbian woman to sit on a state supreme court when she took office in 2007. Leah Ward Sears became the first black woman to serve as the chief justice of a state supreme court in 2005 on the Supreme Court of Georgia. The first openly LGBT female to serve in this role is Maite Oronoz Rodriguez, appointed as chief justice of the Supreme Court of Puerto Rico in 2016. A minority woman serving on any court remains a rarity, and thus it is impossible to statistically evaluate their impact.

Absent empirical evidence, however, we can look to the words of Justice Sotomayor to offer some insight into the difference a minority woman’s presence makes in the judiciary. In a 2014 case concerning Michigan’s ballot initiative on race-conscious admissions policies in higher education, Sotomayor wrote in her first oral dissent from the bench, “Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’ regardless of how many generations her family has been in the country.”³⁷ She further explained, “This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”³⁸ She also infamously declared in a 2001 speech, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”³⁹ In response to questions from Jeff Sessions during her confirmation hearing more than fifteen years later, she qualified her statement as a “rhetorical flourish that fell flat” and explained, “I don’t stand by the understanding of that statement that I will ignore other facts or other experiences because I haven’t had them. I do believe that life experiences are important to the process of judging; they help you to understand and listen, but that the law requires a result, and it will command you to the facts that are relevant to the disposition of the case.”⁴⁰ Sotomayor raised a similar concern about male justices after Obama nominated Merrick Garland instead of another woman: “A different perspective can permit you to more fully understand the arguments that are before you and help you articulate your position in a way that everyone will understand.”⁴¹

It is not just the female justices who acknowledge the impact of their personal experience on their judicial decision-making. Justice Alito noted the influence of his own background as an Italian male in response to questions about immigration during his confirmation hearing: “I can’t help but think of my own ancestors.”⁴² However, no one cited that as a basis to critique his credentials for the Supreme Court appointment. Media clung to the notion that Alito would adhere to Chief Justice John Roberts’s model of the umpire calling balls and strikes. By contrast, Justice Sotomayor was chastised by media and politicians for acknowledging that her background as a Latina would inevitably inform her perspective in judicial decision-making. President Obama was also taken to task for selecting a nominee based upon qualities that included “empathy” when he named Sotomayor.⁴³ But he was not the first president to value empathy in his Supreme Court nominee. George H. W. Bush praised Clarence Thomas, describing him as “a warm, intelligent person who has great empathy.”⁴⁴ Only female ancestry and female empathy were perceived to be problematic by commentators, the media, and politicians. Once again, qualities championed for men were liabilities for women.

The Impact of Women on the Administration of Justice

Female judges not only influence judicial decisions, but they also impact the administration of justice, that is, access to the courts and preservation of the rule of law. A court that reflects the population is an important component of institutional legitimacy. Women on the bench can impact the hiring of clerks, sexist behavior by lawyers and court employees, even the availability and location of bathrooms. Their presence has “inspired other women to aim for judicial appointments, they have raised the comfort level of women appearing in court and they have—through their extrajudicial volunteer commitments—worked to increase access to justice.”⁴⁵ Seeing women in judicial roles is a powerful symbol of what is possible for young girls as they navigate their coming of age. The symbolic effect of women on the highest court of a nation also has implications for the rule of law in that it both emblemizes and enables access to justice for women and girls from all backgrounds.⁴⁶

The United States lags behind on the international scene in placing women in judicial leadership. Some countries, including Angola, Australia, Canada, Ecuador, Rwanda, Serbia, and Slovenia have already attained gender parity, or near-parity, on their highest courts. As of late 2019, more than thirty nations have made a woman their chief or president of the highest court. Table 7.1 provides many examples of a growing list.

TABLE 7.1. Female Chief Justices or Presidents of International High Courts
1966	Ingrid Gärde Widemar, Sweden
1994	Sujata V. Manohar, India
1996	Joan Sawyer, Bahamas
	Désirée Bernard, Guyana
	Frances Johnson-Morris, Liberia
	Cecilia Sosa, Salvador Lombe P. Chibesakunda, Zambia
1997	Gloria Maya Musu-Scott, Liberia
1999	Sian Elias, New Zealand
2000	Beverley McLachlin, Canada
2001	Roseline Ukeje, Nigeria
2002	Mabel Agyemang, Gambia
2006	Ellen Gracie Northfleet, Brazil
	Dorit Beinisch, Israel
	Kaïta Kayentao Diallo, Mali
2007	Georgina Theodora Wood, Ghana
	Luisa Estella Morales, Venezuela
2008	Umu Hawa Tejan-Jalloh, Sierra Leone
2010	Marianne Lundius, Sweden
2011	Susan Denham, Ireland
	Hadiza Moussa Gros, Nigeria
	Shirani Bandaranayake, Sri Lanka
2012	Aloma Mariam Mukhtar, Nigeria
	Maria Lourdes Aranal Sereno, Philippines
2013	Zarela Villanueva Monge, Costa Rica
2014	Nthomeng Justina Majara, Lesotho
	Malgorzata Gersdorf, Poland
2015	Maria de Fátima Coronel, Cape Verde
	Miriam Naor, Israel
	Mathilda Twomey, Seychelles Isles
	Irene Mambilima, Zambia
2016	Cármen Lúcia, Brazil
	Sushila Karki, India
	Toril Marie Øie, Norway
	Julia Anna Przylebska, Poland
2017	Susan Kiefel, Australia
	Brenda Hale, United Kingdom
	Sophia Akuffo, Ghana
	Esther Hayut, Israel
	Mandisa Maya, South Africa
2018	Teresita Leonardo-De Castro, Philippines
2019	Tengku Maimun Tuan Mat, Malaysia

Women in these roles use their power to enable greater access to justice for other women. For example, Ghana’s Chief Justice Georgina Wood focused on family justice issues impacting women and children, especially domestic violence. The vice president of the Supreme Court of Argentina, Justice Elena Inés Highton de Nolasco, implemented the inaugural Domestic Violence Office of the Supreme Court. Canada’s Chief Justice Beverley McLachlin championed diversity on the bench, stating, “If we are to fully meet the challenges of judging in a diverse society, we must work toward a bench that better mirrors the people it judges.”⁴⁷ Her call led to reform in the process for the high court’s appointments, including increased transparency and other efforts to enhance accountability and diversity.⁴⁸

That so many countries placed women into top leadership on their highest courts makes the United States’s omission all the more stunning, particularly given that “[t]here is consistent agreement among scholars that diversity on the federal bench is a good thing.”⁴⁹ We do note that state courts have a better record, with many making women the chief judge or justice as listed in Table 7.2.

TABLE 7.2 Female Chief Justices of State Supreme Courts
1965	Lorna E. Lockwood (AZ)
1975	Susie M. Sharp (NC)
1977	Rose Elizabeth Bird (CA)
1979	Mary S. Coleman (MI)
1984	Ellen Ash Peters (CT)
1986	Rhoda B. Billings (NC)
1992	Rosemary Barkett (FL)
1993	Ann K. Covington (MO) Judith Kaye (NY) Margaret L. Workman (WV)
1994	Annice M. Wagner (DC)
1995	Kay McFarland (KS) Alma Wilson (OK) Barbara Durham (WA)
1996	Deborah T. Poritz (NJ) Shirley S. Abrahamson (WI)
1997	Linda Copple Trout (ID) Miriam Shearing (NV) Yvonne Kauger (OK)
1998	Mary Mullarkey (CO) Kathleen A. Blatz (MN) Lenore Prather (MS) Robin Jean Davis (WV)
1999	Margaret H. Marshall (MA) Elizabeth A. Weaver (MI) Pamela B. Mizner (NM)
2000	Dana A. Fabe (AK) Jean H. Toal (SC)
2001	Leigh Ingalls Saufley (ME) Maura Corrigan (MI) Karla M. Gray (MT) Beverly Lake (NC)
2002	Mary Ann McMorrow (IL) Christine M. Durham (UT)
2003	Deborah A. Agosti (NV) Petra Jimenez Maes (NM) Miriam Naveira Merly (PR)
2004	Betty C. Dickey (AR) Barbara J. Pariente (FL)
2005	Ruth V. McGregor (AZ) Leah Ward Sears (GA) Nancy A. Becker (NV)
2006	Marsha K. Ternus (IA) Sarah Parker (NC)
2007	Sue Bell Cobb (AL) Chase T. Rogers (CT) Laura Denvir Stith (MO)
2008	Peggy Quince (FL) Janice M. Holder (TN)
2009	Rebecca White Berch (AZ) Carol W. Hunstein (GA) Catherine D. Kimball (LA) Marilyn Kelly (MI)
2010	Tani Cantil-Sakauye (CA) Lorie Gildea (MN) Cornelia A. Clark (TN) Barbara Madsen (WA) Marylin S. Kite (WY)
2011	Linda S. Dalianis (NH) Maureen O’Connor (OH) Cynthia D. Kinser (VA)
2013	Rita B. Garman (IL) Mary Ellen Barbera (MD) Mary R. Russell (MO) Bernette J. Johnson (LA)
2014	Nancy E. Rice (CO) Loretta H. Rush (IN) Barbara J. Vigil (NM) Sharon G. Lee (TN)
2015	Patricia Breckenridge (MO) Patience D. Roggensack (WI)
2016	Lyn Stuart (AL) Janet DiFiore (NY)
2017	Mary Fairhurst (WA) Judith K. Nakamura (NM)
2018	Martha Walters (OR)
2019	Anne M. Burke (IL) Marla J. Luckert (KS) Bridget Mary McCormack (MI) Cheri Beasley (NC) Noma Gurich (OK) Elizabeth Walker (WV)
2020	Debra L. Stephens (WA)

Cases involving equal pay, education rights, reproduction, same-sex benefits, transgender rights, violence against women, women’s health, and similar issues will likely appear on the Supreme Court’s docket in the coming years. These issues directly impact women’s autonomy over their bodies, their roles as primary caretakers for children and aging parents, the persistent pay gap, and lack of opportunities for women to advance in the workplace as compared to men. Women make up the majority of the nation. Women should be the majority of decision makers on courts and in other leadership roles.

We acknowledge that not all women will necessarily share the same views on these issues. We do not believe that there is or even should be a monolithic “woman’s voice.” Nor do we assume that all female judges adjudicate from a feminist standpoint. We do not equate being a woman with being a feminist, and we make no distinction between feminist and non-feminist identities of lawyers or judges. Nevertheless, we do unequivocally believe that there should be a sufficient number of women on the Court to represent a wide array of conservative and liberal perspectives on issues involving women’s bodies and lives, as well as issues involving our national life. Men have had a range of viewpoints represented since the founding of the nation. Why not women?

Moving beyond zero and toward overall gender parity is an important goal for the Supreme Court and all institutions. But how do we get there? Direction from the first woman on the Court may prove instructive. Justice O’Connor believed “the first step in getting power is to become visible to others.”⁵⁰ What we see is what we believe we can become. It is nearly impossible to envision ourselves in a position of leadership or power if we do not see others with whom we can identify in that role. Madeleine Albright noted in more than one speech, “I never imagined that I would one day become secretary of state. It’s not that I lacked ambition. It is just that I had never seen a secretary of state in a skirt.”⁵¹ Albright’s point highlights the fact that sometimes ascending into positions of power requires a vision of the possibility.

The historical absence of women in the legal profession makes the shortlisted women’s accomplishments so very extraordinary. At the time they entered the profession, women did not yet hold the positions they would attain over the course of their careers. But each made herself visible in her own way so that others who would follow could see the opportunities as possible. Seeing Soia Mentschikoff in the halls of the University of Chicago as a law student is part of why Herma Kay Hill became a law professor and the first female dean of the University of California at Berkeley Law School.⁵² She reflected, “I never had any courses from her other than her participation in [Karl] Llewellyn’s first-year course, where she came in and gave a lecture one day. But I had a sense, from seeing her and feeling her presence in the school, that this was something that could be done.”⁵³ One of us similarly became a law professor in part because Mentschikoff’s portrait hung on the wall in the echoing, concrete halls of the University of Chicago Law School. The other of us was left uninspired by the lack of portraits of female professors adorning the walls of the University of Iowa College of Law.

Being visible is necessary, but not alone sufficient, to attain equal representation in positions of leadership and power. Some countries have experimented with gender quotas to address this reality with questionable success: “In England and Wales as well as France, quotas are restricted to political elections and are not applicable to professional elections, recruitment and career advancement.… In Germany target quotas are laid down by law. To achieve gender parity, women have to be given preference in appointments and promotions in cases of equal qualifications.… However, in practice, in the judiciary these quotas hardly ever have any bearing on actual appointment decisions.”⁵⁴ South Africa’s constitution, adopted in 1996, contains a voluntary, aspirational provision noting that the judiciary should reflect the public it serves for both race and gender, although parity has not yet been achieved. As one scholar notes:

In contrast to the assertions in the United States that judges function like baseball umpires [as claimed by Chief Justice John Roberts during his confirmation hearings], in South Africa a frequently expressed and undisputed justification for the appointment of those previously excluded by racism and sexism is precisely so that they would and should provide perspectives previously absent; that they would therefore be essential to advancing the Constitution’s promises. African, Coloured, Asian and women judges were and are expected to add value—they were and are expected to make a difference in the decisions rendered; they were and are expected to make a difference in the development of the New Democracy’s jurisprudence.⁵⁵

Mandatory quotas seem more effective for achieving equal representation of women. Kenya’s constitution, adopted in 2010, contains a mandatory quota that provides that “not more than two-thirds of members of elective or appointive bodies should be of the same gender.”⁵⁶ There were no female judges in Kenya until 1983, and the second was not appointed until 1986, followed by a third in 1993.⁵⁷ By July 2011, however, forty-four percent of High Court judges were women.⁵⁸ Similarly, Ethiopia’s first female head of its Supreme Court, Meaza Ashenafi, was sworn in November 2018, as part of the newly elected Prime Minister Abiy Ahmed’s effort to bring gender parity to government leadership roles. Half of Ahmed’s cabinet officials are women.

However successful mandatory quotas may be, they are an unlikely solution to gender disparity in the U.S., though that has not kept scholars and policy-makers from proposing them.⁵⁹ As of early 2020, however, only one state had adopted a gender quota in any professional context: in 2018, California passed a law mandating the presence of women on corporate boards.⁶⁰ While well-intentioned, the law has done little to achieve equal representation. Corporate boards are obligated only to include one woman by the end of 2019, and at least two (for five-member boards) or three (for boards of six or more members) by the end of 2021. And, as Governor Jerry Brown conceded when signing the law into effect, it likely will be struck down in the courts as unconstitutional.⁶¹ The Illinois legislature considered a similar measure in 2019 but declined to adopt it, instead passing legislation that only requires companies to report information about diversity, such as the gender and race/ethnicity of board members and demographic diversity efforts.

It is important that women are well represented in positions of power in the legal profession, regardless of their political ideology. But, given that legislative or constitutional quotas are an unlikely path to equal gender representation for the U.S., what else can be done? Chapter eight offers ideas about how to move more women from shortlisted to selected.