Hillarysworld

May 10, 2010

Kagan Shows Arc of Women's Progress

By Ruth Marcus

The first woman to be dean of Harvard Law School. The first woman to be solicitor general.

But: the fourth woman, if she is confirmed, on the Supreme Court. The third woman among the current justices.

The arc of women's progress is measured by Elena Kagan's transition from anomaly to norm, from trailblazer to just another. Well, more than just another -- a Supreme Court nominee never is -- but less of a big deal.

And no big deal is what makes Kagan's nomination such a welcome moment. There is certainly no going back to a court with a lone female justice, probably no going back to a court with only two women.

[SNIP]

The overlong era of firsts is coming, happily, to a close where women are concerned. Not completely -- there are a few hard ceilings yet to crack -- but mostly. I happened to be at a working dinner the other day at which I was the only woman, and I think the men were more uncomfortable about the gender imbalance than I was. The new abnormal is a situation where there aren't a reasonable number of women present.

Why does this matter? On an institution like the court, symbolism counts -- something, by the way, the justices ought to have paid more attention to when they closed the court's majestic front entrance. A token woman or two conveys a different message than a solid plurality, a critical mass.

As to results, I'd hope the answer is: not very much. It's too bad that, assuming Kagan is confirmed, the three women justices are apt to be part of its liberal wing. Women come in different ideological stripes.

A study of female federal appellate judges by Christina Boyd, Lee Epstein and Andrew Martin published this year in the American Journal of Political Science found no significant gender difference in an array of cases -- including, perhaps surprisingly, sexual harassment, abortion and affirmative action.

The exception came in claims of sex discrimination, in which, the authors said, "not only do males and females bring distinct approaches to these cases, but the presence of a female on a panel actually causes male judges to vote in a way they otherwise would not -- in favor of plaintiffs."

Kagan's nomination raises another, somewhat uncomfortable question: what to make of the fact that, assuming she is confirmed, two of the three women on the court will be unmarried and childless. The obvious inference is that marriage and motherhood are not particularly compatible with the relentless career path required to achieve that level of success. (Emphasis added)

Obvious, but, I think, wrong. I was prepared to draw this conclusion, until I went through the biographies of the nearly 50 women now serving on federal appeals courts. The overwhelming majority are (or, in some cases, were) married and have children. If there is a difference between male and female appeals court judges in terms of family status, it's not a glaring one. Those of us mommies who aren't Supreme Court justices are going to have to come up with a different excuse than our kids.

The only thing worse than not having women adequately represented in positions of importance is having inadequate women represented there. Selecting someone manifestly unqualified just because she is a woman is more offensive than not selecting a woman at all.

Continues @ RCP

------------------------------

Kagan is immensely qualified... but her nomination over say Diane Wood who was also a frontrunner raises the question on why more moms do not get nomination. Optics do matter.