Elena Kagan and Critical Mass

Should Obama be selecting Supreme Court justices based on gender?  Absolutely.

The gender composition of our current Supreme Court is a shameful reflection of the failure of our society to take gender equity seriously, so President Barack Obama’s nomination of Elena Kagan to replace Justice Stevens is a victory for women. But let’s not celebrate too soon:  Three women justices on our nation’s highest court would be a major improvement over the status quo, but it is still a far cry from adequate. If Kagan is confirmed, the Court will still reflect the disproportionate power that men continue to hold at the highest levels in American society.

Until 1981, all U.S. Supreme Court justices had been men. Only 29 percent of active judges currently sitting on the thirteen federal courts of appeal are female. Only 28 percent of active U.S. District Court judges are women.

Currently, with two women on the Supreme Court, the U.S. lags far behind some of the world’s other leading democracies in terms of gender equity on high courts. For example, the nine-member Supreme Court of Canada has four women justices (including the chief), and three of the seven justices on the High Court of Australia are women.

No candidate for the Supreme Court is perfect, and Elena Kagan is certainly no exception. For example, she has taken what many environmentalists view as a very troubling position on genetically engineered foods. She will undoubtedly have to answer to the left on this issue and others, as she should, but rather than delving into the substance of her legal philosophy and positions, the right wing is already hurling the same, tired “inexperienced” argument against her. That’s a term that, in the context of Supreme Court nominations, is often used by the right as a synonym for female.

Kagan certainly has the experience necessary to serve as a Supreme Court Justice–far more significant experience than, say, Clarence Thomas.  She was the dean of Harvard Law School.  Inexperienced?  Seriously? If the right wants to talk about experience, let’s talk about what Kagan brings to the Court in terms of life experience. In an unequal society, where women still earn 78 cents on the dollar (and that’s a generous figure) and are fighting tooth and nail to maintain their reproductive rights, Kagan brings a perspective grossly unrepresented on the Court: the profound experience of being female in our unequal social, economic and political climate. Her experience as a woman, which she will share with only two other Justices, is critical to the Court’s ability to respond to and protect the rights of more than 50 percent of the population. As Carolina Gonzalez wrote in Ms. after the nomination of Sonia Sotomayor, a judge’s life experience can be crucial in their decision-making:

Not surprisingly, according to several studies and to law scholars, racial and gender identity matters most in racial and gender discrimination cases. Women and African American judges rule in favor of discrimination plaintiffs significantly more often than white men. For example, a study drawing on 20 years’ worth of cases concluded that drawing an African American judge in cases involving workplace racial harassment makes it more likely that the plaintiff will win. Curiously, the effect of having women judges rule on gender-discrimination cases is greater when they serve on panels of three judges than when they rule alone from the bench. It seems that just the presence of a woman on a small panel of judges influences the others’ opinions.

As Obama and subsequent presidents continue to make selections for the Supreme Court and the rest of the federal judiciary, we can only hope that they will do so with a conscious focus on gender equality on the bench.  If they do, then a critical mass of women will eventually develop, and women will take their rightful place as equal partners with men on the highest court in the nation.

ABOVE: “Contemplation of Justice” statue on the Supreme Court Plaza. Photo from http://www.flickr.com/photos/bootbearwdc/ / CC BY 2.0


  1. Kagan will have to answer to the left? The left can make some noise, but has no clout. Obama has been trying to distance himself from the left in virtually every way imaginable, with the possible exception of trying to sound like an antiwar candidate, which he most certainly was not. This nomination is just another example of Obama telling the left, and the environmental movement, and those concerned about excessive executive power, to stuff it, while he attempts to appease feminists freshly burned by his enshrinement of the Hyde Amendment.

  2. Obama has been trying to distance himself from the left in virtually every way imaginable

    Unfortunately, in a vain attempt to achieve (overrated) “bipartisanship,” all Obama has done is alienate his supporters while trying to get support from those who oppose him (and who never actually end up supporting him).

    If he’s really going to appease the right, he should at least be honest about it. If he’s going to make some real change as he promised he would, he should just do it unapologetically, because the Republicans will try to block him no matter what he does.

  3. Disgruntled says:

    I am glad the author recognizes that Elena Kagan’s judicial philosophy should be examined closely. I am, however, somewhat perturbed as a male attorney about two things.

    First, I doubt that a male judge would be any less likely to protect a woman’s right to choose than a male judge. Roe v. Wade was decided in 1973 in a 7-2 opinion and not a single one of the justices was a woman.

    Second, using the rationale that because female and black judges should be appointed because they rule in favor of plaintiffs more often would not necessarily result in a just outcome (using the term “just” narrowly to describe the outcome of a case). The vast majority of workplace discrimination cases tend to be weak in terms of merit. Every year, hundreds of thousands of cases are brought to the attention of the EEOC, yet only something like 2% ever result in EEOC lawsuits against employers. This, of course doesn’t prevent plaintiffs from suing themselves, but the vast majority of these cases are meritless.

    If discrimination did occur and there was clear and convincing evidence, then a case should certainly be taken to court, but I would certainly not want judges out there treating meritless claims favorably because of their race or gender.

  4. Disgruntled says:

    Correction on my last post: I meant preponderance of the evidence

  5. Indeed, the time has come for the sight of gender equality on the court.
    One can trace the ignition of the feminist art movement to the NY Times’
    magazine photograph of the all-male group of artists in the Pace Gallery.
    As a Jewish feminist artist, I have created an installation of an imaginary
    female court of law,known as a Beit Din. Heretofore, women have been forbidden
    to be judges on a Beit Din. This court piece,called, “All Rise” is now at
    the Contemporary Jewish Museum of San Francisco until October third, 2010.
    On September 12, UC professor Judith Butler and Berkeley writer, Ayelet Waldman
    will join me on a panel to discuss the urgency of women judges on the religious court
    particularly with the aim of the Religious Right to legislate “Kosher Bussing”
    where women sit in the back of the busses in Jerusalem.

  6. Tom Vitale says:

    I support President Obama wholeheartedly, 200%. Even if I disagree with him about something, I support him. And I am greateful he chose Elena Kagan. Go to C-SPANorg and look up the questionaire (pdf) she had to fill out about her background: she is phenomenal.
    I agree with thhis article. The right wing are so outageously sexist because they are fundamentalist: rigid, closed minds and hearts; open only to their own kind. And women do not qualify for the “club” or “clique” for if they did, if women were fully free to determine their own lives, the right wing would fall apart. Or become even more fascist.

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