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One is Not Enough

Below the Belt: A Column by NOW President Kim Gandy

May 7, 2009

Watch, sadly, as the women disappear: Women currently earn 48.5 percent of all the law degrees in the U.S. Women make up 32 percent of American attorneys. Women comprise 27 percent of federal circuit court of appeals judges and 25 percent of federal district court judges. Women are 11 percent of the U.S. Supreme Court. No woman has ever served as Chief Justice of the United States.

What happened, you ask? Well, that's a column for another day -- a story of dealing with gender stereotypes, dismissiveness, sexual harassment, outright discrimination, and the general inflexibility of a profession designed for men. I started practicing law over 30 years ago, and the stories would curl your toes.

But the challenge before us today is...what are we going to do about that paltry 11 percent?

Last week, news broke that Justice David Souter will retire from the Supreme Court at the end of this session. For the past 19 years, Souter has voted with the "liberal wing" of the court on many social justice issues, including upholding Roe v. Wade. With Souter's departure we will lose a reliable vote for equality, but we also have something to gain. An open seat provides our new president with the opportunity to begin correcting a great imbalance on the high court.

One is not enough, even when it is the estimable Ruth Bader Ginsburg.

Ginsburg makes her case . . . and ours.

Since the retirement of Sandra Day O'Connor in 2006, Justice Ruth Bader Ginsburg has served as the lone woman among the Supremes. Over the past several years, Ginsburg has been quite frank about her thoughts and feelings on the matter.

At an Ohio State University symposium for law students, Ginsburg had this to say: "There I am all alone, and it doesn't look right" when members of the public visit the court. She noted that four out of Canada's nine Supreme Court justices are women, including the chief justice. But this isn't a simple issue of ratios. As Ginsburg noted, women bring a life experience to the bench that men can't.

"The word I would use to describe my position on the bench is lonely," she told USA Today about O'Connor's absence. "I didn't realize how much I would miss her until she was gone." O'Connor herself has expressed what a huge difference it made to have another woman on the court. Really, just ask any woman who was the lone woman on a board of directors, or the only woman on a legislative committee -- ask her what a difference it made to have even one additional woman join the body. Just ask. This isn't to say that we want a second woman justice just to "keep Ruth company." We want two women (and three and four and five) because together they can make a real impact on women's lives.

Ginsburg has indicated that she wants to continue serving on the Supreme Court for years to come, well into her 90s hopefully. NOW urges President Obama to nominate a woman to join her. A woman of color would go even further toward broadening the court's narrow makeup. Obama has the ability to make history yet again, and I am confident that it won't be that hard to do with a number of highly qualified women ready to serve.

Understanding the daily lives of women and girls.

In a statement he delivered personally to the White House press corps, President Obama gave us an idea of how he will select his first nominee to the Supreme Court: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

He talked about the rule of law, constitutional traditions and the judicial process, but Obama had already hit the nail on the head. The Supreme Court might seem like a lofty body with little relevance to everyday people's lives, but it's not. These nine justices make decisions that play a critical role in upholding our fundamental civil rights and civil liberties. And we need at least some of these judges to understand the daily lives of women and girls.

The court's 2007 joint decision in Gonzales v. Carhart and Gonzales v. Planned Parenthood was the first to ban an abortion procedure without ANY exception to allow its use if the woman's health is in serious danger. Ginsburg not only voted against the ban, she authored an insightful dissent, which said, in part:

[T]he Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women's place in the family and under the Constitution -- ideas that have long since been discredited. . . . In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- with increasing comprehension of its centrality to women's lives.

In the 2007 equal pay case of Ledbetter v. Goodyear Tire & Rubber Co., Ginsburg again took on the majority, schooling them in the "realities of the workplace" and the "realities of wage discrimination" in her dissent. And during the recent oral arguments in a case involving the strip search of a 13-year-old female student, The Washington Post reported that "Ginsburg seemed at times on the edge of exasperation with her all-male colleagues."

These are just a few examples from one woman justice, but what about the bigger picture?

Research confirms the differing perspectives of women judges as compared to their male counterparts. A summary of studies published in the Annual Review of Law and Social Science revealed that "women lawyers and judges ... more firmly rejected traditional stereotypical descriptions of women, traditional prescriptive norms for women's behavior, and legal presumptions favoring men in cases of domestic violence and the allocation of property in divorce proceedings." And regarding Ginsburg's reference to women's "life experiences," the studies found that "women judges were more likely than their male counterparts to have experienced sex discrimination and conflict between their work and family roles" and that "women reported observing both gender disparagement and sexual harassment more frequently than did men."

On a similar point, Dahlia Lithwick observed in Newsweek: "History shows that you can be the most empathetic and open-minded jurist in the world and still be a dolt about gender. It's why the liberal lion, Justice William Brennan, could write so expansively about equality and justice while still refusing to hire female law clerks. It's why Ginsburg was denied a clerkship with the legendary judge Learned Hand. (He refused to hire her because he liked to use salty language.)"

"But I just want the most qualified person for the Court ... "

Funny, when it comes to white men, no one ever says "but isn't there a more qualified woman than these guys?" Yet when a woman's name is floated, there is an immediate reaction of "well, we really want the most qualified person" with its implicit suggestion that maybe she isn't.

Indeed, we often hear calls around this time for the president to pick the "best" candidate for the job -- as if figuring out who would be the "best" justice is a simple matter of crunching some numbers and ... voila, magically appears the name of some white guy who just happens to share the president's party and philosophy.

For those who say (whether they actually believe it, or simply think it's what they ought to say) that they don't want a particular gender or race, but only want the "best" judge or the "most qualified" person, I propose this thought: Unless you believe in the superiority of one race or gender, then you must agree that, over time, appointments of judges based on pure merit would result in some rough approximation of the population (at least the population of lawyers) in terms of both gender and race. Yet women are half the population, 25 percent of federal judges, and only 11 percent of the Court. Hispanics are 15 percent of the population, seven percent of federal judges, and none of the Court. White men are less than 40 percent of the population, but make up nearly 80 percent of the Court.

So, unless you really believe that white men as a group are twice as qualified as the rest of the population to make decisions about our lives, then there is an imbalance that is not based on merit or qualifications. And that needs to be rectified. Let's urge the president to appoint one of the many (and I mean many) women who are every bit as "qualified" as John Roberts or Samuel Alito, and far better situated to render fair and impartial judgment.

Sign our Petition to President Obama NOW!

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