Women on the Bench

A reminder: Representation is not a panacea.

That being said, I was reminded last night that Sandra Day O’Connor was elevated to the Supreme Court from a state intermediate court. This got me thinking about the implication that the federal pipeline was relatively devoid of women that Reagan could place on the court. After all, even by then, most Justices were typically appointed from the federal courts of appeals or from high-level federal executive branch positions.

Carter has gotten quite a bit of credit for making a point of nominating women to the federal bench, but it made sense that Reagan would want to stay away from Carter appointees to please his base. Anybody appointed by Eisenhower would likely be too old. So that leaves Nixon and Ford appointees. Nixon nominated 235 Article III judges, and Ford appointed 64.

Each of them nominated a single woman to the federal judiciary.

Nixon appointed Cornelia Groefsema Kennedy to the Eastern District of Michigan in 1970, and Ford appointed Mary Anne Richey to the District of Arizona in 1976. (Groefsema Kennedy, as it turns out, was the other finalist considered before Reagan picked O’Connor.)

This is a combined rate of under 1%, of course (2/299). And of course, law schools had not yet started graduating women in large numbers. (Women made up 40% of law school enrollees for the first time in 1985, and 10% of law school enrollees for the first time in 1970.) But even still, that number is absurdly low. Even as far back as 1947, the first year for which the ABA reports gender breakdown, women still made up 3.5% of entering students, a number that remained relatively constant until the 1960s (and presumably was similarly constant in the relevant graduation years for judicial nominees in the 1970s).

But just how bad was this number in context?

It turns out that the context is equally bad. Lyndon Johnson, along with JFK, did better, but just barely. The two appointed a total of four women out of 310 appointees, including one circuit court appointee (Shirley Hufstedler, who Jimmy Carter ironically removed from the bench to appoint her as the first U.S. Secretary of Education) and the first woman of color to serve as an Article III judge (Constance Baker Motley). Before them, only two women were appointed to Article III positions, one by Truman and one by FDR.

And Carter’s celebrated push to appoint women led to a grand total of 40 female federal judges, out of 262 total Article III appointees. Although Carter had to dig his heels in to get to 40, that number is still barely 15% of all judges confirmed during his term.

As you would expect, as more women became lawyers, the numbers improved. But they still lag behind what most might expect. (Numbers from Reagan onward were not as exhaustively checked and may be off by one or so.)

Roosevelt: 1/193 (0.5%)
Truman: 1/133 (0.8%)
Eisenhower: 0/182 (0.0%)
Kennedy: 1/126 (0.8%)
Johnson: 3/184 (1.6%)
Nixon: 1/235 (0.4%)
Ford: 1/64 (1.6%)
Carter: 40/262 (15.3%)
Reagan: 23/383 (6.0%)
Bush 41: 32/193 (16.6%)
Clinton: 108/378 (28.6%)
Bush 43: 64/327 (19.6%)
Obama: 135/329 (41.0%)
Trump: 9/43 confirmed, 32/134 nominated (20.9% or 23.9%)

Some thoughts:

Note that this double-counts judges who were appointed to one court and then elevated to another court (for example, Judge Kennedy was elevated by Carter to the Sixth Circuit, and she counts as one of Carter’s 11 female circuit court appointments). As a result, Justice Sotomayor, who went SDNY to the Second Circuit to SCOTUS, is counted three times in these numbers. These numbers, if you can believe, are actually worse than they look.

As perhaps a point of comparison for the presidents from the last 40 years, I referenced the law school gender numbers from 20 years before the end of each president’s term to determine whether they were overrepresenting or underrepresenting women relative to the cohort of lawyers that was generally available. A positive number indicates overrepresentation of women, and a negative number indicates underrepresentation:

Carter: 3.8% (+11.5%)
Reagan: 7.2% (-1.2%)
Bush 41: 20.2% (-3.6%)
Clinton: 37.2% (-9.6%)
Bush 43: 42.7% (-23.1%)
Obama: 46.0% (-5.0%)
Trump: 49.4% (-28.5% or -25.5%)

While the Democrats clearly did better than their Republican counterparts as a general matter, nobody other than Carter actually outperformed the demographics of law students from the relevant time period. In fact, Reagan and Bush 41 actually came closer than Clinton and Obama did, although this is partially a matter of using absolute numbers. But perhaps the remainder might be attributable to the effect that Carter had on the process by making an effort to appoint women to these positions. (Keep in mind that Reagan made appointing a woman to the Supreme Court a central platform plank of his 1980 campaign.)

Now there are several reasons for this, including the sexism ingrained in hiring and promotion for jobs that would lead to judgeships, but perhaps part of what we are seeing is also the demographic disconnect between top law schools and law schools as a whole.

Indeed, during my time in law school, the vaunted Top 14 schools were consistently slanted toward men, even as law schools as a whole approached 50-50 in gender representation. (There are several potential causes of this disconnect, including risk aversion that causes women to take scholarships at lower-ranked schools, family-related considerations that tie women to local law schools, etc.) Thirteen of the fourteen schools in this group had zero entering classes in the classes of 2013 to 2016 that were majority-female, with the only exception being UC-Berkeley, which has a reputation for “public interest work” and West Coast progressivism. (The numbers have continued to improve, with all schools in the T14 now above 40%, but Berkeley is still the only school with more than 53.4% women as of 2018.)

Perhaps not coincidentally, Berkeley took a tumble in the rankings during this time, although it has since recovered. Also perhaps not coincidentally, Berkeley is the only top-15 school (the top 14 plus Texas, which has cracked the top tier in recent years) that does not have a single JD graduate who is a law school dean, even though there are several much smaller law schools in the top 14.

Can this be fixed just by searching out and accounting for biases in hiring and promotion? There’s some indication that that would make things substantially better, if not quite equitable. But how do you do that when some of the most helpful early-career gold stars, such as clerkships, have their hiring controlled primarily by unaccountable judges who hold all the hiring power? Even the ones who care about representation tend to have substantial blind spots, such as Justice Ginsburg’s failure to hire Black clerks.

We can wait for those folks to age out of the process, but the ones most likely to replace them are going to be those who have benefited from this slanted process already.

More must be done.

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