May 10, 2010

I predict that it will soon and permanently become the norm for females to outnumber males on the Supreme Court.

With Elena Kagan, we will have 3 women on the Supreme Court. 3 out of 9. It will need to go all the way to 5 in order to mirror the population (which is slightly more than half women). Some people might think women are well-represented if there are only 2 or 3 and that there is no need to reach population-proportion or that Supreme Court appointments shouldn't have to do with representing various groups. But that not what my prediction is about.

I think Presidents will continue to appoint women to the Supreme Court because they will want to make a show of appointing women to high positions, but they don't particularly want to depend closely on women in their immediate sphere of action. A Supreme Court appointment is extraordinarily high-profile, but once the appointment is made, the individual is off in separate sphere, disconnected from the important work of the presidency.

Of course, a Supreme Court opinion may have a big effect on a President's power — Truman's seizure of the steel mills, Clinton's line item veto, Nixon's audiotapes, etc. etc. But that's all the more reason why a President should want to stock the Court with highly competent women who have worked relatively closely with him. Not only does he deflect attention from the way he's kept women out of his closest inner circle, he gets a Court that understands and sympathizes with presidential power.

There are also huge numbers of women going to law school these days and acquiring brilliant credentials. A President who wants to look as though he respects and values women can easily find many women to appoint to the federal courts and there will always be great candidates for elevation to the Supreme Court. I'm seeing a dynamic that will concentrate women in the judiciary. I'm not saying this is good feminism. I intend this post as feminist critique.

43 comments:

jwvansteenwyk said...

Don't worry your pretty little head about it.

Quayle said...

I predict that unless ONE of the parents stays home and really focuses on caring for the young of our species, the jackals and wolves will keep coming around to emotionally and spiritually devour them.

And emotionally and spiritually needy people are sadly (and perhaps blamelessly) often net-negative members of a civil society, and no Supreme Court, whether packed with men or women, will be able to prevent the fallout or stop the slide that will ensue.

Roger J. said...

I am unsure of what our hostess means by "good feminism." My personal assumption would be that gender is not something that should be considered as long as that criterion is applied universally. and if that is the criterion, the gender balance is immaterial--do I have that right?

Other than that quibble, I take your point--when the presidential chief of staff is a woman, we might be on to gender neutrality.

Dave said...

'I think Presidents will continue to appoint women to the Supreme Court because they will want to make a show of appointing women to high positions, but they don't particularly want to depend closely on women in their immediate sphere of action.'

Don't see the basis for this. Obama, like Bush and Clinton before him, appointed women to high profile cabinet positions. In additional, at various points, women served as White House advisors in one capacity or another for the past three presidents.

So although I can see women being considered and selected for more SCOTUS openings, I don't see evidence for your claim that Presidents don't want women in their direct working sphere.

Scott M said...

If my oldest son, an 18-year-old white male (non-handicapped and heterosexual) told me he wanted to start down a career that would end in his appointment to the SCOTUS, I'd tell him he's probably got less than an even chance.

If my youngest son, a 6-month-old white male (non-handicapped, asexual (so far)) says it when he is 18, I'll probably be telling him it will be a steep, nearly impossible uphill battle.

Snark aside, that's the problem with this. It's not supposed to be about addressing societal short-comings of the past. It supposed to be about the best-qualified person (lol, yeah, I know). Political appointments aside, there is absolutely no reason there should be any attempt whatsoever to make the SCOTUS somehow become a racial/gender mirror of society. If it happens, it should happen organically (lol, yeah...I said I know) and not by shoehorning.

Dead Julius said...

I agree with you in a way, Althouse. Obama has followed Bush, who himself followed Clinton, in being obsessively concerned with public image and the massaging of the media for the purpose of self-promotion. You could almost say that showmanship is the most important aspect of being a person with political power right now.

THE. SHOW. MUST. GO. ON.

I don't think that Obama has got it all laid out in his mind, though. He probably naturally attracts the submissive yet book smart Democrat lackies to him. The fact that few of them are women is just how it plays out.

jwvansteenwyk said...

There's no way on God's green earth Kagan would have been nominated if she were not a woman. And everyone knows it.

If we nominate a woman, let's at least make a pretense of having someone qualified.

Anyone who looks at the ban on gays in the military and is too ill-informed to figure out that it's not a 'military recruitment policy' but a law passed by Congress is not qualified for the Supreme Court.

sean said...

I think Prof. Althouse is very astute about how powerful, ambitious men feel about women. It reminds me of a piece I read about Bill Clinton when he was president which enumerated the eight people who could enter the Oval Office without an appointment. Clinton of course had appointed a female Supreme Court justice and several female cabinet secretaries, but the people who could enter the Oval Office were his wife, his secretary, and six white men in senior White House staff positions (e.g., Rahm Emanuel; I forget the others).

Note that, pace Dave, the resident does not "depend closely" on Cabinet secretaries. You need only recall the Clinton/Reno or Reagan/Pierce relationships.

bagoh20 said...

A vagina is a powerful thing. They should be regulated more.

HDHouse said...

Yes of course. At this rate perhaps by 2080 or so.

Will we males then long for the day of minority rule?

Daniel said...

I intend this post as feminist critique.

Let's be clear though -- feminist critique of liberals. Since after all, neither George W. Bush nor George HW Bush appointed a woman to the Supreme Court, which makes them feminist paragons who are comfortable with women. We have to go back to Reagan for a Republican who appointed a women, and he actually campaigned on it, which I'm sure in some fashion meant he was comfortable with women, and did not, as Scott M says, mean that he was interested in "shoehorning" a woman in.

Dave said...

Cabinet members may not work in the Oval Office, but Presidents depend on them in many ways, so they are in no way disconnected from the important work of the presidency.

But cabinet level appointments aside, both Bush and now Obama had several women in high profile advisory roles working within the White House. For Bush there was Harriet Miers, Condi Rice, & Karen Hughes; Obama has Valerie Jarrett, Christina Romer, Nancy-Anne Deparle & Mona Sutphen.

Quayle said...

Clinton of course had appointed a female Supreme Court justice and several female cabinet secretaries, but the people who could enter the Oval Office were his wife...

Speaking of powerful women, where in the heck is Hillary Clinton lately?

Did she die?

Expat(ish) said...

There are also huge numbers of women going to law school these days and acquiring brilliant credentials

Well, please choose one or the other. I've met exactly three law school graduates who I've thought "brilliant." And only one of them has ever tried a case that seemed to me to be significant. One other has had one major journal pub - and he's a prof at a big school out west.

As I recall, most law articles in top journals are still written by men. But that 'knowledge' is 4+ years old, so it may have changed.

Also, as lawyers made most of the legislative messes we have now, please excuse me if I'm reluctant to view with excitement having *more* of them. Anywhere.

-XC

VW = "troll" - seriously.

Palladian said...

"There's no way on God's green earth Kagan would have been nominated if she were not a woman. And everyone knows it."

Obama saw in her a kindred spirit.

Skyler said...

I expect that the next president in 2012 will feel a need to appoint conservative women to counter the impression that all women of note are liberal.

roesch-voltaire said...

I guess there is no way to satisfy your feminist critique if I understand it: appointing women to high positions is just for show, unless they are involved in the important work-- say like Secretary of State? Oh wait that doesn't count either. My problem with this critique is the coinage of "just for show" feeds into the male perception that none of the women appointments are as qualified as a man. One only has to compare Elizabeth Warren to Larry Summers to see the truth of that.

edutcher said...

Certainly in terms of law school demographics, you are correct, but I also believe the Demos - and more than a few leftish Republicans - like the idea of creating 'minority seats', reserved only for those of the same demographic of the person they replace.

Roger J. said...

I am unsure of what our hostess means by "good feminism."

I think she's saying based on merit, rather than plumbing.

danielle said...

i doubt it. 'making a show' of appointing women will be seen as just that by many, a show, and so Presidents will stop -- and it will be with a wink and a nod to their male buddies, and it will get them macho points...

Ann Althouse said...

Good feminism means the version of feminism that is considered by the person using the term to be the kind of feminism that is good and that we should want to support.

You might think good feminism is treating women as equal to men in every way. We could have a debate about what good feminism is. We could disagree. I think we all are probably feminists, if the term is properly understood. The debate is over the version of feminism we support, and I'm using "good feminism" to identify the real question.

Irene said...

In Wisconsin, we have an elected judiciary. Of the seven members of the Wisconsin Supreme Court, a majority are women, and all were elected to their positions. None are on the bench because of a mid-term gubernatorial appointment. Two lean left, and two lean right.

Bruce Hayden said...

I frankly don't see evening up the sexual balance on the Supreme Court in the near future. Maybe one more, but I doubt that. Likely the next to leave will be our ACLU feminist Justice, and she maybe replaced by a woman. But more than that?

The problem, as I see it, is partly what Larry Sumners was beat up for - that men tend to excel at the top. There are several reasons for that, one being a higher standard deviation on IQs, and another being that men still tend to spend much more time and effort on their careers. Or, at least the most successful ones.

Look at what the President had to do here. He picked someone with relatively light academic credentials, no judicial experience, and some appellate experience (and most recently, of the most strenuous and trying type as SG). In short, with significantly lower qualifications than either of the two males who just preceded her (and in particular, in comparison with CJ Roberts).

The left does have a number of highly credentialed and qualified people who could have been nominated. They were just (straight) men.

My prediction - next Justice after this should be Asian. John Yoo? There is now a Black, a Hispanic, a lot of Catholics and Jews, soon to be three women. That means Asian.

But in the future, my prediction is that the male/female ratio will somewhat stabilize at about the 2/1 ratio that we are likely to see soon, once we get beyond all the identity politics.

craig said...

Eventually there will be a majority of women on the Court because women are predisposed to favor a stronger government (and therefore a more powerful executive branch). Since most presidents' own interests also lie in strengthening executive power, it's bound to happen.

c3 said...

There is something odd and vaguely disturbing about this post.

Maybe I need a shot of oxytocin.

MadisonMan said...

I think eventually it'll be like female astronauts. At first Sally Ride was a novelty. Now, no one bats an eye when a women goes into orbit. It isn't even news.

I don't think the transition in Justices will be so quick. To begin with, Justices operate in a political arena, and some addlepated yahoo trying to score points with his or her constituents is always going to say something remarkably backwards. But eventually it'll happen.

daveh said...

I think that here in NYC judging -- both state and federal -- has essentially become a "mommy track" job. It is very rare for a male breadwinner to be appointed to the bench here. Maybe the prestige is enough to attract a few to the Second Circuit, but the others do not.

The question is that when the work gets defined as "women's work" will it retain the prestige -- my guess is probably not. One need only think of the Secretary of State and the Attorney General. These positions used to be held by people who actually wielded the authority or were members of the President's inner circle -- Kissinger, James Baker, Bobby Kennedy or Ed Meese, As I believe Althouse has pointed out more than once, no one cares what Hillary Clinton is doing as Secretary of State -- she's been relegated to fill "First Lady"-like responsibilities. Just as it was well known that Webster Hubbell, not Janet Reno, ran the Justice Department.

This is not to say that appointing women will necessarily lead to downgrades, but that the President ought to appoint his actual confidants to high position, and refrain from tokenism.

Brian said...

There could be 9 women on the Supreme Court, 99% of college graduates are women, and a women President, and there will still be women's centers on campus and women's groups screaming about discrimination.

Dust Bunny Queen said...

A vagina is a powerful thing. They should be regulated more.

Kegel.

But that wasn't what you meant...was it?

Bill Harshaw said...

Assuming you're right now, will your logic still hold when the Presidents are women--that is, the closest co-workers are also women, so she will appoint men to the Court and Cabinet?

holdfast said...

I disagree - Republicans presidents will still appoint men, because they want to appoint someone who will not drift left during 30 years doing the same job, and Republican women tend to be on the moderate/squishy side of the party.

That said, Ann Coulter was originally a lawyer wasn't she? Of course, unlike Kagan, Coulter's views are a matter of a rather voluminous public record.

Hombre said...

In any event, Obama will not appoint any heterosexual, white, Anglo-Saxon, Protestant males to the Supreme Court during his tenure, period.

Lo siento mucho, mis amigos.

Interesting that with this appointment what is arguably the most populous worldview in the US, Protestant Christianity, is excluded form the Court. You know, the worldview Obama professes to share.

Hombre said...

correction: excluded "from"

dbp said...

If television is any guide, the Supreme Court will not just be all women eventually--but also all African American women.

EDH said...

Antonin & Clarence sing:

Surf City, here we come!

Two girls for every boy

I bought a blue pill and we call it a woody
(Surf City, here we come)
You know it's not very cherry, it's an oldie but a goody
(Surf City, here we come)
Well, it ain't got a back seat or a rear window
But it still gets me where I wanna go

And we're goin' to Surf City, 'cause it's two to one
You know we're goin' to Surf City, gonna have some fun
Ya, we're goin' to Surf City, 'cause it's two to one
You know we're goin' to Surf City, gonna have some fun, now
Two girls for every boy...

And if my woody breaks down on me somewhere on the surf route
(Surf City, here we come)
I'll strap my board to my back and hitch a ride in my wetsuit
(Surf City, here we come)
And when I get to Surf City I'll be shootin' the curl
And checkin' out the parties for a surfer girl

Two girls for every boy

ricpic said...

...once we get beyond all the identity politics.

The communist assault on individualism was absolutely brilliant. Once judging on individual merit is overthrown the floodgates are open and they're open forever. Balkanization commences and grows ever more tortuous, ever more divisive. Our American experiment was wonderful. Terrible to be present at the end.

rhhardin said...

Focus the supreme court on caring and the men will leave.

Greg said...

Perhaps soon a majority of Supreme Court members will be graduates of the Princeton department of history, are from New York City, are unmarried and childless females, have an Ivy League law degree, and have taught at an Ivy League law school.

More than 1/5 of the court will soon have exactly that background ...

Greg said...

I predict it will soon became the norm for graduates of the Princeton department of history who are unmarried childless females to outnumber married males with children on the Supreme Court ...

Greg said...

I predict it will soon become the norm for males on the Supreme Court to be outnumbered by unmarried childless females from New York City who are graduates of the Princeton department of history and an Ivy League law school ...

Mimi Black said...

daveh very astute: "The question is that when the work gets defined as "women's work" will it retain the prestige -- my guess is probably not. One need only think of the Secretary of State and the Attorney General..." Until humans are mature enough to accept that they are creatures of prejudice, no matter how vehemently they deny it, the insanely boring cycles will repeat themselves until the species finally expires. The most dangerous ones are the drones who believe themselves to be above it. I happen to be a carpenter, among other things, but one of my favorite examples I've heard recently is a woman who was denied transferring to the bakery section at the deli where she works because "Baking Is Men's Work". I s#&t you not.

avwh said...

What a diverse group of women these 3 are (assuming Kagan is confirmed): one originally from Brooklyn, one originally from Manhattan, and one originally from the Bronx.

Nels said...

Women also live longer than men.

Greg said...

"Diversity" has meant three left wing Ivy League law school grads all hailing from one city -- and two of them hailing from the same Princeton University history department program.

It's a big country -- some very narrow elite needs to rule it. It might as well be left wing Ivy League law students from New York City and the Princeton history department ...