The Supreme Court needs more moms.

"/> Outlook: The Supreme Court needs more moms - The Washington Post The Supreme Court needs more moms.


Outlook: The Supreme Court needs more moms

May 17, 2010

Washington Post staff writer and editor Ann Gerhart took your questions about her Outlook article, The Supreme Court needs more moms.

Lots of thoughtful questions already about motherhood as a diversity category on the Supreme Court. So thank you for that, and I'll answer as many as I can.

Your article does not explain "why." Why does the Supreme Court need more moms? What is the nexus between a "good" Supreme Court justice and being a mom? You make points about tricky balancing and life outside work, etc. But we all know that. What does it have to do with the Supreme Court? The article sounds like affirmative action for moms because they are supposedly "penalized" in the workplace (when in fact they may simply have less time/attention to devote to demanding jobs than dads/non-parents).

I started my inquiry into this area by noting that the first two women on the high court were in that category we loosely refer to as  "having it all" -- albeit it not at the same time, as were the first female secretary of state, Madeleine Albright, and the first female speaker of the house, Nancy  Pelosi. I was interested in exploring the significance of that fact, if any, rather than advancing an opinion, per se.

How many of the sitting justices are dads?

All of them. David Souter was not a father; that is who Sonia Sotomayor replaced last year. I believe that Chief Justice John Roberts is the father with the youngest children. They are in elementary or middle school.

I think that putting a MOM on the Supreme Court would be a threat to the hardcore feminists whose #1 goal is to protect abortion at all costs. Could this be a true thought?

Ruth Bader Ginsburg, some would say, is a pretty hardcore feminist. She has two children. So no, I don't think a person's views or life experiences are a threat to one side or the other.

Your essay is based on some very invidious assumptions: 1. All women want children. 2. All the women who have children experience primarily joy and other positive emotions. This is not true -- many women have children because of social pressure, and experience primarily regret, grief and a number of other negative emotions. This is carrying identity politics to the point of absurdity. Instead of excellence, we need judges representing every possible identity group -- disabled, overweight, mixed-race, immigrant, evangelical, fathers, single parents, widows, the list is endless.

Thanks for this question. There are a number of ones like it. What I was suggesting is that in this quest to understand the life experiences which a justice would bring to the bench, we look to past rulings, speeches, etc. And we look to biography. Certainly, a single woman or man or a married person who is childless can and will have all the unpredictabilities of life. What I was trying to point out by saying that motherhood is a one-word verifier is that it tells you certain 'givens.' Some of those we may learn along the way about Kagan, as we did about Sotomayor  -- her interests, appetites, indulgences, worries, volunteer work, what she does to relax, whatever.

I'm all for moms' rights and recognition of the work most mothers do. But the idea that somehow the lack of mothers on the SC means much is goofy at best -- the type of mom who could make it to the SC these days is not an average mom. Yes, she'll raise kids and love them, but she won't face the same problems that an average mother will face. She won't have to deal with workplaces that actively dissuade people from taking a little time off to help a sick child, she'd likely have a lot of class privilege that allows her to do things that regular moms can't, and like you even point out in your article, she's most likely going to have a "high achieving" husband who can help out financially in ways that most normal moms' husbands (if they have them) can't. The upper-class mother that you pine for would bring little to nothing special to the Court. She'd be just the same as everyone else on the court: Ivy-educated, upper-income, earning more than 80 percent or more of the rest of the country. The kind of people who makes it to the SC these days, mother or not, woman or not, are equally disconnected from the lives of the majority of people in the United States. That's not necessarily a deal-breaker or inherently bad, but stop pretending that all forms of motherhood across class, education levels, and income level are created equal. They're not.

Certainly all mothers are not created equal. And your questions go to the point that Christopher Edley was making in a companion piece -- he argues we should stop pretending we should have a justice who can pass the "beer test" -- able to sit down and throw a few back with an ordinary American. Elites should be on the court, he is saying. We'll get the link for that.

Christopher Edley Jr.  article:  Why elites do belong on the Supreme Court

Hello, in theory, I like your thought about having more moms on the Supreme Court. But, as single woman myself, I notice how children truly distract working women. That sounds harsh but unless you have a partner (man or woman) who is willing to pick up the slack, job performance goes down. This is a job that certainly requires top-notch focused, performance. This may be a situation where you can't do it all....mother and SC justice. I'm fine with Kagan being single and childless. I feel like she'd be 100 percent committed all the time. Thanks.

Interesting point. Now, the Supreme Court has a session each year, which leaves some months off for reflection and restoration. Might not be a bad gig for a mother, I suppose. Haven't been a justice, obviously, so can't say for sure! What do the rest of you think about this commitment vs. distraction and working women at this highest of levels?

As a single, never-married professional woman of 58, now you want to sling ANOTHER barrier at my career goals because I'm not a mother? Earth to Ann: some of us would have liked to be married but never found the right guy. This is another appalling attack at single women who have to slog through life without a spouse to help us emotionally and professionally, pick us up when we're down and pay the mortgage when we're unemployed. (And pay marrieds' share of taxes -- no extra deductions for us). This is an appalling attack at a very qualified woman for the Supreme Court.

I got a lot of questions and emails along these lines, so I'm publishing this point of view. Again, I'm not slinging barriers -- the barriers already have been slung, if you will. It's harder for women to reach the tippy-top than men -- that's why there are precious few in the ranks of Fortune 500 CEOs. And, having been a single mother for a period of time, you bet it's hard to slog along without someone to pick you up when you're down.

To be blunt, while I appreciate the need to have people with diverse experiences on the Court, as a single woman lawyer (and -- for the record -- I am "childless" in the sense that I am not a biological mother but I do have a niece and godson whom I love, and I spend much time with other friends' children), I found it incredibly insulting to suggest that just because someone is childless, they cannot empathize with the concerns of parents. Many "childless" people, such as myself, care about these issues too from a broader societal perspective. (For example, I have spent time working on women's and family policy issues prior to becoming a lawyer (family economic security, daycare, pre-k schooling, etc.)) To suggest that just because someone does not have children, unlike yourself, they will not care about these issues is both wrong and incredibly self-righteous.

Of course people, including Supreme Court justices, can empathize with people like them. In fact, the research I cited in the piece indicates that women lawyers, judges and legislators overall, independent of maternal status, are more sympathetic to what we call "women's issues" than men overall. Of course there is individuation on this.

As far as I am concerned the Supreme Court, as it is made up, has NO ONE who shares my background whether they be Female, Mother, or Male. I am a white male, former Army officer, engineer in manufacturing for three decades, married for over 43 years, 3 kids, 4 grandkids, sports nut who takes care of his 91-year-old mother. No one on the Supreme Court comes close to my life experiences. They are all lawyers with very limited total life experiences. The latest two women nominated are not married and do not have children. None of the Justices have ever served in the military. None of these folks have ever run a manufacturing business. I do not believe that any of them are as close to their elderly mother as I am. I do not feel comfortable that ANY of these lawyers can do the job. We have a disgraceful system that selects our Supreme Court from a very narrow group of unqualified candidates (by their personal life experiences). I say again DISGRACEFUL! What can be done about this?

I'm not sure, but I have heard from a lot of people who feel just as you do.

How about a mom with at least two kids? We practice judicial settlement of disputes 24/7.


Okay, being a mom is a good thing but should there be more mama grizzlies on the Supreme Court ?

Wearing lace collars! I'd venture that any person, man or woman, who makes it through to the short list of Supreme Court justice has a little grizzly in 'em.

Thanks for citing the statistics regarding discrimination against mothers in the workplace. In commenting about the need for more moms on the Supreme Court, some made sarcastic observations such as that the Court needs more pet owners, thus comparing having a child to owning a pet. Wouldn't you say that the disdain for parenting that is inherent in that type of comment serves as confirmation that we do need more mothers on the Court? (I am a loving and indulgent pet owner, by the way, but would definitely never compare the two situations.)

This question, and the one about single people having to carrying a tax burden for marrieds/w/kids, gets at something else that intrigues me: the needs of society vs the needs of the individual, which is one of the biggest themes coursing through the body politic right now. Should people without kids have to pay property tax to support schools? Should people with kids get to bring them to happy hour with young hipsters? That piece ran on Sunday, too -- featuring a woman saying she thought people with children were "tyrants."

Annys Shin article:  New baby boom fosters culture clash: Parents vs. public spaces

I am not anti-feminist. I am a partnered gay man, and though I am no lawyer and lack the qualifications to be a Justice, what about the experiences of those of us who have no children, who live outside the traditional "norms" of family. I respect Justices O'Connor and Ginsburg, but they are no more or less valid or compassionate. I've known some pretty lousy parents, and some childless couples who are extremely compassionate and understanding of everyone they encounter. Why do you take such a middle-class heterosexist point of view in your approach to what shouldn't even be a question. And by the way, I'm all for more female justices on the Court. I wish there were four or five or six. And some people with nontraditional lifestyles. I'd say Justice Souter was pretty compassionate, wouldn't you?

Again,part of the problem here is that our current confirmation process requires a person to not trip up any wires on the way through the Senate. Sure, all kinds of experiences OUTSIDE work experience offer value in a broad society. The issue is: what is a way to let a nominee relate all that in a way that gives a fuller picture of the person -- and permits confirmation?

While I understand your point about diversity, I'm very uncomfortable with the idea of motherhood as a factor for two reasons. First, it wrongly drags into the public arena what is arguably the most personal decision an individual can make, which is whether to become a parent. Is it reasonable to want that part of a nominee's life to be left out of the debate? Second. It wasn't so long ago that women who didn't want children were regarded by society as strange or even mentally ill, and many people still believe that a woman isn't "complete" or "fulfilled" if she isn't a mother.

Well, that's rubbish, isn't it? People get to make their personal decisions. And my piece makes clear we don't have a lot of research on gender difference in judicial decision-making: the latest best look is at federal judges at the appellate level, and there the study found men and women show no difference except in one key area -- sex discrimination cases. So female judges affecting law, in this measurable way, at least.

In writing the article, did you have a sense of how many judges are mothers? Obviously, that impacts the candidate pool for a position as prestigious as the Supreme Court.

Good question. My colleague Ruth Marcus went through the bios of nearly 50 women serving on the federal appellate bench and found that the overwhelming majority are (or were) married with children. HOWEVER, they represent only about 20 percent of the federal bench, overall. Sooooo, it's a far smaller share of the total. Obama went outside the judiciary in picking Kagan.

Elena Kagan: From trailblazer to less of a big deal

The Court is a unit of nine people, so there are always going to be some groups without "representation." To take another widely reported example, if Kagan succeeds Stevens there will be no Protestants on the Court. So I think this is not really an issue about the Supreme Court and more an issue about the profession of the law, and about the factors that erect the "motherhood wall" you cite. I'm interested to know how the motherhood wall in law compares with the wall elsewhere -- say, college presidents or hospital chiefs-of-staff or newspaper editors-in-chief. Even within politics, we see plenty of mothers in the executive and judicial branches.

Politics: Let me run down some numbers from memory, which is, uh, pretty imperfect. US Senators -- out of 100, we have....17 women? (13 ds and 4 rs?) Governors --- out of 50, right now there are 6 who are women. Do know that I talked with a lot of female law school professors during the reporting for this piece, and they uniformly felt they had a tougher road getting there. Let me point out that the dominant type here is white men -- there is but 1 African-American in the Senate, Roland Burris from Illinois, and 1 in the governor's mansion, Deval Patrick from Massachusetts.

With only nine members, how "representative' can Supreme Court judges be of the overall population? In asking for "mom" representation, I ask you: does the one black member "represent" African-American opinion? Ma Barker was a "mom" and she would represent few mothers.

And then even with the numbers, there's this point.

Ms. Palin and Sec Clinton are both moms , but I fail to see how their common experience would result in many common beliefs. Is not the overwhelming factor in who is fit to be on the court their legal knowledge and how they are likely to apply it?

Yes, and I wasn't arguing anything else.

Yes, it was my first thought when Obama nominated Kagan "it's like Sotomayor, she gave up a family for a career!" Why can't we find more Pelosis that give us women some hope that even if we battle diapers and midnight stomach flu we can make it professionally. I know firsthand that 24 hours in a day do not allow moms to do it all. Professions do suffer from motherhood if we want to do a fairly good job being moms. I worked part-time for 10 years, even Michelle Obama and Hillary Clinton made sacrifices for some years -- both put themselves on the back burners for their husbands' careers. But did two nominees back-to-back have to be women with no family? Again from personal experience, the worst bosses for women that I can recall are women who feel cheated because they chose not to have families for their careers' sake. I definitely hope this is not the case. I am an ardent Obama supporter and glad that he has two relatively young women chosen, but just wish that one of them could relate to my sleepness nights, maternal anxieties, and how I spent years feeling that I had I foot on 1 escalator and 1 on another with both moving at different paces. Perhaps finding a mom with no potential for nannygate is another impossibility. Does it rule out all of us women who come from humble backgrounds toward ever getting one of these jobs that needs confirmation just because at some point in our lives we were so poor that we may have used helps with questionable immigration status? And of course only mommies are at greater risk of having used these services.

I am posting this because I heard this a lot -- a kind of pleading, if you will, to be heard.

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Ann Gerhart
Ann Gerhart is a Washington Post staff writer and editor.
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