Ask the authors: The long and winding road from shortlisted to selected for female Supreme Court nominees

The following is a series of questions posed by Ronald Collins to Renee Knake Jefferson and Hannah Brenner Johnson in connection with their new book, “Shortlisted: Women in the Shadows of the Supreme Court” (New York University Press, 2020), which tells the untold stories of women that presidents considered as justices for the Supreme Court in the decades before Sandra Day O’Connor’s confirmation.

Renee Knake Jefferson is a professor of law and the Joanne and Larry Doherty Chair in Legal Ethics and Director of Law Center Outcomes and Assessments at the University of Houston Law Center. She is an author of two casebooks: “Professional Responsibility: A Contemporary Approach” (2020) and “Legal Ethics for the Real World: Building Skills Through Case Study” (2018).

Hannah Brenner Johnson is Vice Dean for Academic and Student Affairs and an associate professor of law at California Western School of Law. Her research interests include gender-based violence and gender inequality in the legal profession.

Johnson and Jefferson are also the authors of “Gender, Power, Law & Leadership” (2019).

Welcome, Renee and Hannah, and thank you both for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book.

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Question: Yours is a collaborative effort. Tell us about that and how the two of you work.

Jefferson & Johnson: We have a longstanding friendship and collaborative working relationship that extends over the course of the last decade to the time when we both taught at Michigan State University College of Law. Our first research project grew out of personal hallway conversations and emails that we exchanged in the year between Justice Sonia Sotomayor’s nomination and confirmation to the Supreme Court in August of 2009 and Justice Elena Kagan’s nomination and confirmation in 2010.

We were both shocked by some of the media coverage of these two incredibly qualified women as they were being vetted for a position on the nation’s highest court (things like commentary on their sexuality, appearance and marital status). These conversations led us to create an empirical research project and, in its wake, solidified our relationship as both co-authors and friends. It also provided opportunity for our children to develop their own friendships as we spent time writing together and traveling to present our scholarship at conferences, often with the kids in tow.

In those early years we also co-directed the Frank J. Kelley Institute of Ethics at Michigan State and planned a number of conferences, including a symposium that addressed gender inequality in the legal profession. And of course we began working on the shortlisted project. We’ve stayed committed to this work, and our collaboration has continued even after moving across the country to join the faculties at different law schools. Our writing process may be different from how others engage in collaborations; we have long enjoyed sharing drafts of our work and editing each other’s words early on in the process. This was intimidating the very first time we started writing together, as the sharing of preliminary unedited drafts requires a certain vulnerability; but we learned that we could trust each other.

We believe this practice leads to a more uniform voice for all of our work. Often, when we look back at our work, it is impossible for either of us to remember who wrote what. True to our practice, we took the same approach in answering the questions for this Q&A!

 

Question: Your book takes a close look at the stories of women who were considered – but not selected – for a seat on the U.S. Supreme Court. In the last chapter you offer eight strategies “for counteracting the biases and prejudices that endure” against professional women in largely male-dominated fields. Is that your target audience?

Jefferson & Johnson: Our target audience is fairly broad but yes, it definitely includes women who are navigating their professional paths. We are also trying to reach those who occupy positions of power and have the ability to help move women from shortlisted to selected. It is important to note that while some of the strategies we identify may be useful on an individual basis, we are perhaps even more interested in encouraging more systemic or structural change. Much of the book, though, will appeal to anyone interested in the history of this country or the Supreme Court selection process.

We also wrote the book with our children in mind as the audience, though when we started our youngest couldn’t even read yet! But we knew our daughters and sons would grow up in a world in which gender inequality endures. We wanted them to be inspired by the histories of these trailblazing women and to equip them with strategies for the work that remains. So, needless to say, our target audience is quite broad. And it’s been a particular joy to see our now-teenaged children reading the book.

 

Question: This book has its empirical roots in a study the two of you conducted about gendered portrayals of Supreme Court nominees. Tell us about that.

Jefferson & Johnson: As we mentioned, our first interaction with each other involved our shared outrage surrounding the media’s sexist coverage of Supreme Court nominees. We channeled this energy into a research study that explored how the media portrayed nominees to the Supreme Court as far back as President Richard Nixon’s efforts to fill the vacancies that ultimately went to William Rehnquist and Lewis Powell.

This project involved the systematic evaluation of over 4,000 newspaper articles published in the New York Times and Washington Post. We read and coded every single article for a series of variables that ranged from the sex of the reporter to whether the article mentioned the nominee’s appearance, sexuality, parental status and more. We surmised that the way Supreme Court nominees were being discussed in mainstream media would reveal the experience of women leaders generally and provide insight into the barriers and obstacles that impede their advancement into positions of leadership and power.

The study exposed a pattern of gendered portrayals of the female nominees. It also uncovered long-forgotten presidential shortlists, one of which included two women a decade before O’Connor became the first woman to join the Supreme Court. We immediately wondered, were other women considered? Who was the first president to include a woman on his shortlist? This book shares what we discovered as we searched for answers.

 

Question: On October 14, 1971, there was an unsigned piece in the New York Times on potential Supreme Court nominees Nixon was then considering. Share with us how that fits into your experience in writing “Shortlisted.”

Jefferson & Johnson: It was in the midst of our Supreme Court media study that we stumbled upon that article. We were shocked to learn that Nixon had shortlisted Sylvia Bacon, a judge from Washington, D.C., and Mildred Lillie, a judge from California, as he was faced with two vacancies on the court. We had never heard of these women and were unaware that any women had been considered for the court before O’Connor. We were shocked at the way Lillie was described by the author as having “maintained a bathing beauty figure.” It was absurd that an individual considered as a nominee for the nation’s highest court would be critiqued based on her appearance in a swimsuit. We also were struck by the author’s reference to her childless status.

Although we understood that this commentary was consistent with the pervasive sexism of that era (and the findings of our media study), we were more curious about the notion that other women had been shortlisted before O’Connor. And so began our journey through presidential papers, news accounts and private archives. We learned that indeed, nine women had been shortlisted but never selected for the Supreme Court, dating back as far as the 1930s.

 

Question: You acknowledge your indebtedness to Professor Christine Nemacheck. What was her work and how did it influence yours?

Jefferson & Johnson: Unlike for other positions in government, there is no unified system of selecting—or shortlisting—individuals to serve on the Supreme Court. In fact, the Supreme Court judicial selection process is well known by scholars to be one of the most difficult to study. Presidents have not kept uniform records of whom they considered for the court. President Donald Trump was the first to make public his shortlist, which was prominent in his campaign and officially posted on the White House website after his election.

Nemacheck is a political scientist who has researched Supreme Court nominees and, as a starting place, we relied on her excellent book, “Strategic Selection: Presidential Nomination of Supreme Court Justices From Herbert Hoover Through George W. Bush,” to discern who, exactly, may have appeared on presidential shortlists. However, we departed from Nemacheck’s method in two places. We identified Florence Ellinwood Allen, and not Soia Mentschikoff, as the first woman to be shortlisted, and added Sylvia Bacon to the list. Through this project we developed a profound appreciation for historians and scholars like Nemacheck, as it can be incredibly challenging to piece together accurate reflections of the past. We discovered competing accounts of history and tried to point these out to our readers.

We included a note about this process in the book’s appendix, and call for other scholars to continue this effort to better account for untold and/or long-forgotten aspects of our history, especially women’s history.

 

Question: A number of women are profiled in your book. How do these women fit into what you refer to as “collective storying telling”? Tell us more about what you mean by that and your call for systemic change.

Jefferson & Johnson: In addition to the nine shortlisted before O’Connor, we also include three women who appeared on President Ronald Reagan’s subsequent shortlists and the five women who went on to be nominated. Each of the women profiled in our book could be the subject of an entire research study. They are all incredibly gifted, accomplished, complex women who have blazed uncharted paths into positions of leadership and power. Some have previously been studied, though only two of the women shortlisted before O’Connor have been the subject of books. We believe that one of the most powerful aspects of this project is the collective story that we tell about this cohort of women who were qualified to serve on the Supreme Court, but never selected.

We have written about common themes that unite them, but in many respects they could not be more different from one another. They represent, collectively, the importance of diverse representation on the Supreme Court and beyond. In telling their stories in this way, we uncovered a phenomenon we did not set out to find—what we define as a nominee who is “qualified for a position but not selected from a list that creates the appearance of diversity but preserves the status quo.”

This concept of being “shortlisted” helps explain why it took so long for a woman to make it onto the court, and we think that it also helps explain why women are not reflected in numbers equal to men in all positions of leadership and power. It’s not the only explanation, but it is one structural source of continued inequality. If one only looks at an individual woman’s story, it’s hard to see this phenomenon. But looking at their stories together? It is impossible to ignore it.

 

Question: There are some notable female appellate judges who were never formally shortlisted but were informally considered and whose names circulated in the press. Can you tell us a little bit about those women and their fates?

Jefferson & Johnson: Our list of shortlisted women in the book includes only the women for whom we could find actual documentation of being formally considered by a president. But, absolutely, as you suggest, there were a number of other exceptionally qualified women whose names were circulated in the media and also sent to presidents for consideration, including Chief Judge Alice Batchelder of the U.S. Court of Appeals for the 6th Circuit, Priscilla Owen of the U.S. Court of Appeals for the 5th Circuit, Shirley Hufstedler of the U.S. Court of Appeals for the 9th Circuit and Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit, just to name a few. President Jimmy Carter was widely known to have considered Hufstedler as his first choice for the court, but of course he never had a vacancy to fill.

 

Question: Share with us how your example of Carter, who never nominated anyone to the Supreme Court, and Judge Amalya Kearse, who was never nominated to that court, illustrates one of the strategies for change recommended in your book’s last chapter.

Jefferson & Johnson: One of our overarching recommendations in this book is to encourage systemic transformation, not just change at the individual level. Carter exemplified this approach when he issued an executive order that established judicial nominating commissions for the federal circuit courts in 1977. Thirteen panels were created representing regions across the country, with a specific mandate that each include men, women and minorities. The panels were directed to nominate candidates who had actively championed diversity. Thus, the panels asked:

• “How have you worked to further civil rights, women’s rights, or the rights of other disadvantaged groups on a national, state or local level?”
• “How many women attorneys and minority attorneys does your office or law firm include?”
• “How many women partners?”
• “Minority partners?”
• “What do you think the most crucial legal problems of women and minorities will be over the next few years?”
• “How should these problems be remedied?”

Panel members included Kearse, who at the time was still practicing law at Hughes, Hubbard & Reed in New York. She would later go on to be selected by one of those commissions, and she was confirmed to the U.S. Court of Appeals for the 2nd Circuit on June 25, 1979.

Carter understood that one of the most powerful roles of a president is the appointment of judges, who last long beyond the president’s term. By the end of his presidency, Carter had appointed and the Senate had confirmed 41 women, more than all presidents before him combined.

 

Question: You write of the “potential harms of being shortlisted.” As you see it, is it better or worse to be shortlisted, and why?

Jefferson & Johnson: Well, it’s best to be both shortlisted and selected. Our concern is that a shortlist can manipulate the public into believing that its creator has placed no gender or race barriers to a coveted position even though the ultimate aim was always to preserve the status quo. Of course, one needs to be on the shortlist to be selected. It is a necessary and important first step toward being chosen. It is an honor. But, when the shortlisting of women and minorities is a hollow gesture, it demeans not only the individual, but society’s belief that merit should override gendered and racial prejudices.

The message that is sent by systemic shortlisting may deter others from putting themselves forward. The dearth of women and minorities on the Supreme Court and in other positions of leadership and power signals that these opportunities are just not available and not worth enduring the often grueling scrutiny that comes from being on the shortlist.

 

Question: Before the 2016 election, then-candidate Trump publicly announced his shortlist of possible candidates for the Supreme Court.

On the one hand, you seem skeptical of this: Such lists, you write, lend “the auspices of diversity and equality to the nomination process but ultimately preserv[e] the status quo.” On the other hand, you argue that “[s]unlight is needed on the shortlists … [and we] need accurate data and transparency about who is shortlisted, not just for the Supreme Court, but across professions and in all positions of leadership and power.”

Can you say a bit more about your thinking on this matter?

Jefferson & Johnson: We think that these sentiments are both true. We absolutely need transparency surrounding who makes it onto the shortlist, as this practice is revelatory and may in fact encourage those who are doing the selecting to be more inclusive. Such transparency allows us to better understand what is actually happening and whether shortlisted women and minorities are mere window dressing or actual legitimate candidates. It also allows us to examine who ascends. We also acknowledge that even transparency only goes so far.

It is worth noting that the current president’s shortlists have thus far resulted in the appointment of more men, and fewer minorities, to the federal bench than his recent predecessors from both parties. By contrast, presumptive Democratic presidential nominee, Joe Biden, has committed to select both his vice president and a Supreme Court justice, should he have the opportunity to fill a vacancy, from all-female shortlists.

 

Question: Although duly appreciative of the achievements of the four “waves of feminism,” you nonetheless take exception to “a common omission in each wave of women’s rights since [its] early gathering [in Seneca Falls]”: the consideration of minority women. Would you elaborate?

Jefferson & Johnson: The voices of women of color have frequently been left out of the feminist movement. Most of the grievances expressed by the women at Seneca Falls were focused on white middle class women. Many of the activists in the suffrage movement were willing to exclude their black sisters out of concern that race would impede their ability to gain the right to vote. “Women” has not been synonymous with the experience of all women, and too often feminism has failed to acknowledge the many layers of our intersectional identities.

 

Question: The late Judge Cornelia Kennedy was nominated to a federal district court in 1970 by Nixon, and later elevated in 1979 by Carter to serve on the 6th Circuit. Presidents Gerald Ford and Reagan both considered her for the Supreme Court. Yet nothing ever came of it. Why?

Please also tell our readers how Kennedy changed one of the Supreme Court’s long-standing traditions.

Jefferson & Johnson: It’s hard to know exactly why Kennedy was never selected. She seems to have come closer than anyone else in our study. When Reagan was deciding between Kennedy and O’Connor, longevity on the court was likely a factor: Kennedy was six years older than O’Connor. This was Kennedy’s partial explanation. But we also suspect that politics and lobbying behind the scenes impacted Reagan’s decision.

Our nation’s history has many examples of physical structures mirroring social policy. “Colored” and “whites-only” train depots; men-only clubs; the forced relocation of Japanese American citizens during World War II. Similarly, many physical structures in place when shortlisted women were considered assumed that men were singularly qualified to occupy positions of leadership. For example, there was no private bathroom for O’Connor when she joined the Supreme Court. But that was not the only structural impediment that needed attention.

Historically, Supreme Court justices were referred to as “Mr. Justice” both on the bench and on the nameplates on their office doors. Kennedy found herself participating in a law school moot court competition with Justice John Paul Stevens. The student participants repeatedly referred to Kennedy as “Madam Justice.” Kennedy became irritated with this reference and questioned the need for the gendered honorific rather than simply the word “Justice.” This interlude sparked something in Stevens, who took the message back to Washington and, long story short, convinced the justices that it was time to remove the honorific “Mr.” from their chamber doors as well as from their references to each other.

 

Question: As you note in chapter three, Chief Justice Warren Burger played a role in helping to get O’Connor on the court. Among other things, while O’Connor was still a state appellate judge, Burger placed her on several national and international judicial panels in order to give her greater national visibility. Plus, it helped that on the eve of her nomination she published an article in the William and Mary Law Review on the relationship between federal and state courts. All of this points to a circuitous route to securing a seat on the court. How does that figure into your strategic calculus for someone hoping to secure a nomination to the Supreme Court?

Jefferson & Johnson: In addition to qualifications, connections matter both in the creation of a shortlist and in elevation from it. Some routes are direct; some are circuitous; but none should bar selection based on an immutable characteristic like gender. Thus, we admire Mentschikoff’s professional and personal relationship with Karl Llewellyn, who undoubtedly opened doors. But without her commanding intellect and her principal role as reporter to the American Law Institute on its Uniform Commercial Code publication, she would never have been considered for a position on the Supreme Court.

To be sure, securing a seat on the Supreme Court requires certain credentials, along with a bit of luck and the right timing. We don’t mean to suggest in any way that the strategies of the women profiled in our book or the recommendations we make in the final chapter offer a sure-fire path to the bench. But there are lessons to be learned for securing leadership roles, not only on the court but also well beyond it.

 

Question: In addition to the aspirational side of your book, I sense that there may be a kind of realist mindset at work. For example, you counsel that women “[c]hoose personal partners – whether in friendship or in romance – who value one’s professional life and allow for the possibility of non-traditional relationships.”

Are you saying that the personal is political?

Jefferson & Johnson: We gleaned a lot from our exploration of the personal lives of the shortlisted women and how their personal lives affected their successful professional trajectories. Relationships matter in the attainment of positions of leadership and power. All of the women on our shortlist relied on their academic, family, personal and/or public ties to achieve success. This was also true of the more than 100 men who preceded O’Connor. The difference is that the men’s attributes, combined with their personal and political relationships, secured seats on the highest court in the land.

Our message is that women, like their male counterparts, should not shy away from nurturing relationships that advance their ascension to pinnacles of power. Our personal, intimate lives can have a direct bearing on what we do professionally. And, whether we like it or not, politics often plays a role in what we can do at home and at work.

 

Question: Now that “Shortlisted” is out, what are your plans? For example, have you given any thought to doing a study (see here also) of female lawyers who have argued before the Supreme Court?

Jefferson & Johnson: Right now we are reveling in the birth of this book, although many of our plans are casualties of the coronavirus. We had several book talks scheduled that have been postponed or transitioned to Zoom sessions. But yes, we are intrigued by the examples of women arguing before the Supreme Court, by the dozens of women who have led their state courts as chief justice and by the continuing suppression of minority women in these roles. And our readers, like you, have given us much food for thought. Stay tuned!

 

Question: You close your book with this: “When President Obama greeted Justice Ginsburg at Justice Kagan’s swearing in, he asked, ‘Are you happy that I brought you two women?’ She replied, ‘Yes, but I’ll be happier when you bring me five more.’”

Why stop at eight?

Jefferson & Johnson: Great question! A court that reflects the diversity of our profession and the people it serves is an important goal. We should also work hard to resist the concept of a monolithic “woman’s voice.” Looking at the court’s rich history, we don’t attach one viewpoint or singular identity to the male justices or to the two African American justices who have served.

We would absolutely like to see an increasingly diverse court filled with women and minority justices whose perspectives on the law are informed by differences in geography, education, race, gender, ethnicity, life experience and more.

We wish Presidents Herbert Hoover or Franklin Roosevelt had been bold enough to nominate Florence Allen in the 1930s. Imagine how a decision like that would have changed the course of her story, and of history.