#1699: Shortlisted | 51%

Sandra Day O’Connor became the first female Supreme Court Justice in 1981, but before that there was a long history of female candidates waiting in the wings. On this week’s 51%, we discuss the honors and limits of being shortlisted with the authors of Shortlisted: Women in the Shadows of the Supreme Court. We also take a look at President Biden’s shortlist, following his pledge to nominate the first Black woman to the Supreme Court.

Guests: Renee Knake Jefferson and Hannah Brenner Johnson, authors of Shortlisted: Women in the Shadows of the Supreme Court

51% is a national production of WAMC Northeast Public Radio. It's produced by Jesse King. Our executive producer is Dr. Alan Chartock, and our theme is "Lolita" by the Albany-based artist Girl Blue.

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You’re listening to 51%, a WAMC production dedicated to women’s issues and experiences. Thanks for joining us, I’m Jesse King. 

With Associate Justice Stephen Breyer set to retire, President Biden has said he will tap his nominee to the U.S. Supreme Court by the end of February. The Democrat has also said his pick will be the first Black woman to fill the role, more than 40 years after the nomination of Sandra Day O’Connor, the first female Supreme Court justice, in 1981. When we talk about women in the Supreme Court, we tend to start with O’Connor — but as our guests today will tell us, there’s actually a long, untold history of women being considered, but ultimately passed over, for the nation’s highest court. 

Renee Knake Jefferson and Hannah Brenner Johnson are the authors of Shortlisted: Women in the Shadows of the Supreme Court, out now on New York University Press. Jefferson is an internationally-recognized expert on professional responsibility and legal ethics, as well as a professor of law at the University of Houston, while Johnson is vice dean of academic affairs and a professor at California Western School of Law in San Diego. Both have done extensive research on gender equality in the legal profession. Their latest title, in addition to sharing the stories of the so-called “Shortlisted Sisters,” examines the challenges women and minorities face when seeking positions of power — be it in the courts, in the boardroom, or on the playing field. 

What inspired you to write this book?

Johnson: It was about the time that President Obama was faced with two vacancies on the Court. And he, as we now know, nominated two women, now Justices Sotomayor and Kagan, to the U.S. Supreme Court. And Renee and I just had the usual conversations that law professors have about those nominations. We were particularly struck, at that time, by the way the media was covering their nominations, the scrutiny that was being focused on things unrelated to their qualifications. I mean, these are two extraordinarily qualified women. You can't not be and make it to the Supreme Court. But the mainstream media was focusing on their appearance and their sexuality, on the fact that they didn't have a husband. And we were perplexed and frustrated, and frankly, offended by some of the coverage. And because we're academics, we have a lot of privilege that comes along with that role. And so we set about the business of studying the way that the media portrays nominees to the U.S. Supreme Court through a gender lens. And it was in the midst of that research study, during which we and a team of research assistants read about 4,000 articles that covered Supreme Court nominations, that we found an article that really struck our attention, and we flagged it.

It was an article written in the 1970s that appeared in the New York Times, and it talked about President Nixon was faced with a vacancy on the Supreme Court, and he had shortlisted two women, a woman named Sylvia Bacon, and then a judge in California named Mildred Lillie. Now, the article reminded us of what we were observing in 2009 in 2010, in terms of the coverage. The article noted that Judge Lillie looked great in a bathing suit, and that it was fortunate that she had no children. Now, we were stunned and shocked, of course, by that sexism in the coverage, but even more importantly, we realized we had never heard of this Judge Lillie. We didn't know that Nixon had in fact, placed two women on a shortlist for the Supreme Court in the 1970s. And so this article, and our discovery of this fact, really led us to ask the research question that informed the entire book and that is, what other women may have also been shortlisted? We think of gender in the Supreme Court around Sandra Day O'Connor. She, of course, was the first woman who was put on the court by President Reagan in the early ‘80s. But we wondered if there was another thread through this storyline, and in fact, learned that there were nine women who were shortlisted up until the point at which Sandra Day O'Connor became the first.

And so who are these nine women?

Jefferson: OK, so you gotta go back to the 1930s and start with Florence Allen. She was shortlisted by FDR. And actually, we have seen the memo in his archives from 1937. This is the year that he was considering adding more justices to the Supreme Court, because he was unhappy with the Court continuing to strike down his New Deal legislation. Ultimately, that didn't happen, and she remained on that shortlist – although he did make her the first female Federal Court of Appeals judge on the Sixth Circuit, and prior to that, she was a judge on the Ohio Supreme Court. Then LBJ was next, he shortlisted Soia Mentschikoff. She was the first female law professor at Harvard Law School and the first female professor at the University of Chicago Law School. Then you have the two women we've already talked about, or that Hannah already mentioned: Sylvia Bacon, a judge in Washington D.C., and Mildred Lillie, a judge from California, both who found themselves on Nixon's shortlist. Then President Ford shortlists his Secretary of Housing and Urban Development, Carla Hills. Well, he also considers Cornelia Kennedy, a judge on the Sixth Circuit. And then we jump over to President Reagan's shortlist, and his shortlist for the Supreme Court – of course, he campaigned on the promise to put a woman on the Court, so his shortlist included several women, including Judge Kennedy from the Sixth Circuit Court of Appeals, and Sandra Day O'Connor, of course, and Joan Dempsey Klein, who was a judge from California, and Amalya Kearse, who is the only African American female to have been shortlisted up to O'Connor. She was on the Second Circuit Court of Appeals at the time. And I think that history has particular relevance right now as we are on the cusp of having, finally, 40 years later, our first Black female Supreme Court justice. And then who did I forget Hannah? There was one more.

Johnson: Susie Sharp?

Jefferson: Oh yeah! How could I forget Susie – and Susie Sharp, who was the first female justice on the North Carolina Supreme Court, and the first female Chief Justice elected to any state Supreme Court. And I don't know how I could possibly have forgotten her, because of all the women, her archives were definitely the most fun. They were filled not just with all of her opinions and drafts and the things she did as a judge, but all kinds of juicy details from her makeup routine, and her exercise routine, recipe ideas, travel. She was a fan of the royalty, so she clipped all kinds of things that were happening with the royal family. I'm not sure how I forgot her. But those are your nine. We didn't mean for it to be enough to seat a full Supreme Court, but as it turns out, we could have had nine female justices already on the Supreme Court.

Is there anything that you think would be, I guess, different today, if any of these women had been selected?

Johnson: I mean, it's a really interesting thought experiment to contemplate Florence Allen being appointed to the court by President Hoover or FDR, and what that would have meant, not just to the opinions that came out of the Supreme Court, but also how that would have opened doors for subsequent appointments – and not just subsequent appointments on the Supreme Court, but just to positions of leadership and power generally. We know that there's a great power in seeing representations of people who would like us in those very, very powerful positions. We talk in the book about Madeleine Albright, who was asked at one point if she ever contemplated being Secretary of State. And she said, “Well, that that thought had never really crossed my mind, because I never saw somebody in that role wearing a skirt.” And for many of us, myself included, walking through the hallways of my law school, the portraits of the professors who were there for ages were all white men. I didn't see very many representations of people who looked like me. Of course, I made it into the doors of the law school, but I think that if somebody like Allen or one of the early women had been elevated to the Supreme Court, I think it would have expedited our path forward, and perhaps gotten us a bit closer to issues of equity and equality in a bit more expedient fashion.

Jefferson: And if I could just add to that: it isn't just about seeing women in these roles, but it's also just having the workplace ready for them. One of the things that we were, I guess, horrified and maybe a little amused, but mostly horrified to discover, is that some of these women in our study – in some ways couldn't be more different – but they had some common experiences. For example, when they got to courts, there were no bathrooms for them. So they had to either borrow a male colleague’s bathroom. And in fact, with Florence Allen, going to the Sixth Circuit, they had to get federal funding to have appropriate facilities for her. The women were routinely told by employers, “We'd love to hire you, but we don't have facilities for women here.” And if women had been more present on the Supreme Court earlier on, not only would we have been inspired to see ourselves in them, but frankly, the workplaces and public life would have been open to women more quickly.

I think that's a good point. It makes me think, are there areas where you still see room for improvement today?

Jefferson: I think that the analogy of the physical spaces not being appropriate or amenable to women, we can extrapolate that a little bit and think about the structure of the workplace – not just in terms of locations of bathrooms, but what a workday looks like, and where one has to do their work. And especially in COVID, everyone has been thinking about work-life balance and issues, for example, of childcare. And that was definitely another theme we saw. So some of the women in our study never had children, others did. But one theme that was common from all of them was the lack of childcare support, and very difficult decisions they had to make in their professional lives. I think that those are decisions that women grapple with still today and that fall, to be sure, on all caregivers. But because women are disproportionately more likely to be the caregivers, they're more impacted.

Johnson: Well, and that reminds me of one of the structural changes that one of the women in our study made. So Soia Mentschikoff, who Rene mentioned a few moments ago, she was one of the first female law professors in the country. She taught at Harvard. She's at the University of Chicago. She's the first permanent female dean at the University of Miami. And she was also the first female president of the AALS, the American Association of law schools, which is a national affinity organization for law professors, an organization that is still very much alive and thriving today. And when Mentschikoff was the president of AALS, she noticed that there were few female law professors who would attend the annual meeting, which was scheduled between the Christmas and the New Year holiday. And for women who were juggling life as a mother, as a spouse, as a professional, it was really difficult for them to get away to this important meeting. So she moved the date of the meeting. She made it after the holidays, which seems like a really simple thing. But in fact, once she did that, women law professors were able to attend. And perhaps it's not readily apparent to your listeners, the importance of attendance at a meeting like this: it's a place where scholars come together and share their research, it's where connections are built, it’s where relationships developed that might lead to other professional opportunities, new jobs, speaking opportunities, even awards. Renee and I ourselves were beneficiaries of Mentschikoff’s work to change that meeting date. We routinely attend this meeting – our media study that I referenced earlier, was the recipient of an award at that very conference. And so sometimes the structural changes don't require massive efforts to make them, but the impact can be quite significant.

You also talk in the book about the use of shortlists in general, and at times, the limits or even harms of shortlists. Can you tell me a little more about that?

Jefferson: Well, to be sure, in order to be selected for a position of leadership and power, whether it's the Supreme Court or, you know, another shortlist that's been in the media lately relates to head coaches for football. You got to be on the shortlist to be selected. But what we found in our own study, and I think this is a fair critique of shortlists beyond the Supreme Court, is that sometimes that very list can be used by an organization to claim that they care about diversity – because they have a diverse slate on the shortlist – but then it actually is used to perpetuate the status quo, when the individual selected is not the diverse individual. And so we push back on that in our book. We show how the use of shortlists perhaps kept women off the Supreme Court longer than it should [have]. With Nixon, like that example we told you, that's where the books origins were – we’ve listened to his Oval Office tapes. So he did put two women on his Supreme Court shortlist, but behind closed doors, he said he would never put a woman on the Supreme Court. In fact, he said he didn't even think women should be allowed to vote. But he wanted their votes. And so he used the placement of women on his shortlist to be able to go and politically say, “Yes, we at least considered you this time. And maybe your time will come.” And he was so blatant that he actually delivered a speech to a women's group after he appointed Justices Rehnquist and Powell from his shortlist – both white men, of course. And we've seen that same kind of dynamic play out. So we are mindful that you've got to be on the shortlist to be selected, but our book focuses on ways that sometimes that effort for reform can actually undermine the very objective it's meant to achieve.

So because how do we avoid that? You mentioned what's going on right now with the NFL even, is there a better way to enforce things like the Rooney Rule or is it more of a matter of changing an organization’s culture?

Johnson: Well, I think part of what we're doing, we're just we're shedding light on the shortlist, right? We are illuminating this practice and that many of the women in our study were perpetually shortlisted. "Always the bridesmaid, never the bride.” There was an old Listerine ad apparently that sort of bored that sentiment, and Sharp was shortlisted so many times that that was sort of how she referred to it, this chronic shortlisting. And I think part of how we can address it, or fix it, or keep it from happening in this negative sort of way, is to tell the story, to shed the light, to make it evident.

Jefferson: But there are also a little bit more concrete things that can be done. For example, Biden has a shortlist of all Black women, so we know that a Black woman will come off the shortlist. That is not necessarily what we recommend in the book, although of course, we appreciate the fact that Biden is finally making good on something that is long deserved. But another example that comes from the book – so I mentioned Amalya Kearse, she was the only Black female in our study that was shortlisted for the court before O'Connor. She will go on to not only appear on another shortlist of Regan – Regan had multiple vacancies, and could have given us more than one woman on the Court, but he checked that box and was ready to move on – she was later considered for the court by George H.W. Bush and also by Bill Clinton, for the very seat that Justice Breyer now holds. So it's interesting that in his retirement, [his seat] will finally go to a black woman. But to your question, how did she end up on the shortlist at all? And how did she end up on the Second Circuit Federal Court of Appeals? This is a concrete example of the kind of reform that we are interested in, and its structural reform in the decision-making process. When President Carter took office, he decided to change the way federal judges were appointed to the court. And of course, he never had a vacancy on the U.S. Supreme Court – he would have given us our first female justice, I'm sure. But he transformed the lower federal courts. He put more women on lower federal courts than all presidents before him. And the way he did it was by taking that decision process out of behind-the-scenes [factors of] who do you know, who are you friends with? And he actually created a commission through executive order. It had 16 different panels or groups across the country, and the panels were diverse in makeup: women, men, minorities. They were tasked with interviewing and vetting candidates for the federal judiciary who were also diverse women, men, and minorities. And so a structural reform like that is another example of how a shortlist can go from being sort of lip service to diversity, and actually having meaningful, real change.

Let's talk about President Biden’s shortlist then. Who are some of the women that Biden has on his shortlist, and what does this mean for the Court?

Jefferson: So I'll take the second part of that question first, and then Hannah may have some thoughts as well. I think what this means for the U.S. Supreme Court – we aren't going to see a major ideological shift, it's still going to remain sort of 6-3 with this conservative majority – but it is absolutely transformational in terms of the Court’s history and its legacy. It will increase the institutional legitimacy of the Supreme Court as it moves ever closer to reflecting the public that it serves. For the first time ever, we will have two Black justices, we will have four female justices. And to the point Hannah was making earlier, about it matters who we see holding these roles: young girls, young Black girls across the country, are going to be inspired to become lawyers, become judges, and to reach for the highest pinnacle in whatever career goal they might possibly have.

Now, as for the names that we're seeing, I could start with the most obvious, and Hannah might want to jump in with some names as well. But the one that I think everyone is speculating as most likely is Kentanji Brown Jackson, and that's because she was confirmed by this very same Senate just a year ago, for the seat she currently holds on the D.C. Circuit Court of Appeals. Prior to that, she was a federal judge and a district court [judge]. She's also served as the federal public defender. And I think this is kind of a nice piece for Breyer’s legacy: she clerked for Justice Breyer. And so he would be retiring from a seat that he would be giving to one of his former clerks, I think she's probably the most likely pick. She also received bipartisan support when she was confirmed by the Senate, so in a world where everything seems like the parties can never agree, to be able to say that, I think, also probably has her very close to the top of the list.

Johnson: Yeah, I don't disagree with Rene's analysis, and I think it's worth highlighting that today, the process is so incredibly partisan. We've talked about Amalya Kearse, who was one of the shortlisted women that we write about in the book – she was shortlisted by presidents across partisan lines. We don't see that today. It would be unthinkable, really, to think about our former president and President Biden actually nominating or shortlisting, even, some of the same women. Other judges, of course, are on the list, but I would be remiss if I didn't mention Melissa Murray, who is a law professor at NYU, and importantly, wrote the foreword to the paperback edition of Shortlisted that is coming out. So we feel really, really lucky to have her writing start the new edition of the book. But the list is long, it is filled with incredibly qualified women. It's going to be a difficult pick, for sure. It will, of course, include political calculations, as all shortlisted [candidates] and nominees have [navigated] in the past. But I guess we will know by the end of this month, is what Biden tells us.

Well, as you prepare for your paperback edition to come out, what's the biggest thing you hope readers take away from your book?

Jefferson: There's a couple things. On the one hand, the book is an untold history. So I want readers to know that the history is so much more than – I mean, not to take away from Sandra Day O'Connor being the first female justice on the Supreme Court, but the history is so much more rich, and history tells us a lot about what's happening now. It helps put into context just how long overdue the placement of a Black female justice is on the court. But the other thing I hope readers take away is that we can learn a lot from the lives of these women, that apply to everyone as they're trying to navigate their own career trajectory, their own balance of personal and public and family life, professional life. And so it's very much a book about the history of the Supreme Court that's been untold. But it's also very much a book about these women and their incredible lives. And I won't speak for Hannah on this, but I will say, learning from these women, they felt like real mentors to me, and helped me navigate my own professional pursuits. And so I hope they do the same for readers.

Renee Knake Jefferson and Hannah Brenner Johnson are the authors of Shortlisted: Women in the Shadows of the Supreme Court. You can find it now at all major booksellers. It’ll be out in paperback with a new foreword from Melissa Murray next month. For more, check out shortlistedbook.com.

As Jefferson noted, Biden’s nomination, while historic, would not tip the current conservative majority on the Supreme Court. Following a December hearing on Dobbs v. Jackson Women’s Health Organization, the Court appears poised to overturn — or at least weaken — Roe v. Wade in the coming months. That’s either a good or bad thing depending on where you stand in the debate, and states across the country are preparing accordingly.

This November, residents of Vermont will decide whether the state constitution should be changed to assure personal reproductive freedom. Proposition 5, or the “Reproductive Liberty Amendment,” was passed by the Vermont House on Tuesday, February 8, checking the last box in the amendment process before moving the issue to voters. WAMC’s Pat Bradley brings us more.

You can find Pat Bradley's story here.

You’ve been listening to 51%. 51% is a national production of WAMC Northeast Public Radio. It’s produced by me, Jesse King. Our executive producer is Dr. Alan Chartock, and our theme is “Lolita” by the Albany-based artist Girl Blue. A big thanks to Renee Knake Jefferson, Hannah Brenner Johnson, and Pat Bradley for contributing to this week’s episode. To learn more about our guests, or just the show in general, check us out at wamcpodcasts.org. You can also find us on Twitter and Instagram @51percentradio — let us know how we’re doing or if you have a story you’d like to share as well. Until next week, I’m Jesse King for 51%.