BOOKS
Women and the Supreme Court
By John G. Browning
Cover image courtesy of NYU Press
U.S. Supreme Court Justice Ruth Bader Ginsburg once famously responded
to the question of when there would be enough women sitting on our
nation’s highest court by saying, “When there are nine.” Yet, even with
three female justices currently serving, neither historians nor the
public itself seem to have paid much attention to women considered for
the Supreme Court before the historic nomination of Justice Sandra Day
O’Connor by President Ronald Reagan in 1981. But as the fascinating and
painstakingly researched book Shortlisted: Women in the Shadows of
the Supreme Court (NYU Press, 2020) points out, at least nine women
were considered for the Supreme Court by presidents going as far back as
Franklin Delano Roosevelt. Authors Renee Knake Jefferson, a law
professor at the University of Houston Law Center, and Hannah Brenner
Johnson, a vice dean and law professor at California Western School of
Law, bring a sadly overlooked chapter in our legal history to life while
simultaneously giving us a new definition of what it means to be
“shortlisted”— i.e., “qualified for a position but not selected from a
list that creates the appearance of diversity but preserves the status
quo.”
By poring over obscure documents in presidential archives, museums and
historical society collections, and the personal papers of several of
these trailblazing women, Jefferson and Johnson bring them to life,
beginning with Florence Allen, the first woman to sit on a state court
of last resort and the first to be appointed to an Article III federal
appellate court (the U.S. Court of Appeals for the 6th Circuit) in 1934,
who was initially mentioned as a potential Supreme Court appointee under
the Hoover administration. However, during FDR’s lengthy tenure, Allen
was officially shortlisted with support from numerous women’s groups and
Eleanor Roosevelt herself. Yet even as he reshaped the court by filling
an unprecedented eight vacancies during his time in office, Roosevelt
passed on every opportunity to appoint Allen, as did his successor Harry
S. Truman.
In the ensuing decades and numerous Supreme Court vacancies that
elapsed between Allen’s shortlisting and O’Connor’s 1981 nomination,
eight more women would be officially considered for the court. Soia
Mentschikoff, a distinguished legal scholar who taught at Harvard and
the University of Chicago, made the shortlists of both John F. Kennedy
and Lyndon Johnson. California appellate judge Mildred Lillie made
Richard Nixon’s shortlist but was passed over due to an unfavorable
rating by an all-male American Bar Association committee and Chief
Justice Warren Burger’s threat to resign if a woman were appointed to
the court. Sylvia Bacon was appointed by Nixon to the Superior Court of
the District of Columbia in 1970, and she was formally considered for
the D.C. Circuit, the U.S. Court of Appeals for the 8th Circuit, and the
Supreme Court as well. Bacon also appeared on a list of Supreme Court
candidates prepared for Gerald Ford. Carla Hills, who served as
Department of Housing and Urban Development secretary under Ford, also
made his shortlist to replace Justice William O. Douglas. Cornelia
Kennedy, the first woman to serve as chief judge of a U.S. district
court, was named to the 6th Circuit by Jimmy Carter in 1979 and made the
shortlists of both Presidents Ford and Reagan.
While Shortlisted goes into admirable detail about the personal
and professional lives of all of its subjects and also provides
insightful analysis of Justice O’Connor’s journey from nomination to
confirmation and service, as well as of those women nominated after
O’Connor, the book transcends mere historical chronicle. In an age in
which women attend law school in numbers more than men yet are
underrepresented in the profession’s highest ranks, Shortlisted
is a wake-up call about the persistence of gender inequality. Part of
the problem, the authors posit, rests with the gendered media coverage
of female nominees; from the earliest contenders to even recent justices
like Elena Kagan and Sonia Sotomayor, female nominees have been
subjected to media scrutiny of their appearance, marital status,
motherhood, and sexuality. This book represents an important step beyond
shortlisting and tokenism toward true selection.TBJ
JOHN G. BROWNING
is a partner
in Spencer Fane in Plano, where he handles commercial litigation,
employment, health care, and personal injury defense matters in state
and federal courts. He is an award-winning legal journalist for his
syndicated column, “Legally Speaking,” and is the author of the
Social Media and Litigation Practice Guide and a forthcoming
casebook on social media and the law. He is an adjunct professor
at SMU Dedman School of Law.
