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The Honolulu Advertiser
Posted on: Tuesday, May 11, 2010

Female nominee a big deal no more


By Ruth Marcus

Hawaii news photo - The Honolulu Advertiser

Supreme Court nominee Elena Kagan would be the fourth woman named to the top U.S. court.

SUSAN WALSH | Associated Press

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The first woman to be dean of Harvard Law School. The first woman to be solicitor general.

But: the fourth woman, if she is confirmed, on the Supreme Court. The third woman among the current justices.

The arc of women's progress is measured by Elena Kagan's transition from anomaly to norm, from trailblazer to "just another." Well, more than just another a Supreme Court nominee never is but less of a big deal.

And no big deal is what makes Kagan's nomination such a welcome moment. There is certainly no going back to a court with a lone female justice, probably no going back to a court with only two women.

It represents, as Justice Ruth Bader Ginsburg said the day of her own nomination, "the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers."

For 12 long years, until Ginsburg joined the court, Sandra Day O'Connor was its one-at-a-time performer. Then for three years, after O'Connor's retirement and before Sonia Sotomayor's selection, Ginsburg was the soloist.

The overlong era of firsts is coming, happily, to a close where women are concerned. Not completely there are a few hard ceilings yet to crack but mostly. I happened to be at a working dinner the other day at which I was the only woman, and I think the men were more uncomfortable about the gender imbalance than I was. The new abnormal is a situation where there aren't a reasonable number of women present.

Why does this matter? On an institution like the Supreme Court, symbolism counts something, by the way, the justices ought to have paid more attention to when they closed the court's majestic front entrance. A token woman or two conveys a different message than does a solid plurality, a critical mass.

As to results, I'd hope the answer is: not very much. It's too bad that, assuming Kagan is confirmed, the three female justices are apt to be part of its liberal wing. Women come in different ideological stripes.

A study of female federal appellate judges by Christina Boyd, Lee Epstein and Andrew Martin published this year in the American Journal of Political Science found no significant gender difference in an array of cases including, perhaps surprisingly, sexual harassment, abortion and affirmative action.

The exception came in claims of sex discrimination, in which, the authors said, "not only do males and females bring distinct approaches to these cases, but the presence of a female on a panel actually causes male judges to vote in a way they otherwise would not in favor of plaintiffs."

Kagan's nomination raises another, somewhat uncomfortable question: what to make of the fact that, assuming she is confirmed, two of the three women on the court will be unmarried and childless. The obvious inference is that marriage and motherhood are not particularly compatible with the relentless career path required to achieve that level of success.

Obvious, but incorrect, I think. I was prepared to draw this conclusion, until I went through the biographies of the nearly 50 women now serving on federal appeals courts. The overwhelming majority are (or, in some cases, were) married and have children. If there is a difference between male and female appeals court judges in terms of family status, it's not a glaring one.

The only thing worse than not having women adequately represented in positions of importance is having inadequate women represented there. Selecting someone manifestly unqualified just because she is a woman is more offensive than not selecting a woman at all. Sarah Palin as a vice presidential nominee and, more to the point, Harriet Miers as a Supreme Court nominee, come to mind.

I know Kagan and consider her a friend, but the notion that she is President Obama's Miers is ludicrous. She clerked on the federal appeals court and the Supreme Court. She has taught law, worked in the White House counsel's office and been solicitor general.

To those who complain about the paucity of her publicly stated views on legal issues: blame Republicans. If they had confirmed Kagan when she was nominated to the federal appeals court by President Clinton, they'd have a juicier paper trail to pick apart today.