The recent confirmation battle over President Trump’s nomination of Amy Coney Barrett to fill the seat on the U.S. Supreme Court previously held by Ruth Bader Ginsburg makes Shortlisted: Women in the Shadows of the Supreme Court, by professors Renee Knake Jefferson and Hannah Brenner, particularly timely. While the women who have been nominated to seats on the Supreme Court are well known, Shortlisted explores the lives of the nine women who made the “shortlist” from the 1930s through the nomination of Sandra Day O’Connor, the first woman to serve on the high court, but who were not nominated. In the process, the authors offer cogent observations about diversity and inclusion in the law and in society, the dangers of tokenism, and the politics of the nomination and confirmation process.
In the preface, Jefferson and Brenner explain that they were moved to write the book during the confirmation hearings for Elena Kagan and Sonia Sotomayor. Press coverage was replete with references to their shared childless status, appearance, weight, and clothing choices. The authors found no such references in the press coverage of the nominations of John Roberts and Samuel Alito to the Court just five years earlier. This got the authors thinking about how and why women are treated differently, how the Supreme Court’s jurisprudence might be different if more women served on it, and the nomination process itself.
The nine “shortlisted” women are fascinating, and each deserves a biography of her own. Florence Allen was shortlisted by Presidents Herbert Hoover, Franklin Delano Roosevelt, and Harry S. Truman. In addition to being the first woman shortlisted for the Supreme Court, Allen was a woman of many other firsts: the first woman judge in Ohio; the first woman to sit on Ohio’s Supreme Court; and the first woman appointed to a federal court of appeals (the Sixth Circuit). One of only a few women in law school, the male students “complimented” Allen by saying that she had a masculine mind.
Despite her “masculine mind” and graduating second in her class from New York University Law School, Allen, like many of the women in Shortlisted — all of whom had top-notch academic credentials — could not get a job with a law firm. She therefore started her own firm in Cleveland, did extensive pro bono work for the Cleveland Legal Aid Society, and was a prosecutor in Cuyahoga County before her election to the bench in 1920. She was later elected to the Ohio Supreme Court.
In private practice, Allen devoted her talents to the suffrage movement. She argued before the Ohio Supreme Court for the rights of women to vote in municipal elections and won, but women soon lost that right through a popular referendum. Fortunately, the Nineteenth Amendment passed shortly thereafter.
Allen faced nine male opponents when she ran for the bench. She won that race, and her subsequent race for the Ohio Supreme Court, with an outpouring of support from the woman she worked with in the suffrage movement.
In 1934, President Roosevelt nominated Allen to the U.S. Court of Appeals for the Sixth Circuit. Although the U.S. Senate unanimously confirmed Allen, none of the male judges on the court was pleased. Allen had to use the public restrooms because those in the private chambers area were designated for men. It would be 32 years before another woman was appointed to a federal appellate court.
Roosevelt’s wife, Eleanor, lobbied for Allen’s nomination to the Supreme Court. The authors speculate that Roosevelt may have felt that he had done “enough” to support women jurists in appointing Allen as the first woman on a federal appellate court. When President Truman shortlisted Allen for the Court, the justices sent word that they feared a woman’s presence would inhibit conference deliberations.
Allen never married, but had two long-term romantic relationships with women. Although Allen faced criticism for not being married, her relationships with women did not seem to be a factor in her career. The authors speculate that might be because, at the time, the relationships may not have been viewed as romantic.
A woman would not make the shortlist to the Court again until 1962, when Sonia Mentschikoff appeared on the shortlists of Presidents John F. Kennedy and Lyndon B. Johnson. After graduating from Columbia Law School in 1937, Mentschikoff joined a firm in New York and became one of the first woman partners in a Wall Street law firm. She was an author of the Uniform Revised Sales Act and the Uniform Commercial Code.
The press was fascinated with the novelty of a woman lawyer on Wall Street. In 1940, the New York Post published an article about Mentschikoff entitled “Dates, Clothes and Play Relevant, Not Material,” including a picture of Mentschikoff in a ball gown. The media also wrote about her Russian facial features, hats, and even her black lace underwear.
In 1949, Mentschikoff became the first woman professor at Harvard Law School. This was three years before women would be admitted as students. In 1951, Mentschikoff left Harvard to become the first woman law professor at the University of Chicago. She then became the first female dean of Miami University School of Law in 1974.
President Richard M. Nixon faced pressure to appoint a woman to the Court. The pressure came from the press, women’s organizations, academics, government officials, and even from his wife and daughters. Two women, Sylvia Bacon and Mildred Lillie, appeared on his shortlists.
While Nixon understood the political value of nominating a woman for the Court, he told his Attorney General, John Mitchell: “I don’t think a woman should be in any government job whatever. I mean, I really don’t. The reason I do is mainly because they are erratic. And emotional…. I lean to a woman only because, frankly…we got to pick up every half a percentage point we can.”
Following a practice established under President Dwight D. Eisenhower, Nixon sent his shortlist to the American Bar Association for vetting. In doing so, Nixon said to Mitchell that the ABA “may take us off the hook on the damn thing.” His prediction proved prescient. Despite her excellent qualifications, the ABA found one of the women, Lillie, “unqualified.”
Lillie’s life story is out of an Horatio Alger novel. She was raised by a single mother on a farm without electricity or indoor plumbing. Although she had to work through school to help support the family, she earned a scholarship to attend college at the University of California at Berkeley, where she also graduated from law school. Lillie joined the Alameda City Attorney’s Office, and then became an assistant U.S. attorney. After a stint in private practice, Lillie was appointed to the Municipal Court in Los Angeles, then served on the Superior Court for 11 years, and then the California Court of Appeals.
The New York Times wrote in 1971 that, “fortunately,” Lillie had no children. It also remarked that, in her 50s, Lillie still had a “bathing beauty figure.” At the time, Lillie had been a distinguished jurist on California courts for more than 20 years. After Attorney General Mitchell interviewed Lillie for the nomination, he said to Nixon, “People will see that she’s not one of these frigid bitches.” Nixon replied, “That’s right, I know, the terrible ones.” When Lillie died in 2002, she was the longest serving judge for the state of California.
Ironically, Nixon nominated not one, but two, male candidates to the Supreme Court who were rejected by the Senate despite the availability of highly qualified women: Fourth Circuit Chief Judge Clement Haynsworth was rejected out of concerns of racism and financial conflicts of interest; and Fifth Circuit Judge G. Harrold Carswell was rejected due to allegations of racism and opposition to women’s rights.
The other women discussed in Shortlisted are equally remarkable. The authors share anecdotes about the sexism, both subtle and overt, they faced in their careers. When Cornelia Kennedy, who was on President Ford’s shortlist in 1975, was first appointed to a state court in Michigan, the official certificate documenting her appointment had the pronouns “he” and “his” erased and replaced with “she” and “her.” When Kennedy was confirmed to the U.S. Court of Appeals for the Sixth Circuit, the male judges excluded her from their daily lunches at the University Club, which banned women. Eventually the male judges decided to stop frequenting the club unless it agreed to admit women, which it did.
The authors argue that the practice of “shortlisting” women might actually hinder progress. By placing women on public shortlists, only to then appoint a man, the president can advance an erroneous appearance of attempting to diversify the Court. The practice can pacify demands for equality while, in fact, maintaining the status quo.
Unfortunately, the authors are likely correct. Despite recent gains, and even with the recent confirmation of Amy Coney Barrett, only five of the 115 justices who have served on the Court have been women. No president to this day has nominated a woman for Chief Justice. This, despite the fact that justice is depicted by a woman holding the scales. Citing statistics about women in the legal profession, the authors argue that this is reflective of the progress that has been made, and of how much work remains, in the profession as a whole.
The authors reflect on whether this matters for the Court’s jurisprudence. Florence Allen was first shortlisted for a seat on the Court in the 1930s. The authors ponder how the Court’s jurisprudence, and the fabric of our profession and of society, might be different if there had been a woman on the Court since then.
Early in my career, in the 1990s, I had the privilege of working on the appeals on behalf of a child known as “Baby Richard,” a case that received national attention. Richard’s mother put him up for adoption shortly after his birth, and Richard had been living with his adoptive parents since he was four days old. Two months after Richard’s birth, the biological father moved to reopen the adoption and obtain custody. The trial court found the biological father unfit, and the appellate court affirmed.
The biological father appealed to the Illinois Supreme Court, which reversed and held that the adoption was improper. By the time the U.S. Supreme Court denied certiorari, “Baby” Richard was a four-year-old toddler. Heartbreaking images of social workers taking an hysterically crying Richard from his adoptive parents — the only parents he ever knew — and handing him over to his biological father, who was a stranger to Richard, made national headlines. Since the Illinois Supreme Court’s decision in 1995, legislative reforms have been enacted in Illinois and elsewhere to avoid this result.
Of the seven justices on the Illinois Supreme Court at the time, only one, Mary Ann McMorrow, was a woman. I’ve always thought it interesting that McMorrow wrote the powerful dissent, which was joined by only one other justice. Unlike the majority opinion, which applied a narrow legalistic approach from the biological father’s point of view, McMorrow’s dissent analyzed the case from Richard’s perspective and emphasized broader notions of justice and fairness. Her dissent opens with Cicero’s famous quote, “The good of the people shall be the highest law.” I’ve always wondered whether the result would have been different for Richard if the Illinois Supreme Court was more diverse at the time.
Similarly, in Shortlisted, the authors offer Justice Ruth Bader Ginsburg’s remarks in an interview after oral argument in Safford Unified School District v. Redding, involving the strip search of a 13-year-old girl at school. Ginsburg observed that none of the men on the bench know what it is like to be a 13-year-old girl. “They have never been a 13-year-old girl. It’s a very sensitive age for a girl. I don’t think that my colleagues, some of them, quite understood.”
The authors also point out that, during her career, Florence Allen worked to allow women to serve on juries. In 1961, however, the all-male Supreme Court upheld the exclusion of women on juries. The Court reasoned that “woman is still regarded as the center of home and family life.”
In addition to these and other anecdotes, the authors cite empirical studies showing a correlation between a judge’s gender and the outcome of cases involving women’s issues, searches and seizures, obscenity, the death penalty, gay and lesbian rights, divorce, and child custody and support. Studies also show that having a woman on a three-judge appellate panel influences the votes of the men.
Shortlisted is a fascinating read for observers of the Supreme Court, and anyone concerned about diversity and inclusion in the judiciary, our profession, and society. The stories of the remarkable, but mostly unknown, women shortlisted for our highest court fill an important historical gap. They also serve as a reminder that, despite how far we’ve come, we have a long way yet to go.