The Supreme Court needs more mothers

By Ann Gerhart
Washington Post Staff Writer
Sunday, May 16, 2010

Yes, we know the Supreme Court is stacked with Catholics, Jews, Ivy Leaguers, New Yorkers, judicial monks and opera fans. And no, the cohort of nine justices doesn't much resemble the whole of America. So President Obama set out to at least add one more woman to the mix.

His nomination last week of Elena Kagan to the court, Obama declared, would make the body "more inclusive, more representative, more reflective of us as a people than ever before."

The grumblings came quickly: He should have chosen a black woman, some said, or an Asian American, or someone with a law degree from a public university. But in selecting Kagan, Obama ensured that one key demographic would actually lose representation on the court, compared with its membership just a few years ago: mothers, a category in which 80 percent of American women eventually land.

It's not like we've never had moms in black robes. The flinty rancher and the feminist firebrand who blazed the trail for female justices both are mothers, with five children between them. Sandra Day O'Connor and Ruth Bader Ginsburg, who joined the bench in 1981 and 1993, respectively, benefited from high-achieving husbands who held the Bible for them as they were sworn in, supported their aspirations and sacrificed for their careers.

O'Connor, now 80, and Ginsburg, now 77, never talked much about balance in their own lives; they just made it work.

The women of a younger generation who stand on their shoulders, Sonia Sotomayor and, if confirmed, Kagan, are single and have no children. That's not a judgment, just a fact, a line or two not found on their extraordinary bios. If Ginsburg is the next justice to step down, the court could be transformed into a body with no mothers -- otherwise known as people who know what it's like to come home from work and spend a night picking lice out of a kid's hair.

For women and their climb toward social and economic parity, is this a sign of progress or a setback? And for the country and its Constitution, would more mothers on the bench change the way the laws of the land are interpreted?

"Personal experiences are important, and they shape people's backgrounds, but there are a range of ways you can inform understanding without living it," says Deborah Rhode, a Stanford University law professor and a leading scholar of legal ethics and gender. "Do we want to suggest that men can't understand . . . the challenges facing working mothers and related issues?"

Well, no, we don't, certainly not out loud.

The memories of the distinguished gentlemen from Arizona, Utah and South Carolina haranguing Sotomayor at her Senate confirmation hearing last summer are too fresh. I, for one, am grateful that no one has turned up any record of a Supreme Court nominee saying, "I would hope that a wise working mother of three, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life." The howls would be deafening.

Women in general are more "socially compassionate" than men, says Northwestern University social psychology professor Alice Eagly, citing her analysis of decades of research on gender difference in decision-making. As legislators, lawyers and judges, women are somewhat more likely than men to favor what we call, irritatingly, "women's issues," generally child care, reproductive rights, sex discrimination in the workplace, education and health care.

But differences between mothers and non-mothers? "Interesting question," Eagly said in an e-mail. "I don't know of any studies on this question of motherhood and decision-making."

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