By Ann Gerhart
Washington Post Staff Writer
Sunday, May 16, 2010; B01
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."
It seems sensible to imagine that a woman who has juggled it all -- the full-time job, the kids, the housework, the aging parents -- has a deeper and more instinctual grasp of the challenges facing similar women. Michelle Obama, a Princeton and Harvard Law grad like Kagan, now living in the White House with a guy who watches "SportsCenter" to chill, frequently tells her audiences of women various versions of "Look, I get it," to loud cheers.
Perception bias bedevils us in all kinds of ways, so it's too bad there is no data to examine whether a mother is a better judge for other mothers. But it's hardly surprising. Examining mothers vs. non-mothers would open a whole new front in the mommy wars; the PhDs who conduct research on gender difference are often women themselves, with little appetite to pick that fight.
And besides, there are bigger problems. The research on mothers in the workplace focuses on equity, and the conclusions remain dismaying: greater discrimination against mothers than women in general, and a 5 percent wage penalty per child, according to a study published in the American Journal of Sociology.
"So Elena Kagan might have had a career advantage," Eagly suggests, and Sotomayor, too, "not merely in terms of not devoting time to motherhood, but not being subject to the motherhood penalty."
For nearly two decades, women have made up close to half of law school graduating classes, but the partnership rate for women at the nation's major law firms is stuck at about 18 percent. A big barrier is "the maternal wall," a persistent set of assumptions that devalue women in the workplace when they have children, says Cynthia Calvert, a former partner with now-defunct Miller, Cassidy, Larroca & Lewin in the District who went part-time while raising her two children. Once a hard-charging lawyer becomes a mom, she will slack off and put her family first, or her brain just won't be as sharp anymore -- these are two of the most prevalent critiques Calvert hears in her work directing the Project for Attorney Retention. Still? "Still," Calvert says.
Women make up only 22 percent of the federal judiciary and only 26 percent of the state judiciary, according to a study published this year by SUNY-Albany's Center for Women in Government and Civil Society. That's a big problem, says Dina Refki, the center's director, because 33 percent is the threshold for change -- "the point where women become a critical mass and where their number is large enough to induce change in the normative conception of leadership and to exercise meaningful influence on the cultural norms which stereotype women's roles."
Other statistics reveal a fuller picture of the choices highly educated women make. The fertility rate for American women, when broken down according to education, is lowest for those with post-graduate degrees and highest for those with no high school diploma. And in a 2003 international survey of 100 men and 100 women in top jobs at 10 major U.S.-based corporations, 74 percent of female executives had a spouse or partner who was employed full time; among men, 75 percent had a spouse or partner who was not employed at all.
Add all this up, and there is a glaring reason that Obama's Supreme Court short list had very few moms on it (with Diane Wood, a mother of six, a rare exception). The numbers are against them.
If Kagan is confirmed, the number of women on the Supreme Court will hit that "change threshold" of 33 percent for the first time in its history, offering possibilities for a new stream of research into judicial decision-making.
To tease out any gender differences, researchers conducted a review of about 7,000 federal appeals court decisions between 1976 and 2002 and found no statistical difference in the way women and men ruled in a variety of types of cases, except one: sex discrimination.
In those cases, female judges were about 10 percent more likely to find for the plaintiff than their male counterparts, said Christina Boyd, a political scientist at SUNY-Albany and a co-author of the study. And on three-judge panels where at least one member was a woman, the men were 15 percent more likely to find for the plaintiff than on panels with only male judges.
So women do affect the law -- something Ginsburg learned through experience. "Yes, women bring a different life experience to the table," she told Emily Bazelon in an interview for the New York Times Magazine shortly before Sotomayor's hearings. "All of our differences make the conference better. That I'm a woman, that's part of it, that I'm Jewish, that's part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me."
In saying he wants justices who have "heart" and "empathy," and who understand "how our laws affect the daily realities of people's lives," Obama has invited us to ask who has a life outside work and who doesn't. That's hard to determine in a confirmation process that will require Kagan, like Sotomayor before her, to crimp her personality and bite her tongue.
Motherhood offers a one-word verifier. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and intimacy, all outside the workplace. Much of the time, it's the opposite of being strategic and assiduously prepared.
It's a story we understand without needing all the details.
Ann Gerhart is a reporter and editor on the national staff of The Washington Post. She will be online on Monday, May 17, at 11 a.m. ET to chat about this article. Submit your questions before or after the discussion.