Does Gender Matter? A Feminist Look at the Nomination of Harriet Miers to the Supreme Court

President Bush's recent nomination of his White House counsel, Harriet Miers, to replace retiring Justice Sandra Day O'Connor is raising hackles everywhere.

Those on the left worry because she's conservative, a born-again Christian, lacks judicial experience, and reportedly once described Bush as the most "brilliant man she had ever met." Meanwhile, complaints from the ultra-right have been even more vociferous because Miers's paper record does not provide sufficient assurances that she will vote to overrule Roe v. Wade, oppose affirmative action, or seek greater constitutional room for religious initiatives.

Miers, a relative unknown, is thus a somewhat surprisingly controversial choice. But she is a woman, and that is a characteristic that, for some, counts strongly in her favor, given that women are currently very much under-represented on the Court.

First Lady Laura Bush said last summer that she would like her husband to appoint another woman to the Court (to join sitting Justice Ruth Bader Ginsburg), and, just before announcing his nomination of Miers, President Bush noted that he was "mindful that diversity is one of the strengths of the country." Justice O'Connor reacted to the announcement that Justice John Roberts had been nominated to replace her with only one reservation: "He's good in every way, except he's not a woman."

When Chief Justice William Rehnquist subsequently died, Roberts' nomination was shifted to that seat instead. (Roberts was ultimately confirmed as Chief Justice, and he began sitting with the Court on the first day of its October 2005 Term.)

So Justice O'Connor got her wish. Should she or anyone else care about the gender of a Supreme Court nominee? In this column, I will argue that the answer is yes -- though more for what appointing a woman symbolizes, than for what it what it is likely to deliver in substance, in this case.

Justice Ginsburg's background as a strong advocate for women's rights suggested that her decisions would further women's equality - and in cases such as the VMI decision, requiring the Virginia Military Institute to admit women, she did not disappoint. As noted below, Miers's own experience as a pathbreaker for women suggests that she, too, might have voted in favor of women entrants to VMI. But on other issues, Miers remains a cipher.

Symbolically, though, Miers's confirmation would still be a good thing for women. Despite dramatic increases in the number of women graduating from law school and entering the legal profession, law leadership positions remain overwhelmingly occupied by men.

So whether or not women judge differently, or are generally more sympathetic to women's issues, their ability to reach the pinnacle of a male-dominated profession is symbolic of one aspect of equality.

Women in the Legal Profession: Progress, but not Success

Though women have obviously come a long way in a profession that was once legally available only to men, it is too soon to claim success.

Of course, formal barriers of many kinds - the refusal to admit women to law schools, the refusal to admit women to the bar, the refusal by law firms to hire women (even those, like Sandra Day O'Connor, who graduated from elite law schools at the top of their classes) - have been torn down. Federal anti-discrimination laws like Title VII, and modern interpretations of the constitution's equal protection clause to forbid formal inequality between men and women, were crucial to that process.

Less formal barriers have also been removed. One need only listen to accounts from women who attended law school 30 and 40 years ago to appreciate how relatively hospitable today's legal education and legal profession is to women. As I discussed in a review of Judith Richards Hope's Pinstripes and Pearls, an account of the hard times for the Class of 1964's women at Harvard Law School, open hostility and humiliation from professors and male classmates was not uncommon.

But the numbers don't square up with the promise of equality, particularly when you consider the representation of women lawyers in positions of leadership. As detailed in a 2001 publication of the ABA's Commission on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession, the growing parity for men and women at the entry to the profession fades as one proceeds up the ladder.

Only 15 percent of law firm partners, for example, are women, and only 5 percent of managing partners are. Women comprise only 15 percent of the federal judiciary, and only 10 percent of law school deans and general counsels to corporations.

These numbers alone are disturbing. And studies suggest that women's qualitative experiences in the legal profession, even if they achieve high-ranking positions, are unequal. Women lawyers face persistent sexual harassment and discrimination, reliance on gender stereotypes that are harmful to women, and the lack of mentors and support networks.

Law firm and other workplace structures also create insurmountable work/family conflicts for women. Claims that women lawyers leave "voluntarily" before they make partner, or after, need to be assessed skeptically in light of the options firms provide to women - and men - who want to take time to care for young children, yet still work.

Interestingly, the reason for Justice O'Connor's retirement is a work/family conflict of sorts: Her husband reportedly is very ill. But the Supreme Court is not well set up for anyone to take a leave - meaning, ironically, it too may be less than hospitable to women.

Suppose a female nominee in her early 40s -- as young as Clarence Thomas was when he took the bench -- sought to bear children and take some time off to raise them. Or suppose an older woman sought to adopt and take time off? Or suppose a man sought to do the same? The Court is perhaps uniquely ill-equipped to handle work/family issues, for a single Justice's leaving creates the potential of a 4-4 tie in voting. And job-sharing, of course, is out of the question.

Why Adding Another Female Justice Will Matter Symbolically

While naming one more woman to the Supreme Court will not change this overall picture, failing to replace one of only two women on the nation's highest court - the most distinguished position any lawyer could hold - would send the wrong message.

Sandra Day O'Connor's appointment, by President Reagan, to a Court that had been all male for nearly two hundred years was truly momentous.

One of the lasting contributions of President Carter is the great strides he made in diversifying the federal bench with a record number of appointments of both women and minority judges.

President Clinton was similarly committed to diversity in the judiciary and carried on Carter's important work.

Clinton's appointment of Ruth Bader Ginsburg to the Supreme Court in 1993 made a further inroad into the male-dominated court. But it is still just that: a male-dominated court.

Turning back the clock by going from two women, to just one, would be a mistake, when equality should be pulling the Court towards even greater gender parity. (Racial and ethnic diversity are called for as well, and Miers is surely a disappointment to those who fervently called for the appointment of the Court's first Latino justice.)

Beyond Symbolism: Do Women Justices Decide Cases Differently?

While the nomination of another woman to the Supreme Court is an important symbol of equality, is it likely to make any substantive difference?

That's a hard question to answer, and predictions about how Supreme Court justices will decide cases often turn out to be mistaken (as Edward Lazarus argued in a column last week).

But there is one school of feminist thought that believes women judges are likely to differ, in the substance of their decision-making, from male ones. Cultural or "different voice" feminists have argued that women tend to engage in different styles of reasoning, tend to find different values important, and tend to be more sympathetic to certain types of legal claims. Justice O'Connor was well-known on the Court to take a special interest in cases where children's interests were at stake. She is also famous for her particular approach to deciding cases - an approach that involves more balancing tests, fact-specific inquiries, and concern for context than that of some other justices.

While, early on, these purported gender differences were considered by some to be an innate or inevitable function of sex, cultural feminists today tend to focus on women's typical life experiences as the root of difference. Women's greater role in reproduction and greater socially-allocated responsibility for caregiving are among the life experiences that are more typically female, even in modern society. For example, whether women work outside the home or not, they still tend to assume primary responsibility for raising children.

Do women judges speak in a different voice? Studies of judicial voting patterns have found few, if any, significant differences based on gender. The biggest difference seems to come in cases involving civil rights of one kind or another, but, even there, the difference is small.

Political party affiliation is a much better predictor of how judges will line up in non-unanimous cases, and it turns out that conservative women vote much more like conservative men, than like liberal women. (Several recent studies are described and analyzed in a recent article by law professor Theresa Beiner, "The Elusive (But Worthwhile) Quest for a Diverse Bench in the New Millennium," which appeared in the University of California-Davis Law Review in 2003.)

A better case can be made for the impact of life experiences on judicial behavior, than for that of gender alone. But it is hard to know which life experiences are most important.

Miers's Experiences as a Woman: Will They Affect Her Decisionmaking?

After all, Harriet Miers does have a long record of "firsts" in her quest to succeed in a male-dominated and sometimes hostile profession. Being the first woman hired at a large firm and, twenty years later, the first woman named as its head cannot have been easy.

But she has not shared other experiences that many women have had. She has never married and has no children. Given the theorized link between women's caregiving responsibilities and their "voice," it is not clear whether the cultural feminist argument will have much predictive value in this case.

It would be wrong to assume, of course, that Miers needs direct experience to sympathize with work/family conflicts or the reproductive issues women face. Justice David Souter - who is not only a man, but a never-married, childless one at that - has proven one of the most sympathetic justices to claims involving both reproductive rights and equality for women and minorities.

What about Miers's position on abortion? Some have predicted she may vote to overrule Roe v. Wade, and suggested she may be strongly anti-abortion. If she is, then it must be noted that her views represent those of many conservative women - though, in my opinion, they don't represent the position that, substantively, is the feminist one.

In the end, whether or not female judges actually decide cases differently, they may well bring other unique qualities to the bench. A convincing case can be made, based in part on the results of widely undertaken studies exploring gender bias in the courts, that they will be less biased in their treatment of litigants, lawyers, jurors, and court personnel. And more equality in the administration of justice should be as welcome as better outcomes.

Gender Remains Relevant - and Properly So - In the Choice of Justices

There might be a day when a justice's gender is irrelevant. But we have not yet seen that day. Gender equality is a prerequisite to gender neutrality in the administration of the law, and neither society nor the legal profession is there yet.

Many feminists would far prefer another nominee in the mold of Ruth Bader Ginsburg to Miers. But, realistically, the choice is between a female and a male conservative: President Bush, remember, earlier vowed to appoint justices in the mold of Scalia and Thomas.

Given those parameters, women's rights advocates are right to prefer a female nominee to a male one, though neither is likely to advance their causes very much.