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Wednesday, July 06, 2005

Women, judges, and women judges

Prof. Ann Althouse justifiably corrects NPR's Nina Totenburg for saying of the year 1981, when President Reagan appointed Sandra Day O'Connor to the Supreme Court, that "[t]here were very few women in law school." Prof. Althouse, herself a 1981 law school graduate, writes (emphasis hers):

It wasn't like: Wow, there's a woman on the Supreme Court — now, I see that women can go into the field of law!

I remember in 1981 saying to one of my many women lawprofs that I was interested in going into law teaching. One of the things she told me was that it used to help to be a woman, because law schools needed to increase the number of women on their faculties, but unfortunately I'd already missed that boat. That was too cynical, of course, but my point is that it was something you could say with a straight face in 1981, so let's not pretend O'Connor was a lone pioneer.

Still, it's sort of a question of what part of the snake's belly you focus on. Certainly, as Prof. Althouse points out, by 1981 women comprised a large percentage of law students and new lawyers, and a significant percentage of lawyers generally. But relative to those numbers, there were still comparatively few female partners at major law firms, female tenured law professors, and female trial and appellate judges — partly as a result of historical sexual discrimination, but also partly because those were (and are) not entry-level jobs.

During 1981, I was a law clerk for the second woman on the (old) Fifth Circuit, current Fifth Circuit Chief Judge Carolyn D. King, during her second year on the bench. Her single female predecessor, Phyllis A. Kravitch of Atlanta, had only a few months' seniority on her. The federal courts of appeals — usually considered to be the "farm teams" for the Supreme Court's bench — were definitely still "good ole boys' clubs" as of that time. Judge King, for example, was unusual because her previous practice experience was not in litigation, but in business and securities law, and that played a definite part in how the male judges of the Fifth Circuit perceived and related to her. But her two X-chromosomes were, frankly, a much bigger deal to many of those judges at the time, and some of them simply weren't quite sure how to deal with having these "lady judges" among them.

When rumors began to circulate that President Reagan was planning to appoint the Supreme Court's first female Associate Justice, both Judge Kravitch and Judge King were mentioned as potential nominees for the slot eventually filled with Sandra Day O'Connor; but like her, neither of them had been on any appellate bench for very long. And quite frankly, none of these three's then-existing judicial records — viewed objectively and without referrence to their sex — would have yet put them among the ranks of likely Supreme Court nominees.  Justice O'Connor was indeed an "affirmative action" nominee to the Court — the beneficiary of a sexual preference that was genuinely remedial in nature, redressing the then-still-lingering effects of past sexual discrimination. President Reagan squeezed the lump that was then just beginning to pass through the belly of the snake, and Justice O'Connor squirted ahead of some of her peers.

The times, though, were indeed a-changin'. I also began my first year of practice in late 1981 at Houston mega-firm Baker Botts, which (if I recall correctly) had three women among its 100+ partners at that time. During my first jury trial that year, I was allowed to tag along, literally carrying the briefcases of two of the firm's male Trial Department partners, for a way-off-the-record in-chambers conference with Judge W. Erwin "Red" James of the 127th District Court of Harris County. Judge James was then nearing the end of a long and distinguished legal career that he'd begun as a Roosevelt New Dealer, and he was the very personification of a "good ole boy." But he made a point of also inviting back to his chambers Baker Botts' sole female Trial Department partner, who'd been passing by his courtroom on other business.

Now, Judge James was famous among the local trial bar for starting every day's public docket call with some sort of joke — typically corny, but always G-rated. But he was also famous for telling some much more ribald and otherwise politically incorrect jokes and stories in chambers, and on this day he did not disappoint. And in the midst of the jokin', cussin', and tobacco-chewin', I remember being distinctly struck with the significance of this young woman trial lawyer being included — and not merely tolerated, but genuinely welcomed — as "one of the good ole boys" back in his chambers. I had a sudden realization that over the last 8-10 years, she'd earned her way onto Judge James' mental list of "hale fellows well met," with whom he was entirely comfortable swapping off-color jokes. But she was definitely still a pioneer — and not an affirmative-action appointee in her role, either.

I'm tickled pink that there's no longer any need for broad remedial sex-based affirmative action at any level of the legal profession. But that is a change that has occurred over the course of my own twenty-five year career, and it's indeed true that Justice O'Connor's appointment was a powerful symbolic step in that progress. It's fascinating — as history.

Historic symbols can indeed have lasting power for their inspirational value, and were Dubya to appoint the Court's first hispanic member to replace Justice O'Connor, I would not belittle those who would celebrate its symbolic significance. But I genuinely believe that America is well past the point when we need to speak of a "southern seat," or a "black or hispanic seat," or a "Jewish or Catholic seat" — or "women's seats" — on the Supreme Court. The "soft bigotry of low expectations" can be pernicious here too; and tokenism of any variety just sucks. Who Dubya picks is hugely important, but it's for the content of his or her (judicial) character, and not really for any other reason. I'm completely indifferent as to whether his nominee has a Y-chromosome or not, and I think most of America is too. We should actively strive to become studiously and equally indifferent as well with respect to the nominee's home-state affiliation, religion, race, and favorite breakfast cereal.

Posted by Beldar at 11:48 AM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink


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(1) kbiel made the following comment | Jul 7, 2005 12:46:59 AM | Permalink

We should actively strive to become studiously and equally indifferent as well with respect to the nominee's home-state affiliation, religion, race, and favorite breakfast cereal.

No! You are completely wrong on this point. We must retain some standards, I just won't stand for a SCOTUS assoc. justice who admits to eating Frosted Flakes!

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