There certainly won’t be a shortage of parents on the court. Antonin Scalia alone has nine children. John G. Roberts and Samuel Alito each have two, Stephen Breyer and Anthony Kennedy each have three and Clarence Thomas has a son from his first marriage and a grandnephew he began raising after the child’s father was sentenced to prison.
Nor is it a given that for a woman to find a seat on the highest court she must choose career over children. While Sonia Sotomayor is divorced and childless and Kagan never married and has no children, Sandra Day O’Connor has three sons and was married for 56 years before her husband died of complications from Alzheimer’s in 2009. Ruth Bader Ginsburg, in turn, is the mother of two; an introvert married for 56 years to an extrovert, she has one of the most endearing marriages in Washington.
The question, then — about the legal arena in particular and society in general — is what, if anything, has changed since the years when O’Connor and Ginsburg rose to the court. The world got better for women, right? More accepting, accommodating and flexible?
Only sort of. While generalization is impossible in a sample size of four, and while I don’t presume to know the details of these women’s personal-life equations, they do represent two very different working generations. Both O’Connor, who is now 80, and Ginsburg, who is 77, graduated from law school in the 1950s. Not much was given to or expected of women then, which created a paradoxical freedom. Ginsburg was pregnant with her first child while she was a law student. Because no top-tier law firm would hire O’Connor, she took a series of slower-track jobs, then spent five years as a stay-at-home mother.
Sotomayor, who is 55, and Kagan, who is 50, have women like O’Connor and Ginsburg to thank for the open doors that have greeted them nearly their entire lives. They were raised in an era when the words “women” and “career” were used regularly in the same sentence, and when a teenage Kagan could pose in judicial robes in her high-school yearbook, because such a dream was possible. They both went to Princeton, a school that did not admit women when the first two women on the court were in college (and where I overlapped briefly with Kagan on the staff of the college newspaper). By the time they were in or just out of law school (Kagan at Harvard and Sotomayor at Yale), O’Connor was already a member of the Supreme Court, and women were sought after for prestigious law positions.
But as women’s paths ascended, they also narrowed. Expectation brings obligation, and Sotomayor and Kagan were of the generation facing new tradeoffs. Pursue the career and sacrifice the family. Have the family and ratchet back the career. True, the stigma of not marrying or having children waned for this younger generation, making it more of a deliberate choice for some. But still, roads had to be chosen. There would be no taking five years off to stay home with your children if you hoped for a seat on the Supreme Court.
By 1990, when these women were in their 30s, the percentage of women between 30 and 34 who had never married (18 percent) was triple what it was back in 1970 (6 percent), when the older women on the court were about the same age. A decade later, when Sotomayor and Kagan were in their 40s, the author Sylvia Ann Hewlett commissioned a poll that found that one-third of those she calls “high-achieving women” were childless at age 40; among women earning $100,000 or more, 49 percent reached that age without having children.
“I wish she were a mother,” a feminist friend said when Kagan was nominated. “This sends the wrong message.”
But what exactly makes it wrong? Is it because there is some inherent “good” to being a parent — a quality of compassion or tolerance, a worldview beyond your own mortality — that would serve a justice well? Some argue that there is. “A jurist with a mama bear lurking inside,” writes Hilary Shenfeld at iVillage.com, would give the Supreme Court someone who has “wiped away dirt and tears, helped with homework and heartache, made as many decisions as dinners, really listened and really heard.”
Perhaps. But while parenthood certainly influences the way you see the world, it does not influence it in any predictable way. There are studies that show legislators become more conservative as they have more daughters, others that find that male executives become champions of women’s rights in the workplace when they raise girls. So it is, at best, a footnote in predicting how a judge will rule from the bench.
In a column in The Daily Beast, “Put a Mom on the Court,” Peter Beinart argues that the choice is “wrong” for another reason. Noting that only 4 of the 12 women who held cabinet-level positions in the Clinton and Bush administrations had children, he wrote: “Our government is actually doing a pretty good job of providing role models for the 20 percent of American women who don’t want kids. Where it’s failing is in providing role models for the 80 percent that do.” His pick for the court would have been Diane Wood, who has three children and three stepchildren. “Choosing Wood,” he wrote, “would send the message that women can have kids and still reach the apex of their profession.”
Yes, they can. Think Nancy Pelosi, Sarah Palin, Meg Whitman and Hillary Clinton. But it is still harder for mothers to reach the top. For men, having a family is an asset when pursuing a demanding career. For women, it is still a complication. So maybe the Kagan nomination sends the “wrong” message, but at the moment, it is also a realistic — and cautionary — one.