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May 17 2010

Are More Moms Needed on the Court?

Sabrina Schaeffer

I was instantly drawn to Ann Gerhart’s opinion piece in the Outlook section of the Washington Post on Sunday, in which she makes an interesting observation:

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.

She acknowledges that Sandra Day O’Connor and Ruth Bader Ginsburg had it all – powerful careers, husbands, children. So it’s interesting that both the most recent confirmation – Sonia Sotomayor – and the newest nomination Elena Kagan are neither married nor mothers.

"For women and their climb toward social and economic parity," Gerhart asks, "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?"

Gerhart offers some interesting facts about women’s success in the workplace – especially in law:

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.

There was one glaring piece missing from the pie, however.  Perhaps the reason more mothers are not on the short list for the court is because it's not actually -- gasp! -- what women want. I’m all too familiar with the challenges of building a career and fulfilling my responsibilities as a mother.  But consider what television journalists Katty Kay and Claire Shipman wrote in their book Womenomics last year: "We actually don't want to make it to the very top of the ladder," they write, "if it costs us so much else in our lives."

So long as Gerhart opened up this conversation, I think we have to consider the whole picture.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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