The Supreme Court Is Short on Women, and Sotomayor's a Good Start

The history of discrimination against women in the United States is long, complex, and shocking, Fred Strebeigh argues in Equal: Women Reshape Ameri can Law. Strebeigh, a widely published magazine writer and senior lecturer in the department of English at Yale University, spoke recently with U.S. News about the legal struggle for women's rights, Justice Ruth Bader Ginsburg's impact on the Supreme Court, and the importance of appointing a woman to replace Justice David Souter. Excerpts:

What is the central argument of your book?
Over many years, law has managed to discriminate against women, often knowingly. Supreme Court justices for decades, astonishingly, discriminated against women by most simply refusing to hire them as law clerks but also in some other quite dramatic ways.

Was there a way that most surprised you?
The greatest surprise came with a 1984 effort by Chief Justice Warren Burger to allow law firms to continue to treat women unequally by discriminating against women attorneys when considering them for partnership.

Why is it important that the next appointment be a woman?
The decision this [month] that pregnant women need not be given benefits, need not be permitted to continue in work, would have gone a different way with four women or five women on the court. The remarkable Lilly Ledbetter decision of last term, which Congress had to correct, in which a women was told that if she did not know that she was being discriminated against in pay early enough [she could not] bring her case—a court of four or five women would have decided in favor of Lilly Ledbetter.

What will be Ruth Bader Ginsburg's legacy on the court?
From her earliest days as a 30-something law professor bringing cases to the Supreme Court, Ginsburg has envisioned a true notion of equality in which women's equality is as important as racial equality. Her great effort was to ask the court to scrutinize discrimination against women as strictly as discrimination by race and by other so-called suspect categories. That goal is not yet achieved. And when women in significant numbers join this court, it will be.

Should Obama read your book?
At least one of his longtime advisers already has. His vice president is a major figure in part of the book because of the vice president's formidable effort to establish, with his Violence Against Women Act of 1994, that violence against women amounts to a civil rights offense against women. The administration's current focus on bringing women into the Supreme Court is a perfect step toward rectifying the history of inequality that Equal portrays. In late 1971 ... then Chief Justice Warren Burger learned that Richard Nixon might appoint a woman to the Supreme Court. The chief justice of the United States in 1971 had a letter delivered—a letter of resignation—in opposition to the appointment of a woman to the Supreme Court. It happens that Nixon was only "playing around," we now know from Nixon tapes available this decade. This was permissible behavior by justices of the Supreme Court. The depth of the opposition to the presence and the role of women in the law was profound.

What does the next Supreme Court justice need to know?
That the fact that Supreme Court justices in multiple ways discriminated against women is the hidden background to one of the great reasons why women particularly—diversity generally—need to be added to the Supreme Court. [This story of discrimination involves] a mix of personal discrimination—the justice who refuses to hire women as clerks—that seems to blend over into decision-making discrimination. [One example is] viewing discrimination against the pregnant as in fact not discrimination against women but as discrimination that involves pregnant persons and nonpregnant persons. This history of discrimination when presented to the average citizen is a shock.

What do you think of Obama's selection of Sonia Sotomayor for the Supreme Court?
She'll be a wonderful choice. Early discussion will focus on her comment back in 2001 that the gender of judges "may and will make a difference in our judging." And what my research for Equal suggests is that looking back over the recent history of judging will diminish any doubts that that is true—that indeed the gender of judges has affected judgments made by judges. A very useful resource will become the [volumes that] multiple judicial gender-bias task forces produced in collaboration with the National Association of Women Judges and the National Judicial Education Program. [There is] volume after volume of detailed examinations of gender bias in the court system of the United States. These are phone book-scale documents for state after state court and a bit of federal as well, which, when examined, will show that there's a deep history to the existence of gender bias within the court system.

How do you see opponents of the Sotomayor nomination attacking her?
One of the attacks will come in the area that I just pointed to: this fundamental sense that gender can make a difference in judging and her willingness to state that directly. But I believe the directness of that statement will prove to be a strength and an indicator of her honesty and her accuracy.

Critics call the choice identity politics. What do you think about this claim?
When male judges in the middle of the 20th century ruled that women should not be permitted legally to tend bar, they were making a judgment based on identity. Period. When judges in the 1970s ruled that women could be discriminated against if they were pregnant, and the discrimination was not against women but against pregnant persons, identity factored powerfully into that decision. Judges have had difficulty limiting the impact of their identity on their judging. But the inclusion of judges from a much wider range of backgrounds and life experiences will broaden understanding rather than narrow understanding in the judicial realm.