This post is part of a series about my new book Shortlisted: Women in the Shadows of the Supreme Court, co-authored with Hannah Brenner Johnson. The first post offered an overview of the book. The second shed some light on how we found the women profiled in the book. Today’s examines what it means to be “shortlisted.”
When we set out to write this book, we thought the mystery to be solved was the number of women who had been shortlisted before Ronald Reagan placed Sandra Day O’Connor on the Supreme Court. We followed clues through presidential archives and news accounts.
Little did we know in solving that mystery (the answer is nine, by the way) we would uncover another revelation, what we call being “shortlisted.” Here’s how we define it:
shortlisted, adj. qualified for a position but not selected from a list that creates the appearance of diversity but preserves the status quo
Nixon is perhaps the most egregious example of this “shortlisted” phenomenon. He put Sylvia Bacon and Mildred Lillie on his publicly-known shortlist, all the while trusting that, in his words, “the bar may take us off the hook on the damn thing.” That “thing?” A woman on the Supreme Court. (Chief Justice Burger had written to Nixon's attorney general a letter stating that "he’s not anxious to have a woman" join the Court and Nixon, himself, did not think women should even be allowed to vote.)
Then, after preserving the all-male Court following the confirmations of William Rehnquist and Lewis Powell, Nixon turned around and bragged about his commitment to women in remarks at the Convention of the National Federation of Republican Women: “While I know that a great number in this audience, including my wife, felt very strongly that not only should a woman be considered but that a woman should be appointed, let me say that at least we have made a beginning, and there will be a woman on the Supreme Court in time.”
Reagan’s shortlists illustrate another form of this phenomenon. Known famously for the historic O’Connor appointment, Reagan would go on to have two more opportunities to add women to the Court. When Chief Justice Burger announced his retirement in 1986, Reagan elevated Rehnquist and replaced him with Antonin Scalia. Reagan shortlisted no one for the position of chief, and shortlisted only Robert Bork with Scalia. The final opportunity came with Justice Powell’s resignation in in 1987. For this seat, Reagan shortlisted two women—Cynthia Holcomb Hall and Amalya Kearse—along with Bork, whom he ultimately nominated. The Senate rejected Bork, however, after a fiercely contested battle led in part by civil rights and women’s rights groups. Interestingly, Carla Hills (shortlisted for the Court by President Ford—recall that she served as his Secretary of Housing and Urban Development) testified before the Senate Judiciary Committee on Bork’s behalf. Reagan’s final shortlist included three women—Hall (again), Edith Jones, and Pamela Rymer—and Anthony Kennedy, who he selected. As a commentator noted in the New York Times: “The women, particularly Judge Hall and Judge Rymer, reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.” All of these women were as qualified as the men selected to serve on the Court.
The concept of being “shortlisted” helps to identify and explain latent discrimination and bias both within and outside of the judiciary.
We believe policies like these are important, but after conducting the research for our book, we are left questioning whether presence on the shortlist is sufficient and we are concerned about ways that shortlists meant to expand diversity actually become tools to preserve the status quo. Our book concludes with potential solutions, drawn from the lives of the shortlisted sisters we profile. I’ll return to that in my next post.
I bought the book and am about 2/3rds of the way through it. I have generally enjoyed it. I am frustrated that there is a simple math error that neither author nor editors at NYU caught. 4 of 114 justices have been women. That is NOT .035 percent. (As claimed on page 3 and again in italics for emphasis you say "less than half of one percent of Supreme Court justices since the founding of this nation have been women" on page 125). In reality it is 3.5%
1 in 100 is 1%, 4 in 114 is 3.5% - the fact that 114 is less than 400 should have told you that more than 1 percent of justice are women.
In order to convert from a fraction (4/114) or a decimal .035 you need to multiple by 100 to get to a percentage.
Admittedly 3.5% is an embarrassing number for all the reasons you rightly point to in the text. But it would have been nice if someone had caught the math error, especially since you emphasize a mathematically incorrect point. It would accurate to say less than 4% of the justices have been women. That is still unconscionably low - but better supported by your data.
Thanks!
Posted by: Anon | May 25, 2020 at 02:44 AM
As I am continuing to read, on page 132, you note that "only four of seventy-eight vacancies on federal appellate courts were filled by women, less than one percent" but of course 4/78 is 0.0512 or 5.12% of vacancies. Since 1 in 100 would be 1%, 4/78 should obviously have been more than one percent not less.
Again the number is inappropriately small - its just wrong to call 4/78 "less than one percent"
Posted by: Anon | May 25, 2020 at 03:49 AM