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. The third examined what it means to be "shortlisted." The fourth covered a shortlisting featured in the new FX show "Mrs. America." This post highlights one example of a structural reform that can combat the harmful consequences of being "shortlisted."
Before Ronald Reagan made history by appointing Sandra Day O'Connor as the first woman to the United States Supreme Court, another president did more than any other before him to increase diversity of the federal judiciary. Most do not immediately think of this legacy when they recall Jimmy Carter's presidency. Had he faced a vacancy on the Supreme Court, he surely would have been the first to place a woman on it. Instead, he implemented a structural change in the judicial selection process with profound results.
Carter understood that one of the most powerful roles of a president is the appointment of judges, who remain in office long beyond a presidential term. In February 1977, he issued an Executive Order to establish the United States Circuit Judge Nominating Commission with the explicit goal to document efforts for diversity.
Thirteen panels were created representing regions across the country, with a specific mandate that each include men, women, and minorities. The panels were charged with nominating appropriate candidates for the federal judiciary. Panel members included Judge Amalya Kearse, who at the time was still practicing law at Hughes, Hubbard & Reed in New York. She would, of course, soon find herself on the U.S. Court of Appeals for the Second Circuit two years later, in June 1979, thanks to one of those panels.
Memo Announcing Commission for the Selection of Judicial Officers, June 29, 1977, including Amalya Kearse. Source: Jimmy Carter Presidential Library.
To formalize the diversity efforts, the Nominating Commission members and senators were specifically asked, when considering appointments, what steps were taken to give public notice to minorities and women, including the names of organizations and groups receiving notice, as well as lists of all women and minorities who responded. Of the individuals considered, the Commission and senators were required to specify how many were women and minorities. The Commission also asked targeted questions of judicial candidates to determine their commitment to equality for women and minorities. These questions included: “How have you worked to further civil rights, women’s rights, or the rights of other disadvantaged groups on a national, state or local level?” “How many women attorneys and minority attorneys does your office or law firm include?” “How many women partners?” “Minority partners?” “What do you think the most crucial legal problems of women and minorities will be over the next few years? How should these problems be remedied?”
During Kearse’s confirmation hearing for the court of appeals, Senator Patrick Leahy asked her whether she believed the Carter process aided “in the selection of minorities and women.” Her initial response was diplomatic: “It may or it may not depending on the makeup of the panel and the instructions given to the panel and perhaps to the group of candidates who come before the panel.” Leahy pressed her further about the experience: “Were there any women on the panel?” Kearse replied: “There were 5 women out of a total panel of 11 in the Second Circuit.”
We can never know for sure if an all-male selection panel would have reached the same result on Kearse’s candidacy, but we do know that Carter’s diversification of the decision makers led to many more women in federal judgeships by the end of his presidency. As Carter said in a speech to the National Association of Women Judges in 1980, “When I became President, only 10 women had ever been appointed to the Federal bench in more than 200 years. I’ve appointed 40 more. And if the process was not so complicated, involving the United States Senators who represent a particular State—[laughter]—there would have been more still.”
Judge Kearse is the only minority woman shortlisted for the Supreme Court before O'Connor. Without Carter's structural reform to the judicial selection process, it's unlikely she would have been among those later considered by Presidents Reagan and Clinton and Bush for the Supreme Court. We still have not yet seen a Black woman on the Court, though Joe Biden has pledged to address this if he has an opportunity to fill a vacancy. Meanwhile, the President Trump "is on track to be the first president since Richard Nixon to go a full first term without selecting a Black nominee for a federal appeals court," as reported by Bloomberg Law last week.
Whether for the judiciary or other positions of leadership and power, the lesson to be learned from Carter is that structural reforms to the selection process--including diversity in who vets candidates, diversity in the pool of candidates, and emphasizing a commitment to diversity as a qualification for candidates--is a meaningful solution to combat the harms of being "shortlisted," i.e. "qualified for a position but not selected from a list that creates the appearance of diversity but preserves the status quo."
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