When Hillary Clinton was a Presidential candidate, male commentators frequently said she couldn't be elected because she reminded men of their nagging wives.
Now, more than a year later, President Obama has nominated a woman, Judge Sonia Sotomayor, to fill the Supreme Court vacancy created by Justice Souter's retirement. Mindful of New York Chief Judge Judith Kaye remark that "gender stereotypes are famously resilient," let us still hope that the sexism that was on display during primary season will not infect the nomination process of our next justice.
In its recent study, Improving Judicial Diversity, the Brennan Center cited cognitive research that suggests endemic implicit gender bias. Acquired in early childhood, our inclination to stereotype others automatically and without thinking prompts unconscious discriminatory behavior in all areas of life.
The world of orchestras supplies an unlikely, but concrete example of implicit bias in action. Researchers found that when female and male virtuosos audition for first violin, male candidates often get the job. But, if musicians audition behind a curtain that obscures their gender, more women get the job. Apparently the image of a male first violinist is so strong that it warped the way the violinist's music sounded to conductors. The disturbing corollary is that gender disadvantaged female candidates, even when they are better players.
Though women make up a third of the nation's lawyers, just three women had been named prior to today's selection of Judge Sotomayor, retired Justice Sandra Day O'Connor, Justice Ruth Bader Ginsburg and Harriet Meyers, whose nomination was withdrawn. By naming Judge Sotomayor, President Obama has tapped a long under-utilized portion of the nation's legal talent pool.
Even before the nominee was announced, there were already hints of bias against female candidates including a New Republic piece by Jeffrey Rosen that poo poos Judge Sonia Sotomayor's intellectual capacity. Gender stereotypes - that women are not as capable as men -- appear to animate these critiques.
Even with Judge Sotormayor's nomination, this twenty-first century Supreme Court continues to be significantly unrepresentative of America's population - a fact which calls into question how average Americans perceive the legitimacy of the Supreme Court. If the court looked like the general population, we'd expect five women on the court. If the court looked like the Bar, we'd expect three women. It's worth noting that other modern democracies, including Brazil and Canada, have female Chief Justices.
Would female Justices change the character of American jurisprudence? We won't know until we have a Court that better reflects the population. Meanwhile, as Professor Sally J. Kenney, a scholar of gender and the courts, writes, "[w]hether one wants better deliberation, truly meritorious selection, or legitimacy and compliance, all are served by a Court that includes women members." By selecting Judge Sotomayor, President Obama has shown that the right man for this important job is a woman.
Ciara Torres-Spelliscy is Counsel at the Brennan Center for Justice at NYU School of Law and co-author of Improving Judicial Diversity along with Monique Chase and Emma Greenman.
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