04.25.10

Put a Mom on the Court

A surprising percentage of women nominated to top government jobs have no children. Peter Beinart on why Obama should change that by tapping Diane Wood for the Supremes.

I hope Barack Obama puts another woman on the Supreme Court. And this time, I hope it’s a woman with kids.

Follow me into the briar patch. Why should we want more women on the court at all? For two reasons. First, because female justices, on average, will be more sensitive to the problems women face. Since they will have likely encountered gender bias themselves, they will be more likely to support government action to remedy it. And that firsthand experience of injustice may also sensitize them to the plight of other groups that have historically experienced discrimination. These are crude generalizations, of course, but they have a basis in fact. Just look at the women in Congress, who are far more likely to be pro-choice—and to lean left more broadly—than are the men.

Our government is actually doing a pretty good job of providing role models for the 20 percent of American women who don’t want kids. Where it’s failing is in providing role models for the 80 percent that do.

But there’s a second reason we should want more women on the court. It’s not just that they may alleviate gender injustice through their rulings; they may alleviate it through their example as well. Just as Barack Obama empowers African-American kids to believe that there are no limits to what they can achieve, female Supreme Court justices send the same message to young women. As anyone who has ever watched their daughter eye a Barbie Doll can attest, role models matter.

And that’s why it’s important not just to have lots of women in positions of political power, but to have lots of women with kids. It’s important because otherwise, the message you’re sending young women is that they can achieve professionally, or they can have a family, but they can’t do both. And without quite realizing it, that is the message our government has been sending. According to the Census Bureau, 80 percent of American women over the age of 40 have children. But look at the women who have held Cabinet posts in the last three presidential administrations. Only two of the Clinton administration’s five female Cabinet secretaries had kids. (Attorney General Janet Reno got her job only after two women with children, Zoë Baird and Kimba Wood, were dinged for hiring illegal immigrants as nannies). In the Bush administration, the figure was two of seven. In the Obama administration, so far, it is two of four. And if Obama chooses Elena Kagan for the High Court, the figure there will be one of three.

There’s nothing wrong, of course, with appointing childless women (or men, for that matter) to high office. But our government is actually doing a pretty good job of providing role models for the 20 percent of American women who don’t want kids. Where it’s failing is in providing role models for the 80 percent that do. (The government is also failing to provide many openly lesbian role models, and I’d love to see Obama change that. But sexual orientation and childlessness are separate issues, not least because lots of lesbians have kids.)

Critics might argue that even publicly discussing whether a female Supreme Court contender has kids represents a sexist double standard: another example of the disproportionate personal scrutiny that women in public life must endure. But there’s a reason for that disproportionate scrutiny: Men with children don’t have a role-model problem. After all, every one of the male Supremes has kids. (Antonin Scalia alone has nine.) And even if the media pretends that women with children aren’t underrepresented in high office, it’s a good bet that the young women who look to them for inspiration will catch on. Consider the following two news reports. Soon after John Roberts was confirmed as chief justice, USA Today ran a syrupy feature entitled “Roberts Plays Dual Roles: Chief Justice and Father” filled with sentences like “He takes the children to swimming lessons. He tries to keep 5-year-old Jack from using 6-year-old Josie’s violin as a pretend weapon. At the end of the day, he helps put them to bed.” Message to little Johnnies everywhere: You can have a great job and a great life all at the same time. Compare that to Pennsylvania Governor Ed Rendell’s comment after Barack Obama nominated Janet Napolitano to head the Homeland Security Department. “Janet’s perfect for that job,” Rendell quipped. “Because for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19 to 20 hours a day to it.” Message to little Janets: Go ahead, shoot for the stars. Just be prepared for a life devoid of anything but work.

Obviously, the problems that women face balancing work and family won’t disappear just because Obama picks someone like Diane Wood (three children and three stepchildren) for the High Court. But choosing Wood would send the message that women can have kids and still reach the apex of their profession. That’s a message that I’d like my working wife—and our 2-year-old daughter—to hear.

Peter Beinart, senior political writer for The Daily Beast, is associate professor of journalism and political science at City University of New York and a senior fellow at the New America Foundation. His new book, The Icarus Syndrome: A History of American Hubris, will be published by HarperCollins in June. Follow him on Twitter and Facebook.