With Hillary Clinton's book tour leaving much to be desired among her fans, the drumbeat has already begun for another presidential contender who can break America's last major glass ceiling. Progressives are practically begging Sen. Elizabeth Warren to make a run for the White House in 2016, and Sens. Kirsten Gillibrand and Amy Klobuchar both appear interested in higher office.
But while I'm just as eager as the next woman to see history made and little girls given the ultimate high-powered role model, if the last year has shown us anything, it’s that the presidency doesn't matter as much as the judiciary when it comes to protecting women’s rights. Now, before anyone fires off an angry letter to my editor on how I need a civics lesson, I am well aware that the president nominates judges. I am also aware, however, that the average Supreme Court justice or federal judge serves far longer than the Commander-in-Chief.
Recent Supreme Court rulings—particularly those that broke down along gender lines—should be cause for reflection among women and the men who love and respect them. Instead of pining for a woman in the White House, shouldn’t we be focused on putting more women on the bench?
The gender divide on the Supreme Court was highlighted after the Hobby Lobby case, in which a store sued to challenge the Affordable Care Act mandate requiring that it cover certain forms of birth control. The justices ruled in favor of the store in a close 5 to 4 vote. NPR titled its article on the ruling, “Justices Divide By Gender In Hobby Lobby Contraception Case.” The opening line read, “There was a clear difference of opinion between male and female justices at the U.S. Supreme Court on Tuesday.”
“Women like Sheryl Sandberg may be great role models, but it’s judges who decide whether Facebook is legally bound to cover birth control.”
There are those who might argue that the Hobby Lobby ruling only speaks to an ideological divide on the court, not a gender one. After all, Democratic presidents nominated all the current female justices, and liberal Justice Stephen Breyer] did join them in their dissent, though it’s worth mentioning that Breyer’s two daughters made him more likely to rule in a manner sympathetic to women.
Still, a study published in 2009 found that female justices were ten percent more likely to rule for plaintiffs in sex discrimination cases—regardless of the perceived ideology of the justices or who nominated them. The importance of a diverse judiciary rarely comes up as a priority in conversations about modern day feminism and the current fight for gender equality, but I can rattle off the names of a number of programs devoted to encouraging women to run for office. Until recently there was even a non-profit dedicated solely to electing a woman president. There has never been a similar program to get more women on the bench.
An argument can be made that, because the judiciary has specific requirements, there is less competition for the posts. The pathway to a powerful judgeship is more circuitous than to a State House or Congress. Holding public office doesn’t require a specific degree or, in some cases, any degree. Not just anybody can be a judge, but practically anyone can run for the U.S. Senate.
Yet despite there being more women than men in America, women make up only a third of the justices on the thirteen federal courts of appeal. On the third circuit they make up just 17 percent of justices, and on the eighth circuit 18 percent.
There are already initiatives devoted to increasing the number of women and girls that join the tech field. There are non-profits devoted to increasing the number of women and girls that pursue careers in science. So why don’t we put an increased emphasis on women joining the judiciary, where they can make a more direct impact on the life of every American woman and girl? Women like Sheryl Sandberg may be great role models, but it’s judges who decide whether Facebook is legally bound to cover birth control.
The good news is that, in recent years, women have begun to comprise nearly half of all students at the best law schools in the nation. This is a welcome development, and one we should do more to encourage, in part because some of these women are sure to become powerful judges.
So instead of just asking little girls if they want to be the first female president, maybe we should also ask them if they want to be the fifth, sixth, seventh, eighth, ninth or tenth female Supreme Court Justice. Breaking that last glass ceiling is important, but it’s crucial that we get more women on our highest courts.