An Either/Or Proposition?
This week President Obama nominated Elena Kagan, the Solicitor General and former Dean of Harvard Law School, to replace Justice John Paul Stevens on the Supreme Court. As a female lawyer, I was happy that the President chose this brilliant, accomplished woman to be his candidate for the country’s highest court. Assuming that Solicitor General Kagan is confirmed by the Senate, for the first time there will be three sitting female Supreme Court justices. That still does not reflect the percentage of women in the country, or even in the legal profession, but it is an improvement and I will gladly accept it as such.
But as I watched Solicitor General Kagan speak to the press after the President’s eloquent introduction, and heard her thank her brothers for coming to support her on this momentous occasion, I could not help but contrast this scene with the one when President Bush announced John Roberts as his Supreme Court nominee. Do you remember it? What stands out about that scene, for me, was Justice Roberts’s two small children frolicking in front of the podium.
Solicitor General Kagan, like Justice Sotomayor – the President’s first female nominee for the country’s highest court – is not married and does not have children. By contrast, the two most recent male nominees to the Supreme Court, Justices Roberts and Alito, each have two children. If Solicitor General Kagan is confirmed, there will have been four female Supreme Court justices, and only half — Justice O’Connor and Justice Ginsberg, the first two female Supreme Court justices – would be mothers. How many male Supreme Court justices in the over 200 year history of the institution have not been fathers? I actually could not easily find the answer to that question, but of the recent male justices, only Justice Souter does not have any children.
I want to be very clear: I have tremendous admiration for both Justice Sotomayor and for Solicitor General Kagan. They are both breathtakingly intelligent, hard-working lawyers and have devoted their professional lives to improving this country’s jurisprudence. They have reached the pinnacle of the profession that we share and I applaud their accomplishments. Separate and apart from my admiration for these women, I also believe that there is absolutely nothing wrong with women choosing not to have children for whatever reason, including professional reasons.Continued on the next page