MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
Next week, the Senate Judiciary Committee holds hearings on the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court. If confirmed, Kagan would become the third woman currently sitting on the nation's highest court, and that has prompted a discussion about the gender makeup of the court and the marital status of its members.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Do women judge differently than men? Justice Sandra Day O'Connor famously said: A wise old woman and a wise old man will reach the same conclusion. Justice Ruth Bader Ginsburg has made similar observations, but at the same time, she said that women bring to the table their own experiences, which inform their decision making.
She points, for example, to a decision written by Justice O'Connor in 1982 telling a state-run, all-female nursing school, that it had to admit a qualified male applicant. The dissenters in that case asserted that the all-female policy was a kind of affirmative action for women, a claim that Ginsburg notes was firmly rejected by O'Connor.
Justice RUTH BADER GINSBURG (U.S. Supreme Court): Justice O'Connor said in between the lines: I know what kind of affirmative action this is. Why do you think wages are so low in the nursing profession? Because there are no men in it. She, from her life experience, knew the best way to upgrade the pay in what was a woman's job was to get men to do it, too.
TOTENBERG: There is hard data that suggests the experiences of women both influence and do not influence their decisions. A study conducted at the State University of New York looked at 7,000 appeals court decisions from 1976 to 2002 and found that there was no significant difference in the way female and male judges decided cases, except in one area of the law: sex discrimination.
In these cases, women judges were about 10 percent more likely to find for the person charging sex discrimination. The data also showed that the presence of women influenced the male judges. On a three-judge panel, if there was at least one woman judge, the men were 15 percent more likely to find for the plaintiff than on panels where the judges were all male.
The Kagan nomination has prompted another discussion about gender roles and marital status. If confirmed, Kagan would be the second single and childless woman on the court - Justice Sonia Sotomayor is divorced, and Kagan has never married.
In contrast, the first two women to serve on the nation's highest court, O'Connor and Ginsburg, were both married with children. As a young lawyer, Ginsburg actually wore loose clothes to hide her pregnancy, for fear she'd be fired. And O'Connor interrupted her early career because she couldn't find a sitter.
But that was in a very different era, in which O'Connor and Ginsburg, like other female professionals, faced blatant discrimination, few opportunities at the outset of their careers and thus had to improvise.
Patricia Wald, the former chief judge of the federal appeals court here in Washington, started out in the same era. In 1951, she graduated from Yale Law School, then worked in private practice and took 10 years off of full-time legal work when her five children were young.
Ms. PATRICIA WALD (Former Chief Judge, U.S. Court of Appeals for the District of Columbia Circuit): Most of us, I think, thought of it as a seriatim or a sequential kind of process. We assumed we would get married, have some children and then it was kind of vague, off in the distance, about going back to work.
TOTENBERG: Do you think that today, big law firms would say, oh, sure, take 10 years off?
Ms. WALD: Not a chance.
TOTENBERG: Any significant time off can pose a problem for a young lawyer today, says Wald. A whole new world has opened up to the modern generation of women in the legal profession, but with those new opportunities have come new obligations and new tradeoffs.
Sotomayor spoke candidly of the tradeoffs in a 1986 interview on ABC.
Justice SONIA SOTOMAYOR (U.S. Supreme Court): The price is in terms of your personal life. A man who calls you three times and all three times you answer, I got to work late, I'm flying to such-and-such a place. After the third time...
Unidentified Woman: You can forget it.
Justice SOTOMAYOR: ...he begins thinking, gee, maybe she's not interested.
TOTENBERG: Judge Wald notes, too, that her generation of women law grads married relatively early, compared to many women lawyers today. Men were returning from the war and were ready - even eager - to settle down and get on with their lives.
Washington Post columnist Ruth Marcus makes another point: Powerful men seem to have an endless supply of women of all ages to choose from, while the same is not true for women.
Ms. RUTH MARCUS (Columnist, The Washington Post): Henry Kissinger famously said that power is the ultimate aphrodisiac. And if that's true, it doesn't seem to work very well when the power is wielded by a woman. Being a Supreme Court justice is not the sort of ultimate turn-on for asking somebody out for a date. Or the dean of Harvard Law School. Or being the solicitor general of the United States.
TOTENBERG: While some have lamented the fact that the two most recent female nominees to the court are not mothers, others note that the previous mothers on the court were appointed after their children were grown.
Patricia Millett, a frequent advocate before the Supreme Court, makes no bones about how hard it is to be married, raise a family and have a high-octane legal career. It is, she says, an almost inhuman juggling act, in which she's learned to slot her children's activities into her schedule just as she would a client.
Ms. PATRICIA MILLET (Lawyer): At least once a week, I do come very close to saying, I just have to give up. I can't keep this going.
TOTENBERG: Millet also goes out of her way to note that marriage with children is not necessarily a desirable path for everyone. Women are entitled to make that choice, she says. After all, prior to Justice Sotomayor's appointment to the court, there were six justices in the court's history who were unmarried and had no children - all were men.
Nina Totenberg, NPR News, Washington.
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