BY SUSAN ESTRICH
The likely [and much deserved] confirmation of Solicitor General Elena Kagan to the United States Supreme Court creates an opening for one of the “Top 4” positions in the Justice Department. While there are many qualified candidates, the fact is that Kagan was the only woman in the top ranks at Justice. Even below that, men substantially outnumber women.
At a time when renewed attention is being focused on the progress – and lack thereof – of women to the top levels of the legal profession, the president has an opportunity to continue the progress he has made toward equality on the Supreme Court by appointing a woman to succeed Kagan as solicitor general.
As of now, the attorney general, the deputy attorney general and the associate attorney general are all men.
At the level of assistant attorney general, three of 12 – Antitrust [Christine Varney], Environment and Natural Resources [Ignacia Moreno] and Justice Programs [Laurie Robinson] – are women. Had the president had his way, a fourth – Dawn Johnsen – would be heading the important Office of Legal Counsel. But her nomination ran into staunch opposition, and the “acting” head of that department is now a man.
A second level down, at the level of department heads, seven of 24 are women.
This is not about affirmative action, in the sense of quotas or special preferences. Just the opposite. If there is one field where equality should be the norm and not the exception, it is law – especially in government.
When I went to law school, a hundred years ago, fewer than 20% of my classmates were women. In the years since, however, those numbers have increased steadily to the point that many law schools have, for some years, been educating more women than men. And while the grueling hours and intense focus on “business getting” [often through the still “old boys network”] in private practice have led many women in mid-career to take themselves off the partnership track, government and public service have been the beneficiaries of many of these decisions.
Today, there are more women judges, more women with government experience, and more women within the varied careers of prosecutors, state government department heads, in-house lawyers and academics than ever before.
The Justice Department can and should set an example for the profession – an example in terms of excellence and ethics, and also in terms of diversity.
As a woman lawyer, it made me proud to think that the United States’ top lawyer for the Supreme Court was a smart, articulate and experienced woman. For every girl who has the chance to see an argument before the Supreme Court and who dreams of someday being there herself, the fact that there will now be three women sitting on the bench is a wonderful inspiration, only made that much better if it is a woman standing at the lectern.
Back when I was a law clerk and the Supreme Court was comprised of nine men, there was one day during the term when both Ruth Bader Ginsburg [then a professor and now a justice] and professor Herma Hill Kay of Berkeley argued on the same day. For the few women clerks, for the women in the chamber that day, for the secretaries and staffers, it was a red-letter day. We crowded the courtroom to see not one but two women argue. Most days, there were no women at all.
Justice William Rehnquist, noticing the rarity of two women arguing, quipped to one of them, “You mean, you’re not satisfied with having Susan B. Anthony on the silver dollar?”
The answer, then and now, is no. Not even close.
– Susan Estrich’s columns appear regularly in The Oklahoma Observer