Elena Kagan sends us on the way to a motherless Supreme Court
As Mother’s Day comes to a close, we’re hearing reports that tomorrow morning, President Obama will nominate an individual to be the ninth Supreme Court Justice to replace retiring Justice John Paul Stevens.
There are all manner of issues to raise where Kagan is concerned – from the relevant, such as her minimal record of scholarship and her lack of judicial experience, to the irrelevant such as rumors that she’s a lesbian. Critics also have expressed concern that she’s too conservative-leaning for an Obama appointee. But an issue about Kagan that hasn’t been discussed is one that transcends her – if she is confirmed as a Supreme Court Associate Justice this year, the nation’s top bench will be heading toward a make-up with no mothers sitting on it for the first time since 1981.
It will be great to have 3 women sitting on the nation’s highest court, but it probably won’t last for long. An aging Justice Ruth Bader Ginsburg remains sharp as a tack, but her health is not great, and like Justice Stevens, she might feel the time is right to exit the bench while there is a guarantee that President Obama can replace her with someone who won’t move the Court to the far right.
There are no guarantees that a third Obama justice will be a woman, and even the statistical probability that he won’t appoint another woman given the variety of constituencies that he’ll need to satisfy with his next pick. And that will mean that the two women sitting on the nation’s high court (Associate Justice Sonia Sotomayor being the other) will both be single and childless.
Certainly there is no requirement that every Justice sitting on the court be a parent. But on a powerful body full of fathers, is it too much to ask that we have one mother as a member of the Supreme Court?
I would posit that there are an enormous number of problems in our country that have or will come before the Supreme Court in which motherhood is a critically important detail. From abortion to discrimination in the workplace to future technologies concerning genetic engineering and beyond, women and the decisions they make (or don’t get to make) about becoming mothers to sons and daughters will be burning issues in Supreme Court jurisprudence. Mothers in our society are often forced to make complicated decisions about their lives and those of their children that are not necessarily faced by childless women or even fathers for that matter. And since 1981, the Court has had the benefit of having a mother involved in deliberations on these issues, starting with Justice Sandra Day O’Connor, who was later joined by Ginsburg.
It’s true that Justice Sotomayor and a possible Justice Kagan could sympathize or even (gasp) empathize with mothers. But they’ve never personally been confronted with the choices that being a parent generally, and a mother in particular brings on in our society. Women in America are constantly facing decision points about whether to focus on work, raising a child, or both. Once they become mothers, women have to make decisions along the way about how best to raise their children. And the decisions they make for better or worse often wind up being of broader concern to society as a whole.
To me, if a woman doesn’t have a child, she has only an abstract ability to pass judgment on issues where motherhood is concerned. I say this not out of disrespect for childless women, whose own struggles I would not dare to play down. Rather, I say it out of respect for all the mothers in the world, including my own. Women with the concrete knowledge of the decision-making that comes with motherhood simply know better – ‘A mother knows best’ as we so often say.
General Kagan and Justice Sotomayor are talented women, and their unique experiences, legal knowledge bases, and ability to judge laws are worthy of esteem and fair consideration on their own merits. But I must insist that a Supreme Court without a mother on the bench would be as incomplete as a tricycle with two wheels. Mothers make the world move forward, and they need to have a voice in the arrangement of our society, from the boardroom to the courtroom and beyond.
So while the Solicitor General’s lack of children in no way disqualifies her, it would be a setback if in 2011 or in a year not too far off, we find ourselves with a bench of nine that includes no justices who are mothers. And that’s something that President Obama must consider when he contemplates future Justices beyond Kagan.