Outside the Beltway

Sex and the Supreme Court

James Joyner · Monday, May 10, 2010 · 5 comments

Responding to the fact that, by nominating Elena Kagan to the Supreme Court, Barack Obama has now gone two-for-two in appointing women to the High Court — and, assuming she’s confirmed, would triple the number of female Justices in a matter of months — NRO’s Kathryn Jean Lopez tweets, “Just wondering: are men allowed to be nominated to the supreme court anymore?”

Ezra Klein retorts,

Assume that men and women are about equally capable of serving on the Supreme Court and there are about equal numbers of them in the country. The chance that two women in a row might be selected? About 25 percent. That is to say, it’s the same as the chance that you might flip a quarter and see it come up heads both times. And because the two events are theoretically independent (at least in our hypothetical), once a woman has been chosen for the first slot, the chances that a woman will be chosen for the second slot are 50-50. So Kagan, or someone of her gender, had an even shot.

Actually, it’s more complicated than that.  While highly qualified lawyers with the right backgrounds of either sex are presumably equally qualified to serve on the Supreme Court, the number of highly qualified lawyers with the right background who are women is simply dwarfed by the number of highly qualified lawyers with the right background who are men.

The Bureau of Labor Statistics reports that only 32.4% of all lawyers in the United States in 2009 were women.   That’s not surprising.  After all, as recently as 40 years ago, most law schools discriminated against women — figuring they would quit work upon marrying and thus it was a “wasted” slot.   Similarly, of the top 50 law firms in the country, only 14% had female managing partners and only 20% of the equity partners were women.

Now, those numbers are skewed somewhat by the inclusion of lawyers that are too old to realistically be candidates for SCOTUS appointment.  Still, Kagan — young even by recent nominee standards — graduated law school in 1986.  Even by that point, less than 40% of the law school graduates that year were women.   The peak year, 1993, saw 50.4 percent of JD degrees go to women.  But that quickly fell off and, for the 2008-2009 class, women made up 44% of law school students.

Furthermore, as a recent study conducted by Kaplan test prep (which administers the LSAT) found that, while 52% of male applicants to law school planned to run for political office in the future, that was true of only 34% of women.  While that’s not a perfect proxy, it’s reasonable to extrapolate that — even now — men are more likely to go into politics than women.

Now, of course, we’re not talking about aggregate probabilities.  Rather, President Obama is selecting from a pool of highly talented under-60 attorneys who have pursued a politically oriented career and have a  judicial philosophy compatible with his ideals.    Given that women are more likely to be Democrats, the skew is slightly straightened.   Even so, there are doubtless more qualified male candidates for him to choose from.

All that said, I agree with Ezra that it’s not statistically shocking that Obama has picked two women in a row.  For one thing, one presumes Obama is intentionally trying to diversify the Court.   For another, it’s probably less remarkable than the fact that George H.W. Bush found Clarence Thomas, one of a relative handful of black Republicans, to be the most qualified person in the country to appoint back in 1991.

Still, it’s worth at least noting the anomaly that, of the three women who have sat on the Supreme Court in the history of the country, two are now on the bench and of the potentially four women who will have ever served on the Court, two will have been nominated back-to-back.

Oh, and I should note that a variant of Lopez’ joke has been told by Madeleine Albright who, playing off the fact that, since she was appointed to succeed Warren Christopher in 1997, we’ve had three women and two blacks as Secretary of State and quipped, “Somewhere in America, there’s a young man who believes that when he grows up, he may become Secretary of State; it’s just not exactly clear when.”