The Supreme Court and Work-Life Balance
May 21st, 2010

I am tired.  Five for Ten (with a 4-day vacation to New York in the middle) wore me out.  Not to mention that in the past couple of weeks my company has heightened its internet security settings, making it more difficult for me to steal away quiet moments of my day, here and there, to escape into the thoughts and words of my favorite bloggers.  So I try to catch up on your worlds early in the morning and late at night.  And that, too, wears me out. 

I tell you this because I was going to take today off.  I was going to post some interesting links to tide you over until Monday, wherein I planned to resume my regular thrice-weekly musings on the various and sundry topics that interest me.  But then I read this article in the New York Times Magazine by Lisa Belkin and was riveted. 

At a glance this seems to be a heyday for women in the law.  Provided that Elena Kagan is confirmed for the first time in history the Supreme Court will seat three women.  Such unprecedented moments come rarely, and should be celebrated.  Or should they?  That is the question asked in this article.  And I’m thoroughly perplexed by it. 

The exception that some people are taking to Kagan’s nomination is that she is not married or a mother (as is also the case with Sotomayor, but was not the case with O’Connor or Ginsberg).  Apparently to some it implies that to ascend to the highest heights of her profession (or at least of the legal profession) a woman must sacrifice her opportunity to have a family.  Belkin puts it this way:

But as women’s paths ascended, they also narrowed. Expectation brings obligation, and Sotomayor and Kagan were of the generation facing new tradeoffs. Pursue the career and sacrifice the family. Have the family and ratchet back the career. True, the stigma of not marrying or having children waned for this younger generation, making it more of a deliberate choice for some. But still, roads had to be chosen.

The Daily Beast writer, Peter Beinart even went so far as to pen an entire piece entitled “Put a Mom on the Court” and state within it that he wished that mother and stepmother Diane Wood had been nominated in place of Kagan.  While I can concede some merits of this position, I struggle with it nonetheless.

I am not an attorney, a legal scholar, or a politician of any stripe.  But I am a smart person with a curious mind and I follow the current events of our government in a reasonable amount of detail.  And here’s my beef with the Kagan-isn’t-a-mother naysayers: 

It was her choice.  For years women didn’t have the choice to pursue career over family.  But generations of women fought for the right to do so.  Kagan made that decision and for all appearances it has served her well.  She should not be punished professionally for having chosen not to have children any more than any other woman should be punished professionally because she did.  Can you imagine the backlash that would be going on in this country if the converse had come to pass?  What if Kagan – all other qualifications being equal – had been passed over for this opportunity merely because she had a spouse and children in her life?  Working mothers everywhere would be in a state of revolt.

Furthermore, it isn’t the job of the Supreme Court to serve as a barometer for work-life balance.  It is the job of the Supreme Court to apply the Constitution thoughtfully in cases that aren’t readily decided by existing legislation or case law.  That’s it.  And that’s plenty!  Suggesting that her spot on the bench could be better filled by someone who is a parent because of the message it sends is demeaning to an accomplished and qualified nominee. 

I’ll step down off of my soapbox now, before I get too comfortable up there.  Moments like this really try my patience.  We women have worked so hard for our professional opportunities.  To discriminate someone who made the (very personal) choice to avail herself of them completely hits my funny bone.

We women have come a long way, but it’s still not a cakewalk.  Women who have careers judge women who decide to stay home.  Women who stay home judge women who decide to have careers (at the exclusion or inclusion of a family).  The whole point in all these struggles is that we all get to choose.  No two of us are alike.  We finally get the latitude to pursue lives that suit us.  Why on earth should our choices ever be held against us by someone who chose differently?  We’re on the same team here.  I chose what was right for me.  Elena Kagan chose what was right for her.  And as long as you chose what was right for you then we’re still in this boat together.  Right?

12 Responses to “The Supreme Court and Work-Life Balance”

  1. Anne Says:

    Very thoughtful post. I totally agree that women should not be viewed this way or that way based on their choice to have (or not have) children. BUT….I do think there’s merit in the stance that women have a tougher road–a skinnier tightrope–when it comes to the balance between family and work. In Kagan’s case, she simply may not have wanted to have children. But there are women every day who’d like to have both, and are judged in their professional lives when they try to have both. Women in academia pursuing tenure (and motherhood) spring to mind…full tenured women professors are still grossly underrepresented. Yes…women have a choice, and we should applaud that choice and leave each other the hell alone. But we should never stop looking at the systems that sometimes–not always but sometimes–push us into those choices.

  2. Eva @ Eva Evolving Says:

    Yes, yes. Thank you for writing this, Gale. We do need to stop and recognize these strange double-standards. You’re right: the issue of being a wife or mother is not relevant to doing the job of Supreme Court justice. And the fact that Kagan – and so many of us – had a choice is noteworthy. It’s hard to believe the birth control pill is now celebrating 50 years. That’s two generations of women empowered to choose their path.

  3. BigLittleWolf Says:

    Fascinating and important discussion, Gale. One that needs more airing. Your reasoned commentary is well presented, and fundamentally, I agree with you. Furthering your argument is this statement from Belkin’s article: But while parenthood certainly influences the way you see the world, it does not influence it in any predictable way. There are studies that show legislators become more conservative as they have more daughters, others that find that male executives become champions of women’s rights in the workplace when they raise girls. So it is, at best, a footnote in predicting how a judge will rule from the bench.

    However, I don’t think this is about work-life balance, or even whether or not those of us who have struggled to straddle the divide of profession and parenting have role models in high places. Relevance lies in pressing 21st century family issues that largely remain women’s issues. Our legal, health care, organizational and social systems still penalize those of us who raise the children, directly and indirectly. Of course, the highest court in the nation is about interpreting law. The desire to see a mother in that position speaks less (to me) of an individual of compassion than it does someone who may have faced the hard choices and day-in-day-out grind of parenting, its sacrifices, its unrelenting work, while also slogging through the trenches of competitive study and progressing up the career ladder.

    And not just to any career, but one of the most rarified roles in society: judge.

    Beinart also says this: because female justices, on average, will be more sensitive to the problems women face. Since they will have likely encountered gender bias themselves, they will be more likely to support government action to remedy it. I believe that to be more the pressing issue – and the reality of insufficient support for mothers in so many ways is why I understand the reasoning of wishing that Kagan were a mother.

    Does that mean it should be a criterion? Of course not. Her choice? Absolutely. May the best (wo)man be confirmed. The most qualified. Period.

    But we still have a very long way to go. And women with children remain the ones who carry the greatest load, whether they openly discuss it or not. No one should have to choose between family and dreams. Nor should any woman or man feel required by society to parent. But we don’t live in that world yet. I’m not convinced we ever will.

    A wonderful commentary. I hope more stop by to discuss it.

  4. Kristen @ Motherese Says:

    I’m riveted by your post, Gale, and by the insightful discussion it’s sparked. I haven’t yet read the Belkin piece, but it’s obvious I need to.

    I agree with you: the fact that Kagan is childless should have no bearing on her nomination or confirmation. It was her choice. End of story. And bully for her. I tend to get antsy whenever the media starts looking at criteria for women that I don’t think we’d be talking about were the nominee a man (e.g. whether or not she has kids, what her sexual orientation is, her height (!)), but I do think BLW makes an interesting point in noting that the simple fact of parenthood status might make a justice more sensitive to the realities families face. An interesting line of thought I need more time to process.

    I am grateful to you, even in your state of bloggy exhaustion, for drawing my attention to both the NYT and the Daily Beast articles. I look forward to reading them both when, hopefully, my mind is a little less foggy from this 5-for-10 hangover.

  5. Nicki Says:

    There are so many reasons why Kagan is a good choice. We should not be questioning her choices in life. Her judicial choices previously are important in her appointment but her life choices are not. I would love to see a mother on the court but do not think that is an important qualification in a female on the court.

  6. Gale Says:

    BLW – Thank you so much for your response. I appreciate your perspective and insight on the ways in which motherhood might influence a justices decisions and opinions. Having three women on the court is a landmark moment. I feel a bit guilty poking holes in it. But as you wisely state, we have a long way to go. And until many more strides are made it is our job to continue poking those holes in the status quo.

  7. BigLittleWolf Says:


    I think is a tremendous post – and as I said – I agree with you fundamentally. But as one who is both older, pursued career as a single woman well into my 30s before marrying, has known the reality of what happens to career when parenting comes into play, and then the very real challenges of being a woman trying to navigate single parenthood, profession, an inequitable family court system, lack of corporate infrastructure to deal with parenting (much less single parenting – my perspective is a bit different.

    I hope many read this post – and both articles you cited. This is, indeed, a landmark moment. May we ultimately reach the point where race, gender, age, sexual orientation and so many other characteristics are simply not at play. I think that’s a long way off, but I’m thrilled that in my life time I have seen some of the changes that I would never have thought possible even 25 years ago.

  8. TheKitchenWitch Says:

    Gale–I read an editorial this week (in our local paper) that was saying just this same thing. Why on Earth should she be judged in this way? It’s ludicrous. We don’t examine a man’s personal life in this manner. And the suggestions that she’s a lesbian just because she doesn’t have kids/husband is silly as well. Plus, who cares?

  9. Emily Says:

    I’m not sure the issue is the choice she made — and who knows, maybe it wasnt entirely her choice. I think they are talking about the makeup of the Supreme Court — and trying to ensure that as many demographics are represented. An impossible task to be sure. There are so many different “types” of people that they can’t possibly be represented.

    In a perfect world, we might have robots for Supreme Court Justices who are placed on the bench devoid of a history or a soul that might influence their decisions. But we don’t have that so we pick people who we hope are very, very smart — and very, very fair. Kagan seems to be both.

  10. Gale Says:

    Emily – I think you have a point. It seems to be the issue of her perspective on issues (in addition to the message sent by her not having a family) that some are so riled about. And I believe there’s merit in that. Interestingly, though, if confirmed, she and Sotomayor would be the only childless justices. So it’s not as if the perspective afforded by parenthood is at risk of being under-represented.

    Thanks for weighing in!

  11. Laura H. Says:

    The number of women lawyers who are a generation ahead of me and who have reached a level of success and experience to qualify them for nomination to the Supreme Court is surely small. The legal profession has treated women poorly for many, many years as evidenced by the equal number of women and men starting at law firms out of law school for the past 20 years, versus the dismal number of women who make partner at law firms every year – national average when I started practicing 9 years ago was 13% and last year’s average was 28% – still no where closet to 50%.

    Some anecdotal evidence that this is still happening…I was astounded after the birth of my first child in 2004 when a partner asked me if I would be able to dedicate myself to a sophisticated project for one of his clients even though I had “all those children.” He knew I only had 1 child.

    The women I know who “made it” often times postponed having children until after they became partners, at which time it was too late for many of them to have children. So we might look at a successful, childless woman and applaud the “choice” she made, but my best guess is that for a lot of them, it wasn’t a choice – it was too late.

    Although I do celebrate Kagan’s nomination and I think she is a great pick, I agree that the court’s makeup is important and is not to be ignored when nominating new justices. Although an interesting counterpoint is that often times the women who “make it” are the hardest on the women coming up in the ranks. I’ve read a number of articles about this phenomenom – basically baby boomer women feeling like they survived a lot of hazing and made a lot of sacrifices to get where they are so now the Gen X’er women should do the same. If this is the case, then the with children version of Kagan may offer less perspective on family and women than childless Kagan herself!

    Which probably gets me to the same point you get to Gale – women need to support each other no matter what choices we make – working, family, working and family, etc. We are on the same team.

  12. Woman work life balance Says:

    [...] Ten Dollar Thoughts » Blog Archive » The Supreme Court and Work May 21, 2010. However, I don't think this is about work-life balance,. and then the very real challenges of being a woman trying to navigate single Ten Dollar Thoughts » Blog Archive » The Supreme Court and Work [...]