Legal scholarship that creates new avenues of inquiry is inherently appealing, but when it also reveals obscured narratives of power in American society, you have the makings of a truly important contribution. Shortlisted: Women in the Shadows of the Supreme Court, by Hannah Brenner Jonhson and Renee Knake Jefferson, is all that and an engaging read besides. In their book, Brenner and Knake resurrect the largely forgotten history of accomplished female lawyers nominated but not selected for the Supreme Court. As these narratives highlight the pitfalls of being shortlisted rather than selected, Brenner and Knake’s work queries whether the term “shortlisted” is pejorative rather than a boon for female candidates. The authors present the harm of historical obfuscation as compound: “it is not just that the women were denied positions of distinction, but that their tales have been subjugated…unfairly stifl[ing] national imagination.” (P. 133.) Compiling this history and bringing it forward alone would be enough to make the book worthwhile—but the project doesn’t stop there. Instead, Shortlisted also ambitiously engages with the question of how to sidestep such marginalization moving forward.
Throughout the book, stories of highly qualified female candidates who are summarily eliminated from contention or only facially considered for political cover pulls the distinction between consideration and appointment into stark relief. (One reporter quoted in the book notes, “The women…reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.”) (P. 122.) The book begins with a deep dive into the life of Florence Allen, a jurist “universally respected” for her work ethic and intellect, who was shortlisted by President Truman. She is not only the first person on the shortlist—in a way, she bookends Sandra Day O’Connor—but her downfall became Justice O’Connor’s entrée. Before nominating Judge Allen, Truman consulted with then-Chief Justice Fred Vinson about her potential nomination. Chief Justice Vinson negatively responded that the presence of a woman would inhibit needed deliberations amongst the men. As such, Judge Allen’s nomination stalled; she was shortlisted, more of an end game than a path forward. Only with this context, can one truly appreciate the weight that the law school friendship between Chief Justice Rehnquist and then-nominee Sandra Day O’Connor played in history. If the two hadn’t been friends, would history have been different?
While the bulk of the women shortlisted for the high court are white, Brenner and Knake are aware of pitfalls of colorblind feminism, and they highlight the intersectionality barriers that women of color face in gaining status commensurate to their experience and talents. The luminous career of Amalya Lyle Kearse, the first and only women of color considered for the Supreme Court prior to Justice Sotomayor, highlights some of these additional dimensions to the shortlisting paradox. The first female and first black partner at her Wall Street law firm, she was also the first women elected to the American Association of Trial Lawyers and a member of the American Law Institute. By the time Judge Kearse ascended to the Second Circuit in 1979, she was only 42 years old. Although she served for an illustrious four decades on the Second Circuit, Judge Kearse was shortlisted twice to the Supreme Court, only to be set aside.
Each of these lawyers’ stories is relevant, important, and worth reading in any format. However, Shortlisted has the added bonus of being more entertaining than a virtuous slog through a survey of names and dates. Taking care to add nuance and color to what might otherwise be dry, Knake and Brenner pepper the recounting of the past with the voices of historic figures. Plucking plums from presidential libraries, news articles, and audio recordings, Shortlisted delights with references that leave one thinking “that’s rich.” (One particular favorite—Richard Nixon states, “I don’t think a woman should be in any government job…they are erratic. And emotional.”)
After O’Connor’s appointment, the book shifts to examine how women fared more broadly in the federal judiciary, to review impediments to additional judicial appointments, and to provide a brief treatment of the appointment and confirmation processes of Justices Ginsberg, Sotomayor, and Kagan. These factual retellings are less interesting than the normative brainstorming that follows: how to move women from the shortlist quicksand to actual nomination and finally to appointment and confirmation. Here, the authors seek to find intergenerational themes of subjugation in the specific histories they’ve just recounted to draw lessons for moving forward. The shortlisted women’s stories share certain common experiences of objectification (either through scrutiny and commentary on their physical appearances or using their candidacy instrumentally as a pawn in political chess), laser-like focus on their family status and obligations, each of these compounded by intersectionality with rigid sexual norms, age-related tropes, and racial bias.
This is a lot for anyone to bite off and chew, but Shortlisted resists the temptation to come up with a glib and pithy eleventh-hour answer. Some might fault the book at this point for failing to deliver on the promise of a straightforward solution. To this, I would counter that this book is best understood as an invitation to the scholarly community—to do more historical research, to invest in the project of building pragmatic solutions for working attorneys. The book enumerates, without embellishment, observed common themes and focuses the bulk of its remaining energy on presenting recommendations for getting more women selected for judicial appointment and confirmation. Some proposals require institutional reform such as the creation of systems of accountability that document inequity; some—like access to universal childcare—are practical. But the authors are aware that broad buy-in is needed for these suggestions to materialize and therefore home their energy towards recommendations that empower individuals to implement change. Specifically, they talk in terms of women’s deliberative choices: choices about partners and friends and how to use legal education to collaborate professionally and support other women, and the choice to create meaningful opportunities elsewhere rather than linger in dead-end environments waiting for Senator Godot to pluck them from obscurity. (P. 193.) While Shortlisted’s proposed fixes are not exhaustive, the book has ignited a brain buzz that is still simmering—and that will likely continue for weeks to come.