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Time for more women on the U.S. Supreme Court, and all courts

“There I am all alone, and it doesn’t look right,” said U.S. Supreme Court Justice Ruth Bader Ginsburg recently at Ohio State University.

“There I am all alone, and it doesn’t look right,” said U.S. Supreme Court Justice Ruth Bader Ginsburg recently at Ohio State University.

Now that Justice David Souter has resigned, attention has turned to whether President Barack Obama will appoint a woman. And he should. But unlike the U.S. Supreme Court, where the drop from two women out of nine to one is readily observable (and especially shameful compared to Canada, where four of nine justices and the chief justice are women), few observe the work of the powerful federal circuit courts of appeal. With appeals courts out of sight, it is easier to assume that women’s march toward equality is progressing steadily, when in fact we have lost ground.

President Jimmy Carter appointed more women than all previous presidents combined; he appointed 40 women or 15.5 percent of his judges. Although President Ronald Reagan appointed the first woman to the Supreme Court, Sandra Day O’Connor, only 7.6 percent of his appointments to the federal bench were women. President George H.W. Bush (41) appointed nearly half of his 36 women appointees (19.5 percent) in the year he ran for re-election, mostly by elevating Reagan appointees. President Bill Clinton appointed 108 women or 29.5 percent of his judicial appointments. President George W. Bush (43) appointed 71 women for 22 percent.

All of the nine justices currently serving on the U.S. Supreme Court first sat as a judge on a court of appeal. If we fail to appoint women to the courts of appeals, we are making it difficult if not impossible to nominate women to the U.S. Supreme Court. Moreover, the Eighth Circuit is the final appeal for most cases. Yet two circuits are one retirement away from becoming all-male courts, the First Circuit (New England) and the Eighth Circuit (Minnesota, North Dakota, South Dakota, Iowa Nebraska, Arkansas, Missouri).

Mission: more women on Eighth Circuit bench
The Infinity Project works to increase the gender diversity of the federal bench to ensure the quality of justice in the Eighth Circuit. We take our name from the number eight turned on its side.

Since it began, the Eighth Circuit has had 61 judges; only one of them has been a woman, Diana Murphy, who is 74 years old with no plans to retire. (Clinton nominated Bonnie Campbell, but the Senate never held a vote to confirm her.) Eleven judges currently sit on the Eighth Circuit Court of Appeals. (Seventeen judges serve if you count the six judges who have taken senior status.) The last nine appointments to the court have been men.

Because women are flocking to legal studies and increasing their representation in the legal profession, it comes as a shock to learn we are moving backward.

In New York, the panel recommended only men to replace Chief Judge Judith Kaye. In Florida, the judicial nominating commission is made up of only men. And in South Dakota, the last state to have a woman on its state supreme court, the governor openly mocked the idea that gender or race should be a factor as he appointments a man and only men’s names go forward for consideration for the federal district court. The Infinity Project hopes to spur the Obama administration to reverse this disturbing trend.

Sally J. Kenney is a professor of public affairs and law at the Hubert H. Humphrey Institute of Public Affairs at the University of Minnesota, where she directs the Center on Women and Public Policy.