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The women shortlisted for the Supreme Court before Sandra Day O'Connor

The women shortlisted for the Supreme Court before Sandra Day O'Connor
© Greg Nash

Even as Women’s History Month draws to a close, conversations will still swirl around speculation of which women might appear on President BidenJoe BidenBiden taps California workplace safety leader to head up OSHA Romney blasts end of filibuster, expansion of SCOTUS US mulling cash payments to help curb migration MORE’s first shortlist for the United States Supreme Court. After all, as part of his presidential campaign he promised the country the first Black female jurist on its highest court. Although not yet faced with a vacancy, names like California Supreme Court Justice Leonda Kruger, NAACP Legal Defense and Educational Fund President Sherilynn Ifill, and United States District Court judge Ketanji Brown Jackson have already appeared in the headlines. Soon one, if not more, will forever be memorialized in the standard American history narrative just like Sandra Day O’Connor, who became the first female Supreme Court justice in 1981. 

While we look forward with anticipation to the future diversification of the Supreme Court, we are simultaneously compelled to share an important untold history. Before any women made their way onto the nation’s highest court, there were nine who found themselves on official presidential Supreme Court shortlists going back to the 1930s. All were imminently qualified for the job, having knocked down barriers and blazed trails to achieve extraordinary success in their legal careers before being named as contenders for the Court. They should be household names, and some were in their time, though none graces a page of any standard K-12 history text or even most law school curricula. 

We introduce them to you now in the hope you will be inspired to learn more about the women who shaped this nation. Women’s History Month may be almost over, but that does not mean our attention to women’s historical contributions should end. Indeed, this ought to be a year-round pursuit.

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  1. Florence Allen (1884-1966, shortlisted by FDR and considered by presidents before and after him) 

Allen was elected to the Common Pleas Court of Ohio in 1920, the first woman to serve on a general jurisdiction court in the United States. The state elected her to the Ohio Supreme Court in 1922, making her the first woman to sit on the highest court of any state. In 1934, President Roosevelt appointed her to the U.S. Court of Appeals for the Sixth Circuit, where she served until 1959. Her name appears on a 1937 memorandum prepared for FDR as he contemplated expansion of the Court’s membership, though he never elevated her. Her candidacy was shot down again under Harry Truman, because Chief Justice Fred Vinson “feared that a woman’s presence would inhibit conference deliberations where, with shirt collars open and sometimes shoes off, they decided the great legal issues of the day,” as Justice Ruth Bader GinsburgRuth Bader GinsburgProgressives give Biden's court reform panel mixed reviews Biden will let Breyer decide when to retire, aide says Biden establishes commission to study expanding Supreme Court MORE later explained in a 2003 law review article. 

  1. Soia Mentschikoff (1915-1984, shortlisted by LBJ)

Mentschikoff became the first female law professor at Harvard Law School in 1949 — three years before female students were even admitted — and remained until 1951, during which time she also served as the Associate Chief Reporter for the Uniform Commercial Code. In 1951, she became the first female professor at the University of Chicago, hired along with her husband Karl Llewellyn. Anti-nepotism rules prevented hiring both as tenured faculty,  so she was given only an untenured position as “Professional Lecturer” until after Karl died, when the University finally awarded her tenure. Mentschikoff went on to attain many other firsts. She was named the first female dean of Miami Law School in 1973. She became the first female president of the  Association of American Law Schools in 1974. 

  1. Mildred Lillie (1915-2002, shortlisted by Nixon)

Lillie was one of three women in her law school class at UC Berkeley. Alexander Kidd, her criminal law professor, referred to her with the honorific “mister” because he could not tolerate the presence of women in law school. She would go on to serve for decades on the California Court of Appeals and become its presiding judge. The American Bar Association’s Standing Committee on the Federal Judiciary gave Lillie an “unqualified” rating when asked to evaluate her suitability for the nation’s highest court. Many years after her shortlisting, Nixon’s White House Counsel John Dean compared her qualifications to that of O’Connor, finding her equally deserving despite the ABA’s conclusion. Like other women being considered for leadership positions, Lillie’s appearance was scrutinized by the media with one article noting that she maintained a “bathing beauty figure” even in her 50’s.  

  1. Sylvia Bacon (1931-present, shortlisted by Nixon)

Bacon began her legal career as a clerk to Burnita Shelton Matthews, a judge for the U.S. District Court for the District of Columbia, from 1956–57. (Judge Matthews was appointed in 1949 by President Truman, after long enduring discrimination herself as a woman in the legal profession, including having her application and dues check rejected by the District of Columbia Bar Association. She made it her practice to hire only female clerks.) Bacon worked for the United States Department of Justice from 1956 until 1970 and was then appointed by Nixon to the Superior Court of the District of Columbia. Bacon was just 39 years old when her name surfaced as a potential nominee. She was widely discussed during the same time that Lillie was also shortlisted. Nixon was criticized for ultimately selecting two “fallback candidates” — William Rehnquist and Lewis Powell — rather than one of the women.

  1. Carla Hills (1934-present, shortlisted by Ford)

Hills was one of only a handful of female students during her time at Yale Law School. And the year she graduated from law school, 1958, there was not one female partner in a law firm in Los Angeles County where she aspired to work. Early in her career, Hills served as the Housing and Urban Development Secretary under President Ford, and in this capacity had the distinction of being the youngest person (let alone woman) ever to occupy that role. She was the only woman in the cabinet during her appointment, and the third woman to ever serve in a president’s cabinet. 

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  1. Amalya Lyle Kearse (1937-present, shortlisted by Reagan, Bush, and Clinton)

The only woman of color to appear on this list, Kearse graduated from the University of Michigan Law School and following President Carter’sappointment in 1979, became the first woman and second African American (following Thurgood Marshall) to serve on the United States Court of Appeals for the Second Circuit, a position she still holds today in senior status. 

  1. Cornelia Kennedy (1923-2014, shortlisted by Ford and Reagan) 

Kennedy was affectionately referred to as the “First Lady of the Michigan Judiciary'' due to her status as the first woman to be appointed to the federal bench in Michigan in the U.S. District Court for the Eastern District of Michigan. She also was the first woman to serve as chief judge of a U.S. district court. She was nominated to the Sixth Circuit Court of Appeals in 1971, replacing Allen when she retired. Allen left her the hotplate she had used to warm her lunch while all of the judges dined together at a men-only club. Kennedy eventually changed that practice, but kept the hotplate in her chambers on a marble pedestal as a reminder of the barriers women face in professional life. 

  1. Joan Dempsey Klein (1924-2020, shortlisted by Reagan)

Klein was presiding justice of the California Court of Appeals, Second Appellate District, Division Three in Los Angeles when she retired in January, 2015, having been appointed to the position in 1978. She was the first woman to serve as presiding justice. Earlier in her career she served on the Los Angeles Municipal Court and was a state deputy attorney general. Klein took seriously her role as an advocate for and champion of other women; as but one example, Klein testified on behalf of Sandra Day O’Connor at her Senate confirmation hearings. She was also a co-founder and first president of the National Association of Women Judges. 

  1. Susie M. Sharp (1907-1996, shortlisted by Reagan)

Sharp was the first woman to serve as a justice on the North Carolina State Supreme Court as well as the first woman elected chief justice of a state supreme court in the United States. In the late 1920s, she was the only woman in a class of 60 students in the law school at UNC-Chapel Hill. Her name was regularly floated for Supreme Court vacancies, in addition to being formally listed by Reagan. Reflecting about her perpetually shortlisted-status in Anna R. Hayes’ Without Precedent: The Life of Susie Marshall Sharp,” she observed: “I am getting mighty tired of being ‘mentioned’ for the job every time a vacancy occurs. It begins to smack of the old Listerine ad, ‘Oft a bridesmaid-never a bride.’” 

Renee Knake Jefferson and Hannah Brenner Johnson are authors of Shortlisted: Women in the Shadows of the Supreme Court (New York University Press 2020). Jefferson is a professor at the University of Houston Law Center and Johnson is the Vice Dean at California Western School of Law.