July 1, 2004

Justice Ruth Bader Ginsburg weighs in on women's progress in the law profession -- and what kept them out for so long

ITHACA, N.Y. -- Cornell Law School students scored a coup when they persuaded Supreme Court Justice Ruth Bader Ginsburg to comment in print on women's advances in the law profession.

Ginsburg's "Remarks on Women's Progress at the Bar and on the Bench" was just published in Vol. 89 of the Cornell Law Review, a publication produced by law students at Cornell University. It includes, among other things, her lively, candid assessment of the bad old days when the prevailing view among "men of the bench and bar" was that "women and lawyering, no less judging, do not mix." Ginsburg's spunky reply: "It ain't necessarily so."

Ginsburg, who earned an A.B. degree at Cornell in 1954, recalled that law firms were not hiring women when she graduated from Columbia Law School in 1959, tying for first in her class (despite her high standing, she received not one job offer from a law firm and instead accepted a clerkship with a federal district judge in New York).

Nor were women students greeted with open arms by law schools back then, Ginsburg noted. She quoted the president of Harvard during World War II, who was asked how that university's law school was faring and responded: "'[It's] not as bad as we thought. We have 75 students, and we haven't had to admit any women.'" Not much had changed by the Vietnam War era, Ginsburg observed. Harvard's president of that era, also worried about the draft's toll, said: "We shall be left with the blind, the lame and the women."

But "despite the chill air, female lawyers would not be put down," Ginsburg related. Today, women account for more than 50 percent of the entering law school classes, up considerably from the 3 to 4.5 percent from 1947 to 1967, she stated with some pride. They also now make up 30 percent of the U.S. bar, up from 3 percent in the early 1960s, she said. And among law faculty, 23 percent of the full professors with tenure and 32 percent of the overall law faculty are women, a huge jump from 1963 (the year Ginsburg was appointed to Rutgers law school's faculty), when there were fewer than 20 women among tenure-track faculty at accredited U.S. law schools, she noted.

Ginsburg credited former President Jimmy Carter with appointing "a barrier-breaking number of women -- 40 -- to lifetime federal judgeships." Before that, only one woman sat on a federal court of appeals bench and only five served among the nation's 399 district court judges. "Once Carter appointed women to the bench in numbers, there was no turning back," Ginsburg quipped. Ronald Reagan appointed the first woman to the Supreme Court, Sandra Day O'Connor, during his presidency. Bill Clinton more than doubled Carter's record as president, appointing 104 women to federal judgeships. George H.W. Bush appointed 36 women to federal judgeships during his single term as president, and so far President George W. Bush has appointed 33, Ginsburg noted.

Pondering what might have kept women out of the profession for so long before those shifts, Ginsburg reviewed, then dismissed, the range of male arguments in opposition -- from the prediction that women would not put their degrees to full use, to what she called "the 'potty problem'" -- the absence of adequate bathrooms in judges' chambers for women. "Times have indeed changed," she stated. "To mark my 1993 appointment to the Supreme Court, my colleagues ordered the installation of a women's bathroom in the justices' robing room, its size precisely the same as the men's."

Ginsburg urged the United States to continue on the path of racial and ethnic as well as gender inclusivity for future appointments of judges, and to follow the leads of Canada and New Zealand and appoint a woman as chief justice of the U.S. Supreme Court. Quoting former Minnesota Supreme Court Justice Jeanne Coyne's now-famous statement, Ginsburg asserted: "At the end of the day, 'a wise old man and a wise old woman will reach the same decision.'"

"When President Clinton announced that he had nominated then-judge Ginsburg to the bench, he called her 'the Thurgood Marshall of gender equality law,' in recognition of her leadership litigating on behalf of women's rights during the 1970s," said Trevor Morrison, a former law clerk to Ginsburg who is now an assistant professor at Cornell Law School. "She has continued to play a leading role on the Supreme Court in matters of gender equality, but she has also distinguished herself as a wise and important jurist in a variety of other areas, ranging from civil procedure to disability rights, copyright law to the death penalty."

Ginsburg's article was adapted from a talk she gave Oct. 9, 2003, to the National Association of Woman Judges in Washington, D.C. For copies of the article, contact Susan Pado at sgp6@cornell.edu or (607) 255-2287.