Justice Ginsburg’s Tribute to Judicial “Way Pavers”

by Angela N. Johnson

This article was taken from Ginsburg’s address at the Annual Conference of the National Association of Women Judges in Atlanta, Georgia on October 7, 1995.  In her address, Ginsburg discusses three “way pavers” who made women’s inclusion in the judiciary more than just a rare curiosity.  Judges Florence Ellinwood Allen, Burnita Shelton Matthews, and Shirley Mount Hufstedler – those among the first women to be seated on the federal bench, are discussed.

Florence Allen was a woman of many firsts, but most notably, the first woman to serve on an Article III federal appeals court.  She attended the University of Chicago Law School in 1909 (the only woman in a class of about 100) but later transferred to New York University. It was noted her classmates complimented “her masculine mind-on thinking like a man” (Ginsburg and Brill, Women in the Federal Judiciary: Three Way Pavers and the Exhilarating Change President Carter Wrought 1995, 282). It is interesting that women were complimented for “thinking like a man” – as though women and men would categorically think differentely.  In 1919 Allen became the first female to work as an assistant prosecutor in the United States. Her ability “to do a man’s job” was noted by her boss (the head proseuctor for Cuyahoga County, Ohio.  Allen was later elected as a judge on the Cuyahoga County Court of Common Pleas and was the first woman in the nation elected to sit on a court of general jurisdiction Id. at 282. Her fellow judges on the bench thought she should work exclusively on domestic cases.  Allen responded by indicating that as an unmarried women, “she lacked sufficient expertise in the domestic domain” Id. at 282.  In 1922, Judge Allen ran for a slot on the Ohio Supreme Court.  Women of Ohio organized her campaign and she successfully became the first woman to serve on any state’s highest court; serving for eleven years before she achieved her most ultimate accolade.  In 1934 President Roosevelt appointed her to the U.S. Court of Appeals for the Sixth Circuit – making her the first woman to serve on an Article III federal appeals court, where “she served for a quarter of a century becoming by virtue of seniority the Circuit’s Chief Judge in her very last year on the court, 1958-1959” Id. at 283. Most interestingly, “President Truman, according to political strategist India Edwards, felt positively about nominating Allen to the Supreme Court, but he was discouraged by the negative reaction of the Chief Justice and the associate justices the Chief consulted.  The justices feared that a woman’s presence would inhibit heir conference deliberations where, with shirt collars open and shoes off, they decided the legal issues of the day” Id. at 283. It would take anoter fifteen years after Judge Allen’s 1934 appointment for another way-paver to emerge.

In 1949 President Harry Truman appointed Burnita Shelton Matthews to the United States District Court for the District of Columbia – making Burnita the first female Article III federal trial court judge in the nation.  Id. at 284. This of course came at a time when women faced hostility in hiring practices, including judicial clerkships.  Judge Matthews “showed her confidence in women lawyers by hiring only women as law clerks.  (Her colleagues, in the main, would hire no women, so she attracted clerks of a different, enriching life experience and extraordinary talent)” Id. at 285. Judge Matthews served nearly twenty years before taking senior status, continuing to serve on court of appeals panels.

The third judge addressed is Shirley Mount Hufstedler, whose “judicial career began with her appointment to the Los Angeles County Superior Court in 1961; next, the California Court of Appeal in 1966; then her appointment, by President Johnson in 1968 to the United States Court of Appeals for the Ninth Circuit” Id. at 286. Judge Hufstedler later served as the first secretary to the Department of Education.  According to Justice Ginsburg, “she was considered by many to be a top candidate (not just a prime female candidate) for Supreme Court Appointment).  According to her friend Warren Christopher, despite the prospect of higher office, she never tailored her opinions to please the home crowd, or the White House crowd” Id. at 286. In 1981, Judge Hufstedler returned to private life and practice.

Justice Ginsburg notes that, “Despite the stellar examples set by Judges Florence Allen, Burnita Matthews, and Shirley Hufstedler, it was not until the election and administration of Jimmy Carter that women gained appointment to the federal bench in more than token numbers.  President Carter changed the face of the federal bench.  Presidents who followed after him would be measured by his standard” Id. at 287.  President Carter’s appointments mark an important change in history – previous Presidents Ford and Nixon each appointed only one woman to the federal judiciary.  To appoint more women meant to change the way presidents seek candidates.  Looking outside the “old boys’ network,” President Carter encouraged Senators to establish nominating committees that would evaluate a broad range of candidates for district court judgeships.  For potential appeals court nominees, Carter himself established separate merit-based nominating commissions.  With more open nominating procedures, increasing numbers of both women and minorities gained serious consideration for the first time, and Carter ushered in a new and lasting vision of the judiciary” Id. at 288. Justice Ginsburg notes that President Clinton’s appointees have achieved higher ABA ratings on average than the less diverse appointees of the three previous administrations – a sign that broadening the eligibility pool does not mean appointing less-qualified candidates.  President Clinton appointed more women to the federal judiciary than the previous three Presidents combined.

I enjoyed reading Justice Ginsburg’s address which pays tribute to her judicial predecessors.  The address, given in 1995, does not reflect the continued progress women have made in the judiciary.  During President Clinton’s two terms in office, he appointed 378 judges; 111 (29%) were women.  According to the Federal Judicial Center website, (accessed March 17, 2011) President Obama has made 75 nominations for Article III judgeships that have been confirmed by the United States Senate (45 additional appointees are awaiting Senate confirmation). This figure includes two justices to the Supreme Court of the United States (both appointees are women), seventeen judges to the United States Courts of Appeals (7 (41%) are women), and fifty-six judges to United States District Courts (26 (46%) are women.  In all, thirty-five of the seventy-seven (45%) confirmed appointments are of women judges.

Source Citation: Ginsburg, Ruth Bader, and Laura W. Brill. “Women in the Federal Judiciary: Three Way Pavers and the Exhilarating Change President Carter Wrought.” Fordham Law ReviewLXIV, no. 2 (November 1995): 281-290.

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