What Place Does Motherhood Have in Kagan's Confirmation Debate?

>One of the branches of speculation about Supreme Court nominee Elena Kagan's personal life has centered on her decision not to have children. Peter Beinart first raised the topic on the Daily Beast last month, making a flimsy argument for Obama to tap Diane Wood, who has six children, over Kagan, who has none. Ann Gerhart followed up in the Washington Post

last Sunday with a more developed case for more mothers on the Supreme Court.

Beinart's and Gerhart's arguments for how a second mother on the court (let's not forget Justice Ruth Bader Ginsburg, who has two children, and former Justice Sandra Day O'Connor, who has three) would help break the glass ceiling boil down to two assertions: 1) another mother on the court would better represent the average American woman and would serve as a role model for girls who want to have careers as well as families; and 2) she would add much-needed perspective to the bench, potentially influencing decisions that would make it more feasible for other women to advance to high-level professions.

Let's start with the first assertion. Kagan and Justice Sonia Sotomayor, who is also single and has no children, may not resemble the 80 percent majority of working American women who are mothers. But, as Kate Harding argues at Salon, they do represent the reality faced by women at the very top of the professional ladder:

According to a 2008 Census Bureau report, 27 percent of women aged 40 to 44 who have advanced degrees are not mothers. And among the professional women Hewlett surveyed, only about half of those making more than $100,000 a year had children. So, given that we're talking about highly educated, high-earning women here, the current distribution of women on the Supreme Court -- one mom and one non-mom -- seems to be right on target.

No one would argue that balancing an elite career with marriage and kids is easy. Challenges include the cost and scarcity of quality childcare, the 74 percent likelihood that a high-powered woman's husband also has a full-time job, the fact that working women still perform more domestic and childcare duties than their working spouses, and the persistence of social stigmas against working mothers and stay-at-home fathers -- and that's not even touching on obstacles high-powered mothers face at work.

It is not surprising, then, that nearly 50 percent of women who make over $100,000 a year choose not to have children. Though we cannot know if they wanted children in the first place, Kagan's and Sotomayor's choices are far from unusual for women at their level.

Gerhart argues that "a woman who has juggled it all" might rule more sympathetically on issues that affect working mothers, though she admits that there's no data to suggest this. At the end of her column, she implies that mothers -- those who have "juggled" -- have more meaningful life experience than non-mothers:

Motherhood offers a one-word verifier. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and intimacy, all outside the workplace. Much of the time, it's the opposite of being strategic and assiduously prepared.

Gerhart seems to forget that any woman can become a mother. Motherhood is a one-word verifier for having birthed children, not for having shuffled one's life around for them, raised them in a morally responsible way, or even having cared for them. Suggesting that Elena Kagan's personal life lacks intensity, joys and fears, and intimacy is unfounded and insulting.

And dwelling on Kagan's reputation as being "strategic" and ambitious to a fault reinforces decades of harmful assumptions about women in the workplace. In her book Necessary Dreams: Ambition in Women's Changing Lives, psychiatrist Anna Fels shows that women shy away from the word "ambition" in relation to themselves but embrace it in relation to a potential mate. Fels relates this phenomenon to the fact that society often views ambitious men as strong and successful and ambitious women as aggressive and unfeminine. These stereotypes have played into media reports of both Kagan and Sotomayor, who were pegged as aggressive types with manhandling leadership styles -- Kagan as a "yeller" and Sotomayor as a "bully."

Gerhart's suggestion that Kagan's "strategic" and "assiduous" preparation -- i.e., her focused ambition -- are the "opposite" of the "intensity" and "intimacy" of motherhood is one thing. But her implication that this ambition handicaps Kagan against a woman whose possession of children endows her with some sort of mystical wisdom and therefore judicial advantage is untenable and offensive.

While discussion of Kagan's reproductive choices has no place in the judicial confirmation process, it is valuable insofar as it draws attention to the challenges working women face. In this weekend's New York Times Magazine, Lisa Belkin takes a nuanced approach to this topic, comparing Ginsburg's and O'Connor's paths to the Court to Sotomayor's and Kagan's. Since the two older justices had fewer professional options after they graduated from law school, Belkin argues, they had more time to raise children before ascending to the pinnacles of their careers. Sotomayor and Kagan had more options but also more tradeoffs.

These facts signify how life has changed for the country's most ambitious women -- not whether they will make better or worse justices.