Open Temple

Thoughts from Co-Creator Julie Cantor

The ‘Mominee’: Supreme Expectations and Gender Bias in Amy Coney Barrett’s Confirmation

Marveling over motherhood was a theme, not a footnote of Barrett’s Supreme Court confirmation hearing.

Last week’s Senate Judiciary Committee hearings, like so many before them, went beyond simply vetting a candidate for the U.S. Supreme Court. They offered a window into the culture.

Amid soliloquies about the Affordable Care Act, a tour of American government and constitutional law and explications of an originalism whose inherent countermajoritarian dilemma was left unchallenged, the hearings for Judge Amy Coney Barrett were laced with a disquieting gender bias. That it thrived during proceedings to fill the seat of Justice Ruth Bader Ginsburg, a woman who dedicated her life to eradicating that brand of stereotype, illustrates its insidiousness and bathed the hearings in irony.

At times, they resembled career night. Sen. Ted Cruz, R-Texas, casually asked Barrett for tips on managing children during the lockdown. Sen. John Kennedy, R-Louisiana, was befuddled by the combination of Barrett’s CV and her seven children. “I’m genuinely curious,” he said. “Who does laundry in your house?” And John Cornyn, R-Texas, bet that young women, but not young men, were awestruck by her ability to balance personal with professional.

Fathers’ proceedings contrast sharply. During the hearings for Barrett’s role model, Justice Antonin Scalia, “balance” referred to the philosophical balance of the court, checks and balances, and the balance of powers—not career and kids. And Scalia had nine children. Talk of fatherhood was limited to him introducing his brood. When the chair asked him to do that, Scalia quipped that he might not be able to remember all of their names. Or ages. Surely, that would have been hilarious had Barrett said it.

Barrett was not just a nominee. She was a “mominee.” Marveling over motherhood was a theme, not a footnote. Senators called her a “working mom,” a shining example of “what a mom can do” and “a legal titan who drives a minivan.” Has any dad nominee—or any man, ever—been characterized as a “working dad”? At the Kavanaugh hearings, we learned that the judge coached girls’ basketball. But that detail suggested a man going beyond the call, choosing to daddy in his free time. It was less of an expectation than an extra. And so the paragons of the patriarchy continue to send a clear message: Caring for children and managing a home remain the province of women.

American law is no stranger to the trope. Nearly 150 years ago, the highest courts of both her state and the nation precluded Myra Bradwell from becoming America’s first female lawyer. As one Supreme Court justice explained in a concurrence that two others joined, the very “idea of a woman adopting a distinct and independent career from that of her husband” was “repugnant.” “The paramount destiny and mission of woman,” he said, “are to fulfil [sic] the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things[.]”

Though that view may now seem absurd, the malignancy of gendered expectations remain. It’s why a reporter asked Alexis Ohanian if he babysat his daughter while his wife and her mother, Serena Williams, traversed tennis tournaments. It’s why some men in academia find paternity leave to be hugely productive. And it may be why women have left the workplace in droves during the pandemic.

The legal profession is a serial offender. This bar exam season, professors implored state committees to let examinees bring their own menstrual supplies to test sites. Requests for breastfeeding accommodations were not always granted. And one examinee who was 38 weeks pregnant gave birth during the exam and still finished the test. Probably best, since her state had rejected her request for more bathroom breaks.

Climbing to the upper echelons of any career is a magnificent accomplishment, and raising children during the ascent is a feat. But allowing motherhood to give a near-angelic sheen to a Supreme Court nominee exposes a bias that is both systemic and suffocating. For those who cannot arm themselves with tenure, status or money, who feel relegated to a mommy track or who do not have a live-in relative to help, as Barrett has for the past 17 years, the stereotypes can be particularly stifling.

Because they may not affect the Senate’s vote, the Barrett hearings may have been little more than theatrics. But their tone and tenor offered insight, apparently lost on many, if not all, senators, into the deep rot of gender stereotyping. That matters—because they actually make law and because when senators fail to fawn over fatherhood and ask dads about their laundry, it leaves a societal imprint that parenting is for moms (which, make no mistake, harms dads) and perpetuates the myth that women can and should do it all.

Gender stereotypes are splinters in the social fabric. Their removal would benefit everyone. So start with the Senate. For the next nominee with children, introduce the kids, honor the parenting and leave it there. An acknowledgment, not an undercurrent. Then focus on the work. Otherwise, we feel the weight of biased expectations. And that heavy mantle—one that Ginsburg, with her quest for equal citizenship stature under the Constitution for men and women, worked to lift—leaves us less than free. In fact, it imposes a profound indignity on us all.

Julie Cantor is an attorney and physician who, for over a decade, taught a seminar on reproductive rights at the UCLA School of Law. She is the founder and CEO of Harlen, a brand that reenvisions accessories for women’s work.