Dahlia Lithwick points out that in the absence of very much information, Elena Kagan's life choices have become ways for commentators to project their own anxieties. Currently up: Not having children.
Lithwick writes in Slate,
Since we can't spend these few weeks before the confirmation hearings getting to actually know the nominee-indeed we will find ourselves knowing slightly less about her every day if the White House manages things properly-we instead take the opportunity to get to know ourselves a little better.
One of the topics of discussion is how we feel about women who don't have children and the social conditions around them. There was talk before the nomination about how Obama should nominate a mother to show young women that you can be both professionally successful and have a family. Well, Kagan isn't a mother. Now what?
Well, now there's a study by the Center For Work-Life Policy that shows that 49 percent of women making over $100,000 don't have children by age 40, 15 percent more than men in the same category. (Kagan, by the way, is worth $1.76 million, more than when she was being confirmed as Solicitor general, chiefly due to the rise of the stock market and the sale of her Cambridge, Mass. home.) As Lisa Belkin in this Sunday's Times Magazine describes the study,
The reason high-achieving women don't have children, they concluded, is essentially because women who do have children are more likely to step out of the workplace for some period of time or ratchet back their workloads or otherwise sacrifice their careers. They don't take off for long - an average of just over two years. But the detour comes at a high cost. Those who are out one to two years lose 15 percent of their lifetime salary compared to those who do not. For those out for three or more years, the salary gap is now 46 percent.
Belkin points out an interesting paradox: the first two women on the court, Sandra Day O'Connor and Ruth Bader Ginsberg, had children in an era where there was no script for women's achievement. "Both O'Connor, who is now 80, and Ginsburg, who is 77, graduated from law school in the 1950s. Not much was given to or expected of women then, which created a paradoxical freedom," she writes. Five years apart in age, Sonia Sotomayor and Elena Kagan were pathbreakers, but also existed in a time where women's workplace success was a stated social goal. This also meant that women faced higher expectations that compared their choices to those of men, despite there often being different personal circumstances like taking on the lion's share of childcare.
Or, as Belkin puts it, "Roads had to be chosen. There would be no taking five years off to stay home with your children if you hoped for a seat on the Supreme Court...For men, having a family is an asset when pursuing a demanding career. For women, it is still a complication. So maybe the Kagan nomination sends the "wrong" message, but at the moment, it is also a realistic - and cautionary - one."
(When she says "wrong," she's referring to Peter Beinart's piece arguing that young women need better public role models of mothers mastering work-life balance. Scalia, you'll recall, has nine children, which does not appear to have hampered his professional progress.)
Belkin's piece has already drawn complaints from Times readers, who have complained that take a prescriptive stance about motherhood and work by sounding a note of disappointment that Kagan and women like her didn't have children. Belkin defended herself: "It is not a piece about how being childless is somehow being less," she wrote on the Times' Motherlode blog.
Rather, regardless of whether Elena Kagan and Sonia Sotomayor themselves wanted to have children and made an economically rational choice not to, or whether they simply didn't want to, there are conditions that are limiting other women's choices on having children and a career. As Sharon Lerner wrote in The Nation earlier this month,
Women, in aggregate, are running up against the limits of what they can achieve given the lack of institutional and public support for families...The shift in our trajectory has to be seen as a reflection of a lack of policies that would make the combination of work and caretaking feasible.
It's unfair to impose the whole discussion on Kagan's own life, but it's a discussion that need to be had.
Judging Women [NYT]
But Enough About Me: What Do You Think of Me? [Slate]
One-Third Of Women Fleeing The Workforce [Forbes]
Women, Work, And The Supreme Court
The Gender Equity Bubble Goes Pop [The Nation]
House Democrat Troubled By Kagan's Abortion Stance In 1997 Memo [WP]
Earlier: Does It Matter If A Woman In Public Life Has Kids?
Softball Is For Lesbians And Other Kagan Close Readings
Questioning Justice Scalia's "Alternative Lifestyle"
DISCUSSION
I knew many women from law school who wanted kids. When we'd talk to professors about it, nearly all of the professors stated that you either have kids during your 3L year (when you actually have time and by the time you start work the kid is old enough for day care) or later in your career. This is, of course, assuming the traditional law-school-immediately-after-or-less-than-5-years-after-undergrad route. Thus, you'd see and hear about how a bunch of women were pregnant/giving birth their 3L year.
The problem, at least with law, is that women have to choose between career and family. While scientific advances allow for having kids later in life, the problem is that legal careers, particularly if you're going the large firm route, eat up your life during the "prime" years for having kids. Especially in the beginning of your career, employers are not forgiving of anything which will take your focus off of work.
Thus, it's unlikely that Kagan would have gotten as far as she has if she had kids, but yet now her not having kids is a liability. Essentially, you're damned if you do, damned if you don't.