Do Female “Firsts” Still Matter?: Why They Do for Women of Color

This Article argues that diversifying the federal judiciary with more women and men of color, but particularly with more women of color, is essential to moving forward and strengthening this country’s democracy. Specifically, this Article responds to arguments by prominent feminists that having female “firsts” on the bench is not as critical as having the “right” women on the bench—“right” meaning those women who are invested in and supportive of what are traditionally viewed as women’s issues. In so responding, this Article acknowledges the appeal of such arguments regarding judicial service from the “right” women, but contends that, while achieving “firsts” (and “seconds” and more) on the bench for white women may not be as important as it was in the past, it is still crucial for women of color, who are nearly absent from the federal bench. Much like the “firsts” of white female judges all over the nation held important symbolic meaning for the advancement of white women and helped to change societal perception about who is and should be a judge, so, too, will the same “firsts” for women of color. However, for women of color to have a similar impact on society as their white sisters, appointments of women of color to the federal bench must occur in meaningful numbers; they must represent more than mere tokenism, and they should include women of color with a variety of backgrounds and viewpoints. Part I of this Article reflects upon the progress that has been made on the federal bench with respect the progress that has been made on the federal bench with respect to increasing the number of women on the bench as well as the barriers that women have faced and still face on the bench by examining the history of women’s entrance into the federal judiciary. Part II of this Article then examines the limits of that progress, revealing not only that more gender diversity on the bench has not occurred at equal levels for all women, particularly for women of color, during the last forty years. Finally, Part III of this Article argues that increasing women of color’s access to and visibility within the federal judiciary will not only facilitate broader, more well-informed decision making by courts, but also will serve an important symbolic and representative purpose that legitimizes this country’s democracy