The historic nomination of Sonia Sotomayor to the Supreme Court has brought attention to the way America chooses its judges, while also highlighting the strides by women in achieving high positions of judicial authority.
Though Maine was a leader in breaking barriers for women to practice law – admitting Clara Nash as the first woman lawyer in New England and the sixth nationally in 1872 – Maine has not led in placing women in the more influential arm of the law, the judiciary. It took more than a century after Nash for Maine to name its first female judge. She was Harriet Henry, appointed in 1973, only after 43 states had placed women on the bench. (Moreover, the appointment was to the bottom rung of Maine’s judicial ladder, the District Court.)
Not until 1980 was a woman, Jessie Briggs Gunther, named to the state’s Superior Court. Then, only in 1983, did Caroline Glassman become the first female appellate judge in Maine, 61 years after Ohio was the first state to name a woman to its highest court.
Maine’s lagging appointments of women judges was redressed somewhat in 2001, with the appointment of Leigh Ingalls Saufley as chief justice of the Maine Supreme Judicial Court. At that time, fewer than 15 states had ever placed a woman in such a high position. Today, only 20 other states ever have. Many are ironically among the more rural and conservative jurisdictions in the country, including Alabama, Mississippi, Alaska and Utah.
Yet Maine is nevertheless behind, regarding the presence of women in the judicial system. Thirteen of the 61 full-time judges in Maine are women, or 21 percent, below the national average for states. It’s also below the 25 percent figure for federal judges. Only two of nine judges on the Law Court are women, though in 22 other states, women comprise more than 40 percent of the highest court.
But there’s more to diversity than gender or minority group status. Whether Maine, or the nation, has a judiciary that reflects a cross-section of its citizens also depends on life experiences and backgrounds. On that, the federal – and to a lesser extent the Maine high court – have become constricted.
As Adam Liptak of The New York Times recently noted, the U.S. Supreme Court is “in some ways the most insulated and homogeneous in American history.” None of its members have ever been elected to office. It is the first Supreme Court composed exclusively of former federal appeals court judges. The only three justices in U.S. history who never privately practiced law are among the nine members of the current court.
Just 55 years ago, when the U.S. Supreme Court handed down the most popularly acclaimed decision of the last century, Brown v. Board of Education, the court was comprised of judges drawn from a broad spectrum of leadership experience.
They included four former high-ranking executive branch officials, one of whom was chief counsel at the Nuremberg Trials; three former U.S. Senators, one of them the former mayor of Cleveland; a former California governor and a distinguished law school professor. Only one was a judge before joining the court.
The Brown decision and several other integration cases the court decided afterward share one characteristic that sets it apart from today’s judiciary: they were unanimous. That internal infighting was avoided is largely credited to the political skills of Chief Justice Earl Warren. With a background as California’s charismatic governor, Warren had a knack for forging consensus among disparate adversaries.
The Maine Supreme Court of recent decades has followed a pattern similar to that of the current U.S Supreme Court. Today, former Lewiston Mayor and state Sen. Robert Clifford of Lewiston is the lone former legislator on the court; and like its federal counterpart, the Maine Court has issued an increasing number of closely divided and non-unanimous decisions.
Maine governors have, however, become more likely to name appointees without previous judicial experience, though they have shunned those with public office backgrounds. Nine of the 22 appointments to the Maine Supreme Court since 1976 have never been on the bench. This practice was an innovation of Gov. Jim Longley, who in 1976 made University of Maine Law School Dean Edward Godfrey the first Maine high court judge since 1940 to arrive without previously donning a robe.
The upcoming confirmation hearings of Sotomayor will no doubt raise new awareness of these and similar perspectives. May they further inform the mindset of appointing authorities in states like Maine, when they consider the most appropriate criteria in selecting influential jurists.
The author is a Farmington attorney known for his analyses and historical understanding of Maine’s political scene. He can be reached at email@example.com.