Justice Benke--Was She Put on ‘Mommy Track’ on Way to High Court?

Justice Patricia Benke is sitting at her desk, below a smiling, autographed picture of Gov. George Deukmejian, insisting that she is not washed up. It is odd that she feels compelled to do so.

Benke is, after all, something of a Wunderkind. Ever since Deukmejian named her to the Municipal Court bench in mid-1983, Benke has powered through the judicial ranks at a dazzling pace. Today, at age 39, she is the youngest member and only woman on the 4th District Court of Appeal in San Diego.

But last month, Deukmejian bypassed Benke for a seat on the California Supreme Court. The aftermath for her has been downright bewildering.

The trouble started when Justice Marcus Kaufman remarked that Benke--widely viewed as the favorite among four candidates for the prestigious post--may well have lost the job because she refused to uproot her family and move to San Francisco, where the court is based.

Benke, who said she wanted to be “completely honest” with the governor’s appointments staff, also told them she would have trouble spending more than three days a week away from home.

Benke conceded that managing the workload of a state Supreme Court justice while spending just three days a week in the office would have been difficult. But she said she would have “given it my darndest” and would have “patterned myself after the men up there,” two of whom spend shortened workweeks in San Francisco because of long commutes.

The governor’s office will not confirm whether Benke’s unwillingness to relocate was, in fact, the deciding strike against her, and the justice says it’s all a mystery to her. Nonetheless, the possibility that it played a pivotal role has created quite a stir.

Indeed, Kaufman’s observation provoked a rousing debate: Had Benke been relegated to the “Mommy Track”?

“After Justice Kaufman made that comment, people from all over started sending me articles on this ‘mommy track’ thing,” Benke said in a recent interview. “I had no idea the sensitive chord that was struck out there. It just exploded.”

The “mommy track” concept was outlined in January in the Harvard Business Review by veteran feminist Felice Schwartz, who suggested that some working mothers might be willing to sacrifice a degree or career advancement and compensation in exchange for flexible hours. The proposition has since been subject to a bitter assault by those who contend that such a track would institutionalize unequal treatment of women in the workplace.

After Kaufman’s remark, Benke was deluged with requests for interviews, as well as invitations to appear on television talk shows around California. A few colleagues, believing that Benke indeed had been mommy-tracked, grumbled that it was unfair. Women lawyer groups throughout the state also took an interest.

The hubbub over Benke all but stole the spotlight from the true woman of the hour--Court of Appeal Justice Joyce Kennard in Los Angeles, Deukmejian’s choice to succeed retiring Supreme Court Justice John A. Arguelles.

Benke, meanwhile, was beginning to feel uncomfortable.

Initially, she said that if her desire to commute to the high court job had tipped the scales against her, then that in itself was “an absolutely legitimate” reason. Although Benke stands by that statement today, she said she might have “given off the wrong signal”--or led people to believe that she has in fact been mommy-tracked and that it’s just dandy with her.

“I woke up and said, ‘Wait a minute. What’s going on out there in the world? Am I pushing myself into a position of saying, ‘Well, I’m just going to raise my children now and go to plays and bake blueberry muffins?’

“That’s not where I see myself at all,” Benke said emphatically. “I’m 39 years old. I plan on being around for a long time.”

Committed to Husband

Benke calls herself “a fairly traditional mom” and said she is unswervingly committed to her husband, Don, and two young sons. But all of the “mommy track” talk made her uneasy--worried that “people might think I was removing myself from consideration for something else.”

“The way this was being portrayed, I was afraid there was this perception I had cut off my career,” she said. “I can roll with the punches, but I’m certainly not ready to sit back and retire.”

As the news spread, speculation became contagious. Court watchers and feminists--who had tabbed Benke as the favorite because she was the only contender who was on the governor’s list when he last made appointments to the court in 1987--began offering their own, often conflicting opinions.

Some say the governor may have been justifiably leery of appointing another justice whose home base was outside the Bay Area.

Arguelles, who stepped down after just two years on the court, says the burden of commuting and being separated from his family in Orange County was substantial.

Both Chief Justice Malcolm M. Lucas and Justice David N. Eagleson live in Southern California and spend a shortened workweek in San Francisco, typically arriving at the court Monday morning and returning home Thursday night. Some scholars have warned that the strain of such commutes, coupled with the court’s heavy workload, could contribute to early “burnout.”

Judge’s Assessment

“It is a very onerous job, and many of those who have tried commuting have found it does not work for them personally,” said San Diego Superior Court Judge Judith McConnell, immediate past president of the National Assn. of Women Judges. “Clearly, the governor wants to appoint people who are going to stay there for a significant length of time.”

Given that goal, and given the governor’s knowledge that commuters have complained of “an unhappy marriage between work and home life,” Benke’s decision not to relocate “may have been the telling mark against her,” McConnell said.

“None of my contacts with the governor’s office have indicated he’s prejudiced against mothers,” McConnell said. “I’m unwilling to say there was a double standard at work. I haven’t seen it in other appointments.”

Others have reacted angrily to the suggestion that Benke’s desire to keep her residence in San Diego might have stacked the odds against her.

The president of California Women Lawyers, Los Angeles attorney Janice Kamenir-Reznik, said it would be “an inappropriate sort of invasion into someone’s personal life to mandate how close they live to their job if they are in fact qualified for the job.”

“The only question is, can they be at work and are they capable of conducting the work they need to conduct,” Kamenir-Reznik said. “That’s the only thing relevant.”

Kamenir-Reznik stressed that she has no evidence other than “scuttlebutt” to suggest that the governor chose Kennard because she was willing to move to San Francisco and Benke was not. And she lauded Kennard, 47, as “an excellent choice.”

Nonetheless, Kamenir-Reznik and others in feminist legal circlesargue that if Lucas and Eagleson live outside the Bay Area and make long treks to work, Benke could too.

After learning that Deukmejian had passed her over in favor of Kennard, Benke spent a while pondering the episode alone in the quiet of her sixth-floor chambers.

“It was interesting because the first time through, I was a long shot . . . and this time there was this expectation out there (that I would be selected),” Benke said. “I had to find a way emotionally to let go of it, to get rid of the trappings.”

It took a few days. There was a leisurely fishing trip with a son, lots of second-guessing, a ton of “what ifs.”

Would the job have been hers if she had persuaded her husband, a production supervisor at KPBS-TV, to abandon their sprawling, custom-built home near San Diego State University for a new life in the Bay Area?

“I don’t know,” Benke said, “I just don’t know.”

Was it wrong to tell the governor’s office that, if appointed, she would be reluctant to spend more than three days a week away from her husband and sons, Michael, 7, and Pete, 5?

“I felt I had to be honest,” Benke said. “If I were a different person, I could say, ‘No problem. I’ll leave my kids with the housekeeper.’ But that’s not me. . . . I just couldn’t do that.”

Did that place her at a competitive disadvantage from the outset?

No one said it was a liability, “but I think I knew from the beginning it was,” Benke said. “If you’ve got somebody who says, ‘My bags are packed and if the call comes, I’m gone. I’ll give 110%.’ And you’ve got another person who says, ‘I’d love the job. I’ll do my best. But I need to tell you, this is my limitation.’

“What do you do? Your highest priority has to be what’s good for the court.”

Finally, there’s one other possibility to confront: “Maybe they just liked Joyce better than me.”

Benke is upbeat about her career, her life. It is time, she said, to “really dig in here and concentrate,” to develop a writing style and a judicial philosophy, to make a mark on the Court of Appeal.

As for the future, Benke admits that she still has her eye on a state Supreme Court job, which she calls “an incredible opportunity” and something that “someone who loves the law just doesn’t pass up.”

“Will it happen? Maybe someday. I don’t know. It’s one of those things that really is in the laps of the gods.”