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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

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Kagan and the Magic Number Three

More important than her religious background (Jewish) her Ivy League Credentials (Harvard) her progressive, liberal or conservative Democrat political leanings, is the prospect that Kagan's addition to the Supreme Court will result in the magic number of three women on the United States Supreme Court. 

Why is three the magic number?

Recent studies have shown that it takes three women corporate board members to avoid the deliterious effects of group think on corporate decision making - my own supposition on the question "why three" being that one or two women easily risk falling into male group-think.  This isn't male bashing, by the way. I assume three men on an otherwise all woman's board would have a similar performance enhancing effect.  

Because group-think is the enemy of negotiated resolutions on every scale, here's a list of its symptoms to help you diagnose whether your law firm; litigation team; in-house legal department; corporate board; non-profit; political party; or, even your extended family might be the victim of group think.

  1. Illusion of invulnerability –Creates excessive optimism that encourages taking extreme risks.
  2. Collective rationalization – Members discount warnings and do not reconsider their assumptions.
  3. Belief in inherent morality – Members believe in the rightness of their cause and therefore ignore the ethical or moral consequences of their decisions.
  4. Stereotyped views of out-groups – Negative views of “enemy” make effective responses to conflict seem unnecessary.
  5. Direct pressure on dissenters – Members are under pressure not to express arguments against any of the group’s views.
  6. Self-censorship – Doubts and deviations from the perceived group consensus are not expressed.
  7. Illusion of unanimity – The majority view and judgments are assumed to be unanimous.
  8. Self-appointed ‘mindguards’ – Members protect the group and the leader from information that is problematic or contradictory to the group’s cohesiveness, view, and/or decisions.

When the above symptoms exist in a group that is trying to make a decision, there is a reasonable chance that groupthink will happen, although it is not necessarily so.  Groupthink occurs when groups are highly cohesive and when they are under considerable pressure to make a quality decision.  When pressures for unanimity seem overwhelming, members are less motivated to realistically appraise the alternative courses of action available to them.  These group pressures lead to carelessness and irrational thinking since groups experiencing groupthink fail to consider all alternatives and seek to maintain unanimity.  Decisions shaped by groupthink have low probability of achieving successful outcomes.

From What is Groupthink  at the Psychologists for Social Responsibility site.

Comments (8)

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Joe Markowitz - May 11, 2010 6:52 PM

I'm happy to see that women are not being discriminated against on the judiciary, but with respect to Elena Kagan, I don't think it is any more important that she is female than it is that she is short. Imagine writing about the virtues of having a critical mass of short people on the Supreme Court. It would sound absurd. I hope we are getting closer to the day when it will sound absurd to care about the number of females or Jews or Latinos or New Yorkers (I heard someone on the radio mention that we will soon have four out of five of the boroughs represented on the Court, lacking only Staten Island), or people who attended Harvard or short people or people with red hair or any other superficial characteristic, on the Supreme Court.

So I guess that means I don't think there is a female or male way of interpreting the Constitution and we probably can agree to disagree about that.

Vickie Pynchon - May 11, 2010 8:25 PM


I would suggest to you that being a woman is not a "superficial characteristic." Nor is being a man. Nor is being Black or Latino or Jewish or Catholic.

I'm suggesting (with back-up research) that diversity helps to prevent groupthink whether that group is comprised of women or men or whites or Latinos or Ivys or blondes or redheads.

Homogeneity is not good for sound decision making. Heterogeneity is good for decision-making. And having 9 old white men on the Supreme Court Bench for 90% of the Court's history has indeed made a great deal of difference in the way the Constitution has been interpreted.

We all bring unique points of view and ways of thinking to legal decisions - values, attitudes, biases - implicit or explicit, no matter how hard we try to resist them (take a few of the implicit association tests at Project Implicit if you doubt that).

We all do a better job resisting our implicit biases when we acknowledge that we have them.

I grew up in a time - not that many years ago - when the idea of a woman on the Supreme Court was unthinkable. It is a matter of pride and an occasion of celebration for women of my generation to see formerly white male institutions of economic and political power become more diverse.

It's irritating when a member of the group of people who formerly possessed the exclusive power to control those institutions complains that the formerly dispossessed are happy to finally be included.

Joe Markowitz - May 11, 2010 9:21 PM

I told you we were going to disagree about this. Sure we all have unique points of view and values and biases. But I'm not sure they have very much to do with our skin color or nationality or our sex. I guess I see life in more political terms. There is diversity on the Supreme Court when different political views are represented, but not necessarily when different ethnic groups or genders are represented. You could have a lot of diverse points of view even if all nine justices were old white men as we did for most of our history. But you could also put together a pretty homogeneous court even if all the members looked very different in terms of nationalities and ages and religions and sexual orientations, etc. There would be more diversity of viewpoints if Sandra Day O'Connor were still one of the female judges still on the Court, but less so with three liberal female New Yorkers who all went to Harvard or Yale Law School (although Sotomayor is from the Bronx, Ginsburg from Brooklyn, and Kagan is a Manhattanite--does that constitute diversity?) In fact, if you want to talk about groupthink, having three liberal New York women on the Court could cause their views to be discounted somewhat by the men on the Court, because their views are going to be much more similar to each other's than the views of Roberts Scalia Alito Kennedy and Thomas. So if we really want more diversity and more resistance to groupthink on the Court, we need to appoint some more liberal men, and some conservative women. Maybe it is Breyer we have to worry about now as the real loner on the Court! So I guess I just don't really care very much how many women or blacks or Jews are on the Court. And I would never advocate putting a Clarence Thomas on the Court because he is black or an Elena Kagan because she is female, or Jewish, or a New Yorker, or short.

What I think is more interesting about the Kagan nomination is that President Obama seems to see her as a kind of mediator on the Court. Want to comment on that?


Victoria pynchon - May 11, 2010 10:23 PM

You miss the point entirely. And it's tiresome.

Joe Markowitz - May 11, 2010 11:47 PM

Sorry Vickie, I was getting so carried away with my argument I didn't realize I was just being tiresome. I don't want to rain on your parade. In fact, the first thing I said was that I am happy to see women being given equal consideration for judgeships. So we should probably both be happy that in the debate about Kagan's nomination so far, no one is complaining about there being too many women on the Court, or even raising the fact that Kagan is female as being any kind of issue. That is progress, no?

Vickie Pynchon - May 12, 2010 11:58 AM


Having encountered adverse effects of a gender bias I didn't want to believe existed in the 21st century is incredibly PERSONALLY frustrating to me - especially because I was a highly successful commercial litigator before I entered ADR practice.

MORE frustrating than the existence of gender bias has been the near-universal denial of its existence by professional men in a position to hire me on the type of cases I spent my professional career litigating.

Since I began talking to men about gender bias, these have been the POSITIVE responses:

1. "I hire women when one of the clients is a woman"
2. "I hire women when I have a client I believe needs someone to be compassionate."
3. "I actually think women are better with people - they're really good with cases involving a lot of emotion." (this is the "Jews are better with money" and "Asians are better at math" response).

These have been the typical NEGATIVE responses.

1. "I don't think my male clients will relate well to a woman mediator"
2. "My clients need a man to exert pressure on them; I don't think a woman can do that as successfully."
3. "There aren't any qualified women mediators" (this from a woman litigator)


"I don't think of gender when I hire a mediator but come to think of it, I never HAVE hired a woman."


"I'm entitled to choose a mediator I think will be most persuasive and if that means I need someone who can talk sports, I'll be hiring a man" (suggesting, of course, that someone like my husband can talk sports - he can't - and someone like the former managing partner of my last law firm cannot (she can).

When attorneys and their clients hire a male mediator, they do not think about gender unless one of the clients, or perhaps opposing counsel, is female, in which case they consider hiring a woman (for this special occasion).

Were I am employment mediator, I'd be working more steadily because there are LOTS of women clients in employment mediation and lots of women lawyers (I've called it a "pink ghetto"). Were I a family law attorney, I'd also be working more. I am neither.

I spent my working life litigating multi-party sophisticated complex commercial litigation representing Fortune 500 companies against AmLaw 200 law firms.

I did that because I prefer business-to-business litigation and complex legal and factual issues. I also chose this area of practice because I do not like "dealing with a lot of emotion." I like dealing with a little bit of emotion and commercial litigation is just the right amount of emotion for me.

I did not experience gender bias after my third or fourth year of legal practice partially because the law firm model made it necessary for clients to accept the services of women associates because they formed nearly 50% of the associate class beginning in the mid-eighties.

Early in my career, male clients demanded that women attorneys not be assigned to their cases. My law firm had a zero-gender-bias tolerance policy. If the clients didn't want a woman lawyer on their matter, they didn't want my law firm representing them.

It's difficult enough to be experiencing the adverse effects of implicit gender bias for the first time since the late 70s and early 80's. To be repeatedly told that gender bias simply doesn't exist when history, sociology and the lived experience of your women colleagues is to the contrary, is more frustrating and maddening that the existence of the barrier itself.

The good news for all of us (because diversity is an economic good) is that implicit bias is relatively easy to address by raising it to consciousness. Refusing to raise it to consciousness causes it to persist.

As a mediator, I should be exploring with you the reasons why you persistently drop by to complain about my posts on diversity. I should know that my discussion of gender bias troubles you for some reason that is quite personal to you.

We should have coffee or a meal together to share our life stories so we can stop pitting our opinions against one another, which is boring, frankly, and does not increase our understanding of each others hopes, dreams, aspirations and frustrations, which is what really matters to the improvement of relations in the human community.



Joe Markowitz - May 12, 2010 12:54 PM

You cut me to the quick yesterday with your curt response, but now I'm basking in the glow of all this attention. I'd love to have lunch and discuss this further, and I have no doubt you could find something in my life story that would "explain" why I have some trouble with the whole concept of diversity. I also have some trouble with the idea (if that is what you are trying to suggest) that every philosophical difference between people can be explained by their personal histories or psychological make-up. I think people can also try to discuss ideas on a purely intellectual level. In fact, in some ways I think it is unfair to try to discount or explain away someone's argument because of their personal situation or background or ethnicity or sex or class or whatever. I'd usually rather deal with the merits of an argument.

Vickie Pynchon - May 12, 2010 1:28 PM

I apologize for being curt.

I don't discount or "explain away" opinions based upon the lives of the people who hold them. I do, however, more deeply understand people's positions and opinions when I know something about how they originally came by them.

There is no "pure[] intellectual level." I wouldn't waste my time writing about diversity and you wouldn't waste your time responding to it if we were not both motivated by something emotional.

We were BOTH born on third base. I should be more grateful. I should also be directing my attention to those still in the dugout. It's the only way to true happiness: being of service.


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