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Latest from Lithwick:
Over at Slate, Dahlia Lithwick argues that President Bush should nominate a woman to the Supreme Court because it will make people less willing to criticize Senator Feinstein. Or something like that.
SimonD (www):
I think another commenter here at Volokh had it right last week. If Justice Ginsburg "would not like to be the only woman on the court", there is an incredibly easy way she can remedy that problem.
9.30.2005 12:58am
Splunge (mail):
Ms. Lithwick displays her youth, and not unfortunately to advantage: her naivete prevents her from realizing how this sort of special pleading presents a subtext to older and more experienced readers that suggests a woman is unable to make it to the Supreme Court on her own merits as a jurist and scholar. The harm is the greater because Lithwick is female (hence she "ought to know"), and because her feminist credentials imply she'd be the last to believe women are not up to the job. In short, if even Dahlia Lithwick believes women need special favors to get on the Supreme Court, or can only be considered for appointment for reasons irrelevant to their legal acumen, how on Earth can the rest of us hairy unwashed chauvinists believe otherwise?

I expect many a highly competent woman lawyer or judge on reading this youthful folly will grind her teeth. With "friends" like Lithwick, what ambitious woman jurist needs enemies?
9.30.2005 2:01am
Cheburashka (mail):
Slate's coverage of legal issues - and frankly, of nearly everything - has declined precipitously since the W Post took over.
9.30.2005 2:05am
Splunge (mail):
No, I honestly think it was Kinsley moving to the LAT. I mean, his politics are boringly unoriginal, but he's an inspired writer and a damn good editor. But what could they do? When Slate first started up, I imagine he was intrigued by the novel format. But in the end, I doubt they could pay him the dough he's worth, and the Times can (plus the Times' circulation free-fall poses another interesting challenge, ha ha).
9.30.2005 2:16am
Alan K. Henderson (mail) (www):
If he does nominate a woman, I doubt that she'll be one that will warm the cockles of Lithwick's heart.

I certainly hope not.
9.30.2005 3:09am
sammler (mail) (www):
I was struck by Ms. Lithwick's argument that the way to combat stereotypes is not by acting to make them less accurate, but rather by somehow supporting and bolstering the stereotyped group. The idea that Ms. Feinstein could have avoided derision by the simple expedient of not being risible seems never to have occurred to her.
9.30.2005 6:14am
Medis:
Lithwick's way of making the point is pretty hamfisted, but I think she does have a point. As I understand it, the argument is that people will tend to criticize women in power AS women until there are enough women in power that it is not worthy to comment on their gender. So she is actually aiming at a more or less gender-blind outcome, but suggesting that to get there you first have to correct the current gender imbalance.

Personally, even if the premise is correct (more women in positions of power means less criticism of women as women), I'm not sure that is a sufficient reason to accelerate the process of achieving gender balance (I say accelerate because I assume that under current conditions--as I understand it women are making up half or more of law school graduates--we will eventually get a similar balance on the Court).

Still, given the nature of the Court, "eventually" can be an awfully long time. By my calculations it will tend to lag up to 50 years or more in terms of the underlying conditions that led to its composition (in that the most senior Justices will have gone to law school that long ago). So if you are sufficiently impatient to correct the effects generated by that time-lag in combination with prior social conditions, then you do get an argument for taking gender (and perhaps ethnicity) into consideration.
9.30.2005 8:08am
MJ (mail):
The reason Fein, Steyn, and Will went after Feinstein is not because she is a woman: It was because she gave THE dopiest explanation for why she couldn't find it in herself to vote for CJ Roberts.

Lithwick's sarcastic emoting resembles logic only as the mist resembles the rain. Wholly absent in her clarion call for "Load[ing] up the courts and Congress with enough women" is 1) any argument or even acknowledgment that the women she has in mind for the courts would be as qualified/respected as a John Roberts or any mention of the fact that women (though likely the wrong kind of women in Lithwick's opinion) have been and are finalists for both of the vaccancies. 2) that the decision makers who would "load" up the congress with women are the American voters, who stand perfectly capable of doing just that provided women candidates can convince them that that is where they should place their vote. 3) It ain't the 1950's no more. Half of all law students are women. Women run plenty of states and huge governmental agencies and corporations. Any woman in government, business, or the legal field who feels like they are the "sole representative of [their] gender" has to be either delusional or impossibly self-important.

Lithwick's column exemplifies the liberal mantra that if there is a perceived problem, the answer is to declare victim-hood and to throw ______________ at it. (Insert "money" or "diversity" here).
9.30.2005 9:19am
WB:
I'll be much happier reading Lithwick's stuff once the Supreme Court starts hearing cases. She's much more thoughtful, and wittier when she talks about actual cases and mixes discussion of the merits with jokes about the justices and the people arguing the cases. When she's at her best, she's one of the best court commentators out there.

Her commentary during the hearings has not shown her at her best.
9.30.2005 9:50am
junglegymn (mail):
I can't comment directly on Lithwick's argument because Slate is blocked by my local server as "pornographic." I'll just note that the comment by Medis about the fifty percent participation of women in law school eventually balancing the bench overlooks the fact that women do less well in law school than men. This may be a result of the Summers syndrome -- at the top tail of the talent distribution as represented by the LSAT male dominance has continued despite an increase in the female proportion of test takers over the last twenty years. The difference in graduation outcomes was reported by Lani Guinier for Penn a decade ago, was evident in an analysis of proportions with Order of the Coif in ten top law schools over the last quarter century, and was confirmed in a systematic study at Harvard Law School just last year.
9.30.2005 10:02am
DF:
I notice that Lithwick criticizes only men for criticizing Ginsburg and Feinstein, despite the fact that conservative women had criticized them as well. Obviously this means that we need more male opinion columnists so that they will not be so unfairly singled out.
9.30.2005 10:05am
Adam (mail):
This is unreasonable - think about what Lithwick is saying. Ginsburg and O'Connor, despite having huge political differences and life experiences, both feel it is important to have a second woman on the court. Shouldn't we at least try to think about why? This is not just to have someone with a woman's experience when adjudicating cases involving women, though that is very important too. It's because having a single woman on the court will inevitably result in "it's because she's a woman!" type comments whenever you disagree with her. The fact that a woman was the fifth vote in a majority just shouldn't be an issue. In Canada, there are four female Supreme Court Justices, of vastly different political valences, and the issue of gender in decisionmaking doesn't exist. There is a lot of sexism in the law schools and in the law firms and integrating women into the Supreme Court beyond a tokenistic level is in my view very important...
9.30.2005 10:49am
snit:
I can't comment directly on Lithwick's argument because Slate is blocked by my local server as "pornographic."

I think this is the first time I've ever heard of those filters getting something right.
9.30.2005 11:12am
Attila (Pillage Idiot) (mail) (www):
From the Slate article:

Ginsburg also included in her remarks a story about her former colleague—William H. Rehnquist—that was less than flattering. According to the Winston-Salem Journal: "When [Ginsburg] argued a case before the Supreme Court in 1978 to include women in jury duty, even Rehnquist made an off-color joke about women . … While Ginsburg was arguing about women having equal rights with men, Rehnquist asked her, 'So you can't settle for Susan B. Anthony's face on the silver dollar?' "

Maybe I'm missing something, but how is the silver-dollar joke off-color? Or was the off-color joke edited out in that ellipsis?
9.30.2005 11:27am
Hans Bader (mail):
I respectfully disagree with Adam when he says that "In Canada, there are four female Supreme Court justices, of vastly different political valences, and the issue of gender in decisionmaking doesn't exist."

All the Canadian justices are dogmatically left-wing, at least by the standards of the United States and most other western countries. Canadian jurisprudence is almost beyond parody.

As David Frum observes, the Canadian courts are dogmatically feminist. If "the issue of gender in decisionmaking doesn't exist," it's because the judiciary is so monolothically left-wing that no dissent exists, and because male and female Canadian judges alike are frequently biased against male litigants in family law cases.

Ask the Brampton, Ontario man who was forced to pay alimony to the abusive wife who stuck a knife into his heart, attempting to kill him (she very nearly succeeded), on the grounds that alimony decisions must not take into account fault, because that supposedly disadvantages women.

Canadian courts are grossly biased towards ex-wives in divorce-related custody decisions. While men today play a greater role in raising children than in the 1970's, Canadian courts are actually less likely to award them custody than in the past.

Ask the people criminally prosecuted for criticizing provincial courts for abuses of power. Canada is much less protective of free speech and the right to criticize government abuses of power than the United States (or even, in practice, the U.K. or Australia, even though the U.K. and Australia lack a written constitutional guarantee of free speech, while Canada has a Charter of Rights and Freedoms, which the Canadian courts have gutted).

Canadian courts give laughably short sentences for hardcore criminals. They let violent criminals off with little prison time, and let people who embezzle millions off with suspended sentences.

And yet, in various provinces, special domestic violence courts, imbued with dogmatic feminism, treat husbands falsely accused of domestic violence as presumptively guilty, summarily kicking them out of their homes and denying them procedural safeguards accorded every thug and thief. The double standard is massive.

By the way, I'm not Canadian, I'm not divorced, and I have no kids. So my critique of Canadian family law isn't a reflection of any self-interest on my part.
9.30.2005 11:29am
Thorley Winston (mail) (www):
Lithwick's way of making the point is pretty hamfisted, but I think she does have a point. As I understand it, the argument is that people will tend to criticize women in power AS women until there are enough women in power that it is not worthy to comment on their gender. So she is actually aiming at a more or less gender-blind outcome, but suggesting that to get there you first have to correct the current gender imbalance.


Tell you what, if Justices Stephens, Bryer, and Souter agree to step down now, I'll agree to lobby the Bush administration to nominate three women to take their spots on the Supreme Court.
9.30.2005 12:10pm
Thorley Winston (mail) (www):
This is unreasonable - think about what Lithwick is saying. Ginsburg and O'Connor, despite having huge political differences and life experiences, both feel it is important to have a second woman on the court. Shouldn't we at least try to think about why?


Not to those of us who prefer the "unreasonable" standard of trying to pick the best possible jurist without regard to their race or gender.

This is not just to have someone with a woman's experience when adjudicating cases involving women, though that is very important too.


Why?

It's because having a single woman on the court will inevitably result in "it's because she's a woman!" type comments whenever you disagree with her.


Really, please provide us with examples of people making those comments about Justice O'Connor when she was the sole female on the Court.

The fact that a woman was the fifth vote in a majority just shouldn't be an issue.


No one else is making it one.

In Canada, there are four female Supreme Court Justices, of vastly different political valences, and the issue of gender in decisionmaking doesn't exist.


As others have pointed out, in Canada the "vastly different political valences" range all the way from "center-left" to "far left." Needless to say those of us of a different political persuasion aren't likely to be persuaded by the suggestion that we should follow Canada's example.

There is a lot of sexism in the law schools


Women make up over half of all law students. The only "sexism in the law schools," I witnessed was from gender feminist professors (typically of the baby boom generation) who felt free to engage in the occasional bit of male-bashing during their lectures.
9.30.2005 12:21pm
Rhadamanthus (mail):
"I was wrong"

Brve person for making this statement. Sadly she has replaced her original views with an idea that I can only categorise as "utter rubbish". I agree that ideally the court should be constructed with one person from every section of society- including aliens from Mars if there happen to be any on Earth- apply to Bush to berepresented on the court.

However, this is not an ideal scenario as there are only 9 places on the court so why don;t we fill them with 9 great judges regardless of age, sex, secual orientation, gender or religion?
9.30.2005 12:38pm
Thorley Winston (mail) (www):
However, this is not an ideal scenario as there are only 9 places on the court so why don;t we fill them with 9 great judges regardless of age, sex, secual orientation, gender or religion?


I think we need to acknowledge that what Lithwick and others are really upset about is the likely ideological persuasion of the judges rather than their "age, gender, religion, etc."). They're hiding behind the "gender" and "race" cards because they don't want to admit that what they really want is a Court that shares their particular ideological persuasion like everyone else to give themselves an air of nobility for being concerned about "diversity" and making the Court "look like America" or some rubbish rather than admit that what they really want are leftist jurists like Ginsburg (or worse).

As I said before (TIC), if Justices Stephens, Souter, and Bryer were to step down today, I would be more than happy to personally lobby the Bush administration to appoint three qualified women to the Court in their place including one black and one Hispanic female justice. This would double the number of women who have ever been on the Court at once but somehow I doubt Lithwick and others decrying the lack of females on the Court would be happy with three female originalist jurists.
9.30.2005 12:54pm
Medis:
Thorley,

You should click through to what Lithwick has said on this issue before (via the link above). She'd more or less agree with you that what matters to her is the views of the person, and that it is silly and ineffective to take race or gender as a proxy for those views.
9.30.2005 3:03pm
markm (mail):
Somehow I doubt that these advocates of "diversity" on the court would welcome the nomination of Janice Brown to replace O'Connor - even though this would add a black and a woman, and I have the impression that it would make the Court more ideologically diverse, Brown being somewhat more libertarian than any Justice in recent history.
9.30.2005 4:01pm
Medis:
markm,

Again, Lithwick more or less said exactly that, and so for that matter did RBG.
10.1.2005 10:01am