New at Reason

Julian Sanchez | July 12, 2005

Was Sandra Day O'Connor enough of a feminist? The very best kind, says Cathy Young.

Comments

|7.12.05 @ 12:44PM|#

Not having seen the Lithwick posts that are cited, I get a strong feeling that they are being distorted. Now, off to see if I was right...

|7.12.05 @ 12:57PM|#

hmmmm....not sure how I would score that. Probably better for Cathy Young than I would have suspected. Lithwick does kind of display those sentiments, although in context it comes across very differently. And, it is all a part of a literary device Lithwick is using to turn the tables and compliment O'Connor later.
I would say that my snap judgement that I was being taken for a ride was too haste, and that Cathy Yound actually does a fair enough job of representing Lithwick. Of course, the link is provided, and it is recommended that people follow it.
On the points of jurisprudence, I think it really is unimportant who was right:
"Lithwick, rather insultingly, sees O'Connor's compromises as manifestations of her "inner softie" (a woman after all!). It's more likely that her pragmatism had a lot to do with a reluctance to interfere with established practices that she believed served society well: Her decision to uphold race-based affirmative action was influenced, in large part, by briefs from corporate and military leaders."

They seem to be two sides of the same coin.

|7.12.05 @ 1:03PM|#

Lithwick-style feminists are interesting; they criticize men for "thinking with their dicks" and criticize women for NOT "thinking with their vaginas."

Does she even realize the irony that in Victorian times, the idea that women were more "caring" and "emotional" and "supportive" than men was one of the excuses used to keep us legally inferior? I mean, you can't expect us soft-hearted, delicate creatures to go out and compete in the big bad world, can you?

|7.12.05 @ 1:18PM|#

Un-PC joke:

Why don't women have brains? Because they don't have a dick to store them in.

|7.12.05 @ 1:43PM|#

Young nails Lithwick in her article with the line "The Victorians' ideal woman was 'the angel of the house'; Lithwick's ideal woman is the angel of the court."

|7.12.05 @ 1:56PM|#

Jennifer,

Caring, emotional, and supportive are no longer virtues that are considered secondary, but are now sought-after virtues by bosses, voters, clients, and others in the public sphere.

Whatever the accuracy of attributing those traits more to women than men, such an attribution no longer carries the connotation of "second-rate" that it carried in the Victorian era.

|7.12.05 @ 2:05PM|#

Joe-
Maybe emotionalism is a fine quality, but not in a judge. And the only thing a judge needs to care about and support is the Constitution.

|7.12.05 @ 2:07PM|#

Jennifer,

"Emotionalism" is inherently bad for a judge. On the other hand "emotional intelligence" or "EQ" could well be an asset. This goes to both individual characteristics, as well as how society defines those traits.

|7.12.05 @ 2:21PM|#

hear, hear, joe!

|7.12.05 @ 2:33PM|#

A definition I found on the Web: What is Emotional Intelligence? It is the capacity for recognizing our own feelings and those of others, for motivating ourselves, and for managing emotions well in ourselves and in our relationships. - Daniel Goleman, 1998

Certainly a judge should be in control of his/her emotions on the bench, and be capable of divorcing those emotions from judicial decisions made. But what does the rest have to do with being a judge? Decisions are supposed to be made on the merits of the law, not on what emotions people have in regards to them.

Besides, I've noticed that whenever Bad Feminists praise Emotionalism, they usually mean that decisions made from emotion are better than decisions made from cold logic.

|7.12.05 @ 2:40PM|#

Although I think Jennifer has the better arguments in this thread, I feel sorry for joe as the plucky, outnumbered underdog here, so I'll declare him the winner of this debate.

|7.12.05 @ 2:42PM|#

Just off the top of my head, Jennifer, people with higher EQs are better at recognizing liars - a skill that some would say can come in handy for a judge.

Nice tautology there, BTW. If they're Bad Feminists, they are, by definition, those who make the worst version of the feminist argument. I'm not sure where sorting into such categories gets you, though.

|7.12.05 @ 2:43PM|#

Stevo,

The judges shouldn't pick a winner based on the first round's rope a dope.

|7.12.05 @ 2:46PM|#

On the other hand "emotional intelligence" or "EQ" could well be an asset.

Law is rhetoric, and emotion enjoys no place therein.

|7.12.05 @ 2:50PM|#

True, Joe, but Lithwick's not talking about emotional intelligence. Lessee--she criticized O'Connor for being "curt and unsentimental;" does this mean female judges should be sentimental windbags? She wants female judges to have lots of "empathy." Great idea--don't decide a case on its merits; decide it based on how YOU'D feel if you were the defendant (or plaintiff, whichever one is female, I suppose). And she wants O'Connor to have "feminine compassion?" As opposed to what--masculine compassion? Compassion is compassion--no dicks or tits involved.

If women really were like what Lithwick wants us to be, I would dedicate my life to rescinding the amendment allowing us sentimental, unthinking, overly emotional do-it-for-the-children inferior beings to vote.

|7.12.05 @ 2:50PM|#

people with higher EQs are better at recognizing liars - a skill that some would say can come in handy for a judge.

That is a judgement call. To accuse an advocate of lying is to accuse them of perjury and professional misconduct. That is a charge that requires more support than the mere impressions of some "emotionally tuned" overblown lawyer in a black robe.

|7.12.05 @ 2:55PM|#

How can ANYBODY claim to be a feminist and simultaneously claim that in matters of inteligence, logic and way-to-perform-a-non-physical-job, women and men should be held to different standards?

|7.12.05 @ 2:58PM|#

Damn, the straws really flying today!

Let's see: "she criticized O'Connor for being "curt and unsentimental;" does this mean female judges should be sentimental windbags?" Yes, Jennifer, it means judges should be sentimental windbags. That's exactly what it means.

"Great idea--don't decide a case on its merits; decide it based on how YOU'D feel if you were the defendant (or plaintiff, whichever one is female, I suppose)." Again, that's exactly what that means - that the judge should be motivated by pity for a defendant.

Haven't you ever noticed, Jennifer, that the most goony manly men also tend to be those that are most easily swayed by trifling emotional manipulations like flag waving, appeals to wounded pride, and chivalry? Could it be that someone who is savvier about how the human heart works might have a leg up when it comes to seeing through such things?

Judges are often called upon to make, er, judgement calls about inherently subjective things like "pain and suffering" or "exteme emotional disturbance." Your lawbooks and critical reasoning skills are greatly enhanced by having emotional savvy to draw on.

"To accuse an advocate of lying is to accuse them of perjury and professional misconduct." Pleae, rst, there are far more situations that require a judge to temper her perceptions with a "read" of a lawyer or other party's truthfulness than filing a complaint with the BBO.

|7.12.05 @ 3:03PM|#

Criticize my post all you wish, Joe, but if "curt and unsentimental" is bad, then what CAN one reasonably assume is good? How else should I interpret the statement "judges should be empathetic?"

As for awards for "pain and suffering" and the like, aren't those decided by juries, not Supreme Court justices?

I agree with you about those idiot flag-waving manly men; emotionalism is a loathsome trait regardless of the traitholder's genitalia. I just wish a self-described feminist wouldn't claim it's the exclusive province of us women.

|7.12.05 @ 3:09PM|#

The reason "feminist" has such a vile connotation (despite the fact that I consider myself one):

Male: "I think, therefore I am."

Female: "I feel, therefore I am better."

|7.12.05 @ 3:11PM|#

'Criticize my post all you wish, Joe, but if "curt and unsentimental" is bad, then what CAN one reasonably assume is good? How else should I interpret the statement "judges should be empathetic?"'

How about interpretting a criticism of a fault as a call to remedy that fault, rather than as an endoresment of an extreme version of the opposite fault? It's a little silly to assume that criticising someone for being "curt and unsenimental" is anything but a preference for a little more thoughtfulness and courtesy.

"As for awards for "pain and suffering" and the like, aren't those decided by juries, not Supreme Court justices?" Depends on the case. Sometimes a judge hears the case, sometimes the judge can overturn, reduce, or increase a judgement, and sometimes an appellate judge reviews a jury's decision.

But my point is broader than that specific example - if adjucating cases before the court were exclusively formulaic, it would be done by computers. A human touch, an ability to read people and understand their situaiton, is a boon for a judge.

|7.12.05 @ 3:14PM|#

"Sentiment" and "courtesy" are very different things, Joe. Elevating feelings over facts and emotion over reason is NOT the way to improve anything, let alone society over the law.

|7.12.05 @ 3:14PM|#

Emotion is an intrinsic animal response that is arrived at absent rational consideration. A valid legal decision is comprised wholly of rational consideration. Emotion is subjective and weak.

|7.12.05 @ 3:20PM|#

Nobody, nobody, nobody, N-O-B-O-D-Y is proposing that judges "Elevati[e] feelings over facts and emotion over reason," Jennifer. Nobody. Look back over the thread.

Why you are determined to read that into the discussion is beyond my comprehension. You are arguing like those meatheads who dismiss the idea that the events in Abu Ghraib harm out efforts, on the grounds that "we can't stop terrorism with hugs." That's what I mean by "straw man."

Does the "s" stand for Spock?

Reasoning consists both of propositions, and conclusions drawn from them. The propositions that one incorporates into one's reasoning are better if one's understanding of the world is better. People with a high EQ have one more tool to draw on when understanding the world.

|7.12.05 @ 3:22PM|#

Consider "Brown vs. Board of Eduction." Would the outcome have been better law if the judges had failed to understand, or had dismissed the significance of, the emotional, psychological, and social impacts of segregation on the students in question?

|7.12.05 @ 3:24PM|#

The ability to read the emotions of others and detect liars is arguably useful for a trial court judge but is almost certainly useless at the appellate level.

|7.12.05 @ 3:26PM|#

Joe, I see your point. I just don't think that it is very substantial. Sorry. Give me a Mr. (or Ms.) Spock for the Supreme court each time.

It seems to me that segregation and all the other various instantiations of racism throughout our history had an awful lot to do with how racists felt about black people.

|7.12.05 @ 3:27PM|#

I'm not saying emotional intelligence is a bad thing, Joe. And Lithwick isn't saying it's a good thing; I saw no mention of it at all. What *I* am saying is that it is stupid to judge a woman judge NOT on her judicial merits, but on her judicial merits in light of stereotypically feminine traits.

So far as I'm concerned, anyone who criticizes a judge for being "unsentimental" loses all right to be listened to; I would no more take Lithwick seriously than I would take seriously a man who criticized O'Connor for not being pretty, not wearing pantyhose, or having an unfeminine haircut.

|7.12.05 @ 3:30PM|#

"It seems to me that segregation and all the other various instantiations of racism throughout our history had an awful lot to do with how racists felt about black people.'

It seems to me that the end of segregation and Jim Crow had an awful lot to do with how Americans felt about black people and their circumstances, too. Shall we call that one a draw?

|7.12.05 @ 3:33PM|#

Jennifer, I feel your pain. Sort of like when I feel Al Sharpton's pain as he explains how welfare reformers' statements about family composition, attitudes towards work, and cultural development remind him of stereotypes that white people have applied to black people. There is certainly a rich history there, and of course it pays to be wary when someone starts approaching that territory.

But it is downright irrational to dismiss an argument because of what other aguments it reminds you of.

|7.12.05 @ 3:35PM|#

I'm not dismissing Lithwick because she reminds me of anything else, Joe; I'm dismissing her on her own merits. Seriously--criticizing a judge for being "unsentimental?" Decrying her lack of "feminine compassion?" Whiskey tango foxtrot is THAT all about?

|7.12.05 @ 3:59PM|#

I acknowledge the equal weight of the two statements. Hell, that was my point :)

People's emotions are finicky. That's why the Supreme court is so important. Right?

I'd like to call the ghost of Socrates as my first witness...

|7.12.05 @ 4:00PM|#

'Seriously--criticizing a judge for being "unsentimental?"'

People have been criticizing "hanging judges" for as long as there have been courts. Why is this so novel to you?

'Decrying her lack of "feminine compassion?"' So you're of the anti-Larry Summers faction, who gets riled by the argument that there are differences between the male and female brain?

|7.12.05 @ 4:02PM|#

Certainly there are (for the most part) differences between the minds of males and females, Joe. But the idea that these differences should be deciding factors in how people are judged is vile.

|7.12.05 @ 4:05PM|#

Or, to rephrase my last post: don't criticize a woman for what she says or does unless you would apply the same criticism to a man. And vice-versa.

|7.12.05 @ 4:13PM|#

By the way, when the Supreme Court finally struck down the segregation laws, did they do it by using logic and reason to determine that such laws violating parts of the Constitution (like equal-protection), or did they do it from the empathetic idea "If I were black, I wouldn't want to be segregated?" When it struck down the anti-sodomy laws, was it from reason or empathy? When they strike down death-penalty cases, is it because they use reason and logic to decide that the condemned had an unfair trial, or is it from a sentimental view of the defendant?

|7.12.05 @ 4:22PM|#

Forgive what will be a quadruple post unless somebody else posts first, but for those who say empathy is an important trait in a judge, I'd like to know WHO the judge should empathize with? The runaway slave or his owner who doesn't want to lose money? The woman who wants an abortion or the woman who feels abortion is murder and should be outlawed? The gangsta who says he's been victimized by a cop or the cop who doesn't want his career trashed?

Or do you adopt a blanket decision: I will empathize with all defendants; I will empathize with all plaintiffs? I imagine the rule would be to choose empathy on a case-by-case basis, but if you do that, why the hell do you need laws in the first place?

|7.12.05 @ 5:46PM|#

I'd say empathy in a judge is important insofar as it might help him or her ask questions more effectively and get more complete information from others involved in a case, but I think the whole emotional intellegence riff is a tangent. Evaluating O'Connor on her lack of so-called feminine virtues as Lithwick does is just silly. I can't imagine such an article being written about a male justice.

|7.12.05 @ 6:03PM|#

More Lithwick on O'Connor, from Slate:

"At the risk of waxing personal for a moment, I offer one thought about what O'Connor means to me: Perhaps it's because I write this while officially out on maternity leave�rocking my infant son in his bouncy chair under my desk as I type�but to me, O'Connor truly models the feminist dream. She managed to "have it all" simply by being braver than everyone else�trusting that she could drop out of the workforce to raise three boys and come back to a good job�and by showing a kind of relentless focus that most women of our generation have not yet mastered. It seems to me that when she was a mother, she was fully a mother; when she was a politician, she was fully a politician; and when she was a jurist, she was fully a jurist. And now she's most likely keeping her promise to spend more time with her family. Good for her. She has earned it."

|7.12.05 @ 6:28PM|#

And when she was curt and unsentimental, she was fully curt and unsentimental!

|7.12.05 @ 6:29PM|#

Bravo. Bra -vo.

|7.12.05 @ 7:02PM|#

Something occurred to me, in regard to Joe's red herring about emotional intelligence: if Lithwick wrote to complain about O'Connor's lack of certain traits because Lithwick believes ALL judges should have them--well, I might disagree with Lithwick but I could still respect her. What I can NOT respect is the idea that O'Connor should possess certain traits not because she's a JUDGE, but because she's a WOMAN.

Fuck. That. And I say this as someone who has a LOT of stereotypically feminine traits, and would actually do pretty damned well (maybe even better than I am now) in a society where women were expected, nay REQUIRED, to possess and portray stereotypically feminine traits.

|7.12.05 @ 7:11PM|#

Jennifer says:

The reason "feminist" has such a vile connotation (despite the fact that I consider myself one):

Male: "I think, therefore I am."

Female: "I feel, therefore I am better."

joe replies:

I was unaware, Jennifer, that proclaiming people who adhere to your ideology to be superior thinkers and human beings was the exclusive territory of feminists.

Did she claim somewhere that it was? For someone who has named himself Great Vanquisher of the Use of Men of Straw, you seem more than happy to burn a few yourself. Well, I guess that's easier than actually addressing what she said.

'Seriously--criticizing a judge for being "unsentimental?"'

People have been criticizing "hanging judges" for as long as there have been courts. Why is this so novel to you?

So someone is either "unsentimental" or "a hanging judge?" I'm confused here -- didn't you criticize Jennifer by saying, "How about interpretting a criticism of a fault as a call to remedy that fault, rather than as an endoresment of an extreme version of the opposite fault?" I guess that suggestion doesn't apply to you.

|7.13.05 @ 12:59AM|#

The rest of us just want to know if joe and Jennifer are going to kiss and make up, or will it be ten paces, turn and fire?

|7.13.05 @ 1:21AM|#

Based on the way their names are spelled,

joe
Jennifer

I must conclude that Jennifer is big and tall while joe is short and small. Therefore, in any pistol duel, the advantage goes to joe because he will be harder to hit.

|7.13.05 @ 1:23AM|#

If they duel, I'll bet anyone $100 and a beer that joe wins.

|7.13.05 @ 2:12AM|#

Let's see: "she criticized O'Connor for being "curt and unsentimental;" does this mean female judges should be sentimental windbags?" Yes, Jennifer, it means judges should be sentimental windbags. That's exactly what it means.

Which is why her speech was so stunning: it was curt and unsentimental and - if recollection serves - it concluded with a lament about how annoying it is to receive late-night telephone calls from death row petitioners with only moments left before their executions. I left the hall furious, wondering how a woman could be so heartless.


As you can see joe, she is specifically critical of a *woman* being so heartless. While she might similarly criticize Scalia or Thomas, she *clearly* had higher hopes for O'Connor just because she was a woman. Clear double standard. I don't see a straw man, I put my $100 and a beer on Jennifer. Wait, that doesn't sound right...

|7.13.05 @ 7:53AM|#

Even if I did kiss Joe it wouldn't help, because I'd do it in a very curt and unsentimental way.

|7.13.05 @ 9:20AM|#

"Even if I did kiss Joe it wouldn't help, because I'd do it in a very curt and unsentimental way."

ooooh,

She might could hurt Joe more with an unsentimental kiss than with a bullet.

I am going to put my $100 bucks on Jen in a gunfight. My perhaps mistaken thinking is this. Joe is a liberal, therefore probably anti gun. Jen is a libertarian, therefore friendly to guns. She might own a gun, or have a friend who does. Therefore she might have some knowledge of how to use one.

(Pssst Jen, being that I have $100 on you, if you don't have any knowlede of guns get with me, I'll teach you in a half hour to be better shots than 90% of the posters here)

|7.13.05 @ 11:52AM|#

NO FAIR kwias!!!

|7.13.05 @ 1:10PM|#

"By the way, when the Supreme Court finally struck down the segregation laws, did they do it by using logic and reason to determine that such laws violating parts of the Constitution (like equal-protection), or did they do it from the empathetic idea "If I were black, I wouldn't want to be segregated?" When it struck down the anti-sodomy laws, was it from reason or empathy?"

In both cases, both played a role. Empathy and understanding the human condition played a role in the courts' ability to see through the logically-sound arguments of "separate but equal" and "straight men aren't allowed to sodomize other men, either."

In Brown in particular, the psychic and social harm done by the policy is discussed at some length.

|7.13.05 @ 1:15PM|#

To all, I did not endorse everything in Lithwick's column. I just took exception to Jennifer's argument that compassion and emotional understanding were necessarily contrary to beign a good judge.

"Forgive what will be a quadruple post unless somebody else posts first, but for those who say empathy is an important trait in a judge, I'd like to know WHO the judge should empathize with? The runaway slave or his owner who doesn't want to lose money? The woman who wants an abortion or the woman who feels abortion is murder and should be outlawed? The gangsta who says he's been victimized by a cop or the cop who doesn't want his career trashed?" The judge should use his capacity for compassion and emotional understanding to inform the judgements he makes about all of the above.

|7.13.05 @ 1:16PM|#

Oh, man, I ain't shootin' no chicks!

|7.13.05 @ 1:21PM|#

"Oh, man, I ain't shootin' no chicks!"

As long as Jen has no similar problems shooting dudes, I have already won.

You might as well already pay up!!!

|7.13.05 @ 1:45PM|#

OK, regardless of the merits of joe's and Jennifer's arguments, I think we should just declare Jennifer the winner -- because it will be good for downtrodden women to see one of their number triumph.

|7.13.05 @ 2:14PM|#

kwais,

This doesn't mean joe won't kiss Jen, and Jen has only said she wouldn't do it with feeling.

They have not agreed to duel. Bet's off man.

|7.13.05 @ 3:02PM|#

I never made any such agreements; all I said was that if I kissed Joe it would be a curt and unsentimental kiss. And God help him if he tries to give me any goddamned flowers. What a huge waste of money. I'm serious. Who decided that the way to a woman's heart was to give her a bunch of dying plants, anyway?

|7.13.05 @ 3:09PM|#

Just to clarify: it's not that I'm averse to the gift of dead plant matter, it's just that I want plants that'll give me a buzz when I smoke 'em.