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One further—and purely speculative—thought about the conversation between Emily, Bonnie, and E.J. about the need for a woman justice to replace David Souter. And this one is based on conversations I have had over the years. I have heard at least a few powerful women lawyers who could be in the running for this type of gig say without reservation that they would never, under any circumstances, put themselves through the nasty, personal, and hate-filled confirmation process that has become almost unavoidable. (I keep thinking of Justice Alito’s wife bolting from her husband’s hearing in tears a few years back). One woman judge bluntly told me she could never do that to her family, no matter what the prize. Others have said they just wouldn’t want to go through something that was almost designed to make them look ridiculous or awful for all time. Just reflecting on the abuse that’s recently been heaped on Dawn Johnsen—Obama’s pick to head the Office of Legal Counsel—I can see why. I’m not quite prepared to assert here that women have thinner skin than men when it comes to being called the Spawn of the Devil on national television. I’m sure many of the women on the so-called short list have endured far worse. But it’s a good time to recall the rumors that there were several highly qualified women ahead of Harriet Miers on President Bush’s short list, who all evidently took themselves out of the running for some of these reasons.
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One further—and purely speculative—thought about the conversation between Emily, Bonnie, and E.J. about the need for a woman justice to replace David Souter. And this one is based on conversations I have had over the years. I have heard at least a few powerful women lawyers who could be in the running for this type of gig say without reservation that they would never, under any circumstances, put themselves through the nasty, personal, and hate-filled confirmation process that has become almost unavoidable. (I keep thinking of Justice Alito’s wife bolting from her husband’s hearing in tears a few years back). One woman judge bluntly told me she could never do that to her family, no matter what the prize. Others have said they just wouldn’t want to go through something that was almost designed to make them look ridiculous or awful for all time. Just reflecting on the abuse that’s recently been heaped on Dawn Johnsen—Obama’s pick to head the Office of Legal Counsel—I can see why. I’m not quite prepared to assert here that women have thinner skin than men when it comes to being called the Spawn of the Devil on national television. I’m sure many of the women on the so-called short list have endured far worse. But it’s a good time to recall the rumors that there were several highly qualified women ahead of Harriet Miers on President Bush’s short list, who all evidently took themselves out of the running for some of these reasons.
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It hardly seems possible that, more than five years after Janet Jackson and Justin Timberlake’s “wardrobe malfunction” at the Super Bowl, the highest court in the land is still deliberating the question of how outraged we as a nation should be by that long-ago glimpse of pop-singer flesh. Today, the Supreme Court ordered a federal appeals court to consider reinstating the $550,000 FCC fine on CBS, which was thrown out last year on the grounds that the boob flash (which lasted nine-sixteenths of a second) was protected by CBS’ rule allowing for “fleeting” instances of obscenity.
To the extent that I ever had an opinion on this by now absurdly musty controversy, I would have been on CBS’s side. It’s the nature of live television coverage that things (Bono's F-bombs, Janet's nips) slip out, and the constant threat of fines could have a dampening effect on networks' freedom to broadcast live, amounting to a kind of pre-emptive censorship. But given the drop in the bucket that a half-million dollar represents in the context of the bank bailout, what if we as a nation just pick up the tab for CBS’s fine so we never have to talk about this again? Here’s a litmus-test tip for President Obama as he begins his SCOTUS deliberations: Man or woman, “contructionist” or “activist,” just please, in the name of God, appoint a Supreme Court justice who does not give a prawn about Janet Jackson’s right nipple.
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It hardly seems possible that, more than five years after Janet Jackson and Justin Timberlake’s “wardrobe malfunction” at the Super Bowl, the highest court in the land is still deliberating the question of how outraged we as a nation should be by that long-ago glimpse of pop-singer flesh. Today, the Supreme Court ordered a federal appeals court to consider reinstating the $550,000 FCC fine on CBS, which was thrown out last year on the grounds that the boob flash (which lasted nine-sixteenths of a second) was protected by CBS’ rule allowing for “fleeting” instances of obscenity.
To the extent that I ever had an opinion on this by now absurdly musty controversy, I would have been on CBS’s side. It’s the nature of live television coverage that things (Bono's F-bombs, Janet's nips) slip out, and the constant threat of fines could have a dampening effect on networks' freedom to broadcast live, amounting to a kind of pre-emptive censorship. But given the drop in the bucket that a half-million dollar represents in the context of the bank bailout, what if we as a nation just pick up the tab for CBS’s fine so we never have to talk about this again? Here’s a litmus-test tip for President Obama as he begins his SCOTUS deliberations: Man or woman, “contructionist” or “activist,” just please, in the name of God, appoint a Supreme Court justice who does not give a prawn about Janet Jackson’s right nipple.
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Jeff Rosen's bashing this week of Judge Sonia Sotomayor of the Second Circuit—who is on all the Supreme Court short lists—is making the rounds. Glenn Greenwald calls Rosen's attack a "smear" and points out his problematic reliance on anonymous sources. I'm just starting to gather string on the judges on the short list, so I called Jamal Greene, a Columbia law professor who clerked for Judge Guido Calabresi, one of Sotomayor's colleagues. Here's his rebuttal of Rosen's unnamed critics:
I was always impressed with her memos. I thought that they always said exactly what was on my mind. One particular opinion that stands out: Hayden v. Pataki. Not sure that's the opinion she'd want to talk about most, because what she wrote was quite short, but I thought it was also quite brilliant. The case was about whether felon disenfranchisement"—taking away the vote from prisoners—"fell under section 2 of the Voting Rights Act, as a form of vote dilution or vote denial. Her short dissent said: This is a really easy case, and only becomes difficult if you try to make it that way. There were all these long opinions flying back and forth—Judge Cabranes in the majority, and Judge Parker in dissent, and Guido too. She had a short one that got it right.
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Rebecca Traister has already expertly parsed Jeff Rosen's hasty, uncareful slamming of Judge Sonia Sotomayor for what it shows about how we—actually, white male legal pundits—talk about women who are up for huge jobs like the Supreme Court. Dahlia and Hanna dissect the put-down and the code words, too. At the National Journal, Stuart Taylor Jr., who also jumped on the anti-Sotomayor bandwagon, has had the grace to jump off, writing in an editor's note that he regrets being "unfair" to the Second Circuit judge, in particular by "citing anonymous claims that she has been 'masquerading as a moderate,' which I do not know to be true."
But it's too late to sheathe the claws. They've already produced this dreadful, not funny David Letterman parody of Sotomayor as a screechy gavel-banger. Is that Spanish she's speaking? But of course. The Washington Post Wednesday quoted "a lawyer who has been consulted on the Obama selection process" saying that Sotomayor may have to overcome a perception that she "doesn't play well with others." Today, a news story in the paper makes nice. Let's just hope that anonymous supposedly-consulted lawyer is wrong and the Obama administration doesn't care about the swirl of perceptions and is doing it's own reporting. There is an abundance of excellent women candidates, as Dahlia and Chris Wilson and I have been discovering as we begin to read up and write about them. Picking one of them isn't affirmative action, no matter what the white guys writing the columns say. (And no, Ben Wittes, I'm not crying for the excellent white men who aren't at the top of the list this time, and it's not just Democrats who take identity politics into account when they make Supreme Court selections—hello, Clarence Thomas, not to mention Harriet Miers.)
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Dahlia, Justice Ruth Bader Ginsburg would surely agree with you that it's long past time to rub out the equation that a woman justice equals a second-rate one. To make the case for why she needs a female colleague (or colleagues), she took the unusual step of talking about a case that's just been argued and not yet decided—the one involving the strip search of 13-year-old Savanna Redding. You wrote vividly about Ginsburg's apparent distress at the clueless reactions of some of the men on the court at oral argument. This week Ginsburg said as much to Joan Biskupic of USA Today. "They have never been a 13-year-old girl," the justice said. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
Ginsburg also remembered being ignored by male lawyers at meetings in the 1960s and 1970s, only to have a man present repeat her point, and get a response. And incredibly, she feels the same way even now: "It can happen even in the conferences in the court. When I will say something—and I don't think I'm a confused speaker—and it isn't until somebody else says it that everyone will focus on the point." Biskupic writes: "It was a revealing observation from a justice who generally praises her male colleagues, some of whom are close friends." No kidding.
Ginsburg also directly addressed the question of what women bring to the bench, as women:
"You know the line that Sandra [Day O'Connor] and I keep repeating … that 'at the end of the day, a wise old man and a wise old woman reach the same judgment'? But there are perceptions that we have because we are women. It's a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive."
The differences between male and female justices, she said, are "seldom in the outcome." But then, she added, "it is sometimes in the outcome."
PS: Ann Althouse (U. Wisconsin law prof, blogger extraordinaire) discusses diversity on the court.
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More on Rosen attacking Sotomayor: It's not just women judges who get blasted for being tough. It's also tough male judges—including judges whose intellectual and personal qualifications for the Supreme Court it's hard to imagine anyone questioning. As a commenter at the New Republic points out, it's worth comparing the complaints about Sotomayor's temperament and demeanor to what lawyers have to say about a couple of male lions of the bench, Frank Easterbrook and Richard Posner, both of the 7th Circuit. From the entry on Easterbrook in the Almanac of the Federal Judiciary:
Lawyers were critical in their assessment of Easterbrook's courtroom demeanor. "His courtroom demeanor is not good for lawyers." "He creates a discourteous environment in the courtroom. He likes to circle his kill and gives a nod and a wink to his clerk when he catches his prey." ... "He berates lawyers mercilessly if that is the direction he is going. If he is with you, be quiet, and if he opposes your position watch out and get ready to be embarrassed in open court. He berates lawyers. It is almost a game to him." "If you are on the right side, it is fun. If you're on the wrong side, it is hell. The rules of civility for the circuit have not reined him in." ... He bullies weak lawyers and enjoys it." "His attitude is the worst. He berates lawyers and shows off to his clerks how powerful and smart he is."
From the Almanac entry on Posner:
Lawyers said Posner can be tough on lawyers. "His demeanor is not very good. He talks a lot more than he should. He wants all to know how smart he is." "He can talk down to lawyers and give them an extremely hard time." ... "His agenda seems to be to make lawyers uncomfortable, and he succeeds. ... "He often crosses over the line in his demeaning treatment of lawyers." "He can be very condescending." "His demeanor is simple to describe—take no prisoners. If I never see him again, it will be O.K."
Some of the lawyers were more appreciative. Just like some of them had nicer things to say about Sotomayor. But tough judges are hard on lawyers, and hard for them. There's plenty more to be said about how the judges could handle themselves better. But at the moment, my question is this: If Posner was on a Supreme Court short list, would Rosen or anyone else write The Case Against Posner because some lawyers think he's a big meanie? That one's also hard to imagine.
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More on Rosen attacking Sotomayor: It's not just women judges who get blasted for being tough. It's also tough male judges—including judges whose intellectual and personal qualifications for the Supreme Court it's hard to imagine anyone questioning. As a commenter at the New Republic points out, it's worth comparing the complaints about Sotomayor's temperament and demeanor to what lawyers have to say about a couple of male lions of the bench, Frank Easterbrook and Richard Posner, both of the 7th Circuit. From the entry on Easterbrook in the Almanac of the Federal Judiciary:
Lawyers were critical in their assessment of Easterbrook's courtroom demeanor. "His courtroom demeanor is not good for lawyers." "He creates a discourteous environment in the courtroom. He likes to circle his kill and gives a nod and a wink to his clerk when he catches his prey." ... "He berates lawyers mercilessly if that is the direction he is going. If he is with you, be quiet, and if he opposes your position watch out and get ready to be embarrassed in open court. He berates lawyers. It is almost a game to him." "If you are on the right side, it is fun. If you're on the wrong side, it is hell. The rules of civility for the circuit have not reined him in." ... He bullies weak lawyers and enjoys it." "His attitude is the worst. He berates lawyers and shows off to his clerks how powerful and smart he is."
From the Almanac entry on Posner:
Lawyers said Posner can be tough on lawyers. "His demeanor is not very good. He talks a lot more than he should. He wants all to know how smart he is." "He can talk down to lawyers and give them an extremely hard time." ... "His agenda seems to be to make lawyers uncomfortable, and he succeeds. ... "He often crosses over the line in his demeaning treatment of lawyers." "He can be very condescending." "His demeanor is simple to describe—take no prisoners. If I never see him again, it will be O.K."
Some of the lawyers were more appreciative. Just like some of them had nicer things to say about Sotomayor. But tough judges are hard on lawyers, and hard for them. There's plenty more to be said about how the judges could handle themselves better. But at the moment, my question is this: If Posner was on a Supreme Court short list, would Rosen or anyone else write The Case Against Posner because some lawyers think he's a big meanie? That one's also hard to imagine.
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The Washington Post is calling attention to the friendship between U.S. Supreme Court Justice Clarence Thomas and Georgia Supreme Court Justice Leah Ward Sears, who is on some short-lists for the open Supreme Court seat. It's an odd-couple alliance that seems to cast doubt on Sears by bringing up old bitterness over Thomas' appointment. As the Post piece puts it, "The old lions of the civil rights movement in Georgia and elsewhere have never accepted Thomas as heir to the late Justice Thurgood Marshall's seat and legacy." But it seems to me that Sears' friendship with Thomas would be an asset on the court. It's hard to imagine them voting together often, based on her liberal track record, but hey, if she can pull him into a few coalitions—or just out of his calicified social isolation—she'd get big points.
As a Supreme Court nominee, Sears has another problem, though. She won election as Georgia's chief justice in 2004 after a slugfest of an election in which many Democrats, lawyers and otherwise, forked over money and time for her. But now Sears plans to leave the state's high court in June. She'd like to be the president of a college, or do pro bono legal work for kids, she says. Worthy goals. But by departing in the middle of her term, Sears will give Republican Gov. Sonny Perdue the chance to move Georgia's high court to the right. The current split is basically 4 to 3, conservative to liberal, which gives the liberal wing the chance to win by picking off one vote. Perdue's appointee will presumably change the balance to 5 to 2. That rightward shift could stay in place for years, to the intense frustration of some of the people who worked for Sears's election. "It is very disappointing," said Stephen Bright, president and senior counsel of the Southern Center for Human Rights. "It appears she doesn't have time to be a judge." Not the best advertisement for becoming a Supreme Court justice.
Photograph of Clarence Thomas by Chip Somodevilla/Getty Images
