Nothing More Than Feelings

Conflating judicial empathy with gender is bad for both women and the law.

Empathy is a code word for woman when it comes to judicial nominees

American women are being led down a dangerous road. And no matter how inviting that road may appear, they should leave it less traveled.

As the rhetorical storm gathers, the discussion about President Obama’s next pick for the U.S. Supreme Court becomes ever more bogged down in gendered code words that will only hurt women in the long run. The temptation to argue that the Supreme Court desperately needs a woman because a woman would bring something uniquely—if not genetically—female to the bench has become almost impossible for commentators to resist. But the more we freight the conversation with suggestions that women are fundamentally different, more sensitive, or more compassionate than men, the more likely it is that a woman nominee will be subject to a sexist double standard later.

It now seems almost a given that when the president talks about “empathy,” what he really means is “woman.” In fact, Obama seemed to mean several things when he stated that empathy would be a dominant factor in selecting his nominee to replace Justice David Souter. He hastily signaled his intention to nominate a woman, simply in that five of the six nominees on his shortlist are women. But he also has gone out of his way to explain that empathy means the ability to put oneself in someone else’s shoes. Obama has stated that his ideal justice would consider the lives of the ordinary people who will be affected by the court’s decisions in addition to the formal requirements and logic of the relevant laws.

The feeling that the Roberts Court is in need of more empathetic justices has only ramped up since this week’s decision in AT&T v. Hulteen, which upheld the rights of companies to give less retirement credit for pregnancy absences before 1979 than for medical leave generally. It’s grown tempting to look at the current Supreme Court and attribute its general lack of judicial compassion for victims of all stripes to the underrepresentation of women on the bench. But the very instant we begin to argue that women are different on the bench, we open the door to criticisms that women are unfit to be there.

At the risk of sounding like Chief Justice John Roberts, the notion of difference based on gender merely reinforces more divisions based upon gender. It suggests women should be judged by different criteria and enables attacks upon a woman based on the fact that she either fails to measure up to men or is somehow untrue to her own gender.

Consider, for starters, the code words being used by conservatives to attack prospective women nominees. Some objections to the not-yet-named nominees have intimated that a candidate is or may be gay or has an unusual family life. Such objections imply that no “proper” woman would want to serve on the high court. Consider, also, the questions raised by Jeff Rosen over Judge Sonia Sotomayor’s close relationship with her law clerks (accompanied by the explanation that this is due to the fact that she is divorced and does not have children). Rosen’s article may mark the first time the idea of the law clerk as “extended family member” has been used to marginalize a federal judge. When men treat men as family, it’s honorable. When women do, so it’s pathetic.

In a similar vein, consider the fierce attacks on prospective OLC head Dawn Johnsen, whose confirmation has bogged down over distorted 20-year-old claims that she once equated pregnancy with slavery. Nobody believes for a moment that this has any bearing on her capability to run the Office of Legal Counsel. It’s a thinly disguised effort to suggest that any woman who opposes pregnancy is a monster.

Women may be tempted to support this “women are different” trope and eagerly embrace that canard that women are more empathetic than men. That’s a mistake. It opens the door to criticism that, as a class, women are diverted by stray feelings and relationships and that, as a result, they somehow lack rigor and seriousness. When Justice Ruth Bader Ginsburg argued that her colleagues don’t share her “sensitivities” or, more recently, when she accused them of a failure to understand what it’s like to be a 13-year-old girl who has been subject to a strip-search, she wasn’t implying that women are more able to put themselves in someone else’s shoes than men. Stuart Taylor got it exactly upside down when he wrote earlier this week that “if Ginsburg’s statement means anything, it means that a strip-search might be more traumatic for a 13-year-old girl than for a 13-year-old boy. How would she know that? Unlike her colleagues, she has never been a 13-year-old boy.”

Ginsburg never pretended to have been a 13-year-old boy. She makes no claims to having supernatural powers of empathy toward 13-year-old boys. She merely says that her colleagues have no idea what it is to be a 13-year-old girl, and they should acknowledge that as a deficit in their understanding in cases about them.

Women need to avoid the temptation to claim that they bring some special superjudicial quality of sensitivity to the bench or that it’s somehow natural for women judges to be empathetic while it’s equally natural for men to be dispassionate and reasonable. What women do bring to the courts are diverse views and experiences, and that is more than enough. It’s enough to say that the court lacks women. It’s a mistake to say women will necessarily increase the court’s capacity for empathy.

The women on Obama’s shortlist have distinguished themselves through their accomplishments and their intellects and have not been placed on the list because of their capacity to feel deeply. And when anyone goes down the road of claiming that such deep feeling is an across-the-board female trait, they are subtly prodding a woman nominee into embracing that trait as the essential qualification for becoming a justice. It’s a trap.

The landscape for the politics of Supreme Court appointments is in transition, if not transformation. Just as Obama’s election has prompted questions about whether we have entered an era of post-racial politics, this nomination appears to be ushering in the prospect of a post-gender judiciary. It’s about time. The number and qualifications of the five current women nominees is unprecedented. Justice Sandra Day O’Connor was a relatively unknown appellate court judge before President Reagan nominated her to become the first female justice in 1981. When Ruth Bader Ginsburg was elevated from the D.C. Circuit to the Supreme Court 1993, she was one of only 23 women judges on the federal court of appeals. Today there are more than twice that number.

It has taken nearly three decades since Justice O’Connor’s appointment for this unprecedented moment for American women. It would be a cruel—and unnecessary—irony if the politics of this nomination emphasized not that the women nominees were just as able as their male counterparts but that they were selected precisely because they were kinder, gentler, and nicer than them. Nobody would dispute that we need a more diverse, more representative, and, yes, more empathetic Supreme Court. But let’s not push any one nominee into the sinkhole of becoming the “feelings” justice. Most especially not a woman.