Judging potential judges

By Legal Eagle

Justice Souter of the US Supreme Court is about to retire, and President Obama must appoint a successor. As soon as Souter J announced his retiremet, the speculation started:

President Barack Obama pledged Friday to name a Supreme Court justice who combines “empathy and understanding” with an impeccable legal background to succeed liberal David Souter, whose abrupt retirement announcement set off speculation the next justice could be a woman, a Hispanic or both.

Obama, who will be making the first high-court nomination by a Democrat in 15 years, pointedly referred to his plan to have “him or her” on the bench in time for the Supreme Court’s session that begins the first Monday in October.

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives,” said the president in a surprise appearance in the White House Press Room moments after speaking with Souter by telephone. Word of the impending retirement had leaked Thursday night.

The next wave of speculation was about the sexuality of some of the potential candidates, with some gay and lesbian rights groups pushing for an openly gay or lesbian appointment. Meanwhile, conservative commentators doubted the President would appoint an openly gay or lesbian judge.

Of course, then speculation started about other people on the list whose sexual preferences were not known. This Slate article explains:

Rumors abound that other women on the list are lesbians, though those rumors are rarely backed by any actual reporting or proof. None of this is surprising. Think of all the single, childless women in positions of prominence who have been “rumored to be gay.” Janet Reno, Harriet Miers, and Condoleezza Rice, for starters. The very much married Hillary Clinton is practically the only one who can proudly, casually say that she marches in Gay Pride parades, although rumors that she was a lesbian have dogged her, too, for decades.

Sometimes the code for gay gets sloppy and transparent. The Christian Coalition described Elena Kagan, former dean of Harvard Law School and U.S. solicitor general, as “extremely dangerous to America.” Although she has taken pains to welcome conservatives onto campus, Kagan is targeted by the right for being “gay friendly” because she took sides in a Supreme Court case in which several law schools objected to the military’s policy on gay servicemen and servicewomen.

Janet Napolitano, secretary of the Department of Homeland Security and another short-lister, has many times answered questions from Rush Limbaugh and reporters about whether she is gay. Again, nobody has offered any proof, except that she is unmarried. Which seems to make everyone think: lonely, misfit, or lesbian. Ed Rendell, head of the National Governor’s Association, once said about Napolitano, “Janet’s perfect for that job. Because for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19 to 20 hours a day to it.” So to lonely and lesbian add “no life.”

There are so many things wrong with all this speculation.

First, I don’t care what a judge’s sexual preferences are as long as he or she is a good judge, and can do his or her best to look reasonably objectively at a case (leaving aside postmodern questions of whether objectivity is really possible).

I suppose that’s the thing that worries me about open pushes for diversity. In principle, I think diversity in the judiciary is a Good Thing. It reflects the way society really is; there are a diverse group of people out there. Judgment is easier to accept if you think the group of people who are given the job of judging others reflect the variety of views out there. If a particular sector of society always makes up the group who judges, then justice looks like it is not fair and impartial after all. However, once a government starts saying that it is looking for diversity specifically, all kind of personal stuff becomes open slather.

I think back to the appointment of Bell J to our own High Court, and to Janet Albrechtsen’s reaction – Ms Albrechtsen objected to Bell J not because her appointment was unmerited, but because her appointment might be perceived as unmerited given the statements about diversity made by the Rudd government. I thought it was a particularly silly reason for suggesting that an appointment was inappropriate. Fortunately, Bell J’s sexual preferences and other personal details did not become an issue in the Australian press. Thank God for that.

I also think of a job interview where I was asked, “What disadvantage have you suffered?” It was asked in a manner which suggested that the interviewer was positively trying to help those who had suffered disadvantage. Nonetheless, it troubled me. To answer that question, I would have had to expose all kinds of personal details about myself (religion, sexuality, disability, ethnicity, class). I don’t believe any of those things affect my skills as a lawyer or as an advocate. I don’t believe they were relevant to the job. If I wanted to do so, I guess I could have painted a picture of disadvantage, but (a) I choose to look at my life as a blessing, not a disadvantage and (b) I think those details are private anyway.

Secondly, it seems that it is presumed that when a woman is single and childless, she’s a lesbian. Lesbians are not necessarily childless. I know a number of loving lesbian mothers. By the same token, I know a number of straight women who are single and childless but straight. Why the presumption? I suspect there’s all kinds of weird sexist assumptions hiding in there. Perhaps it’s because power is seen as something to be wielded by men, so if a woman is powerful…well, that’s treading into male territory. I wonder if people think, She must be on the other side of the fence, then. And hey, no man would want a woman who is powerful and smart like she is.

Notably, I don’t think single childless men face the same kind of prejudice. Just think of the difference between the two words “bachelor” and “spinster”. The latter has a kind of opprobrium attached which is not present in the word “bachelor”.

The other point made by the Slate article is that of course all the majority of women who are shortlisted for judicial office are unmarried or divorced and childless. It goes on to say:

And so the list is a Catch-22: The choices a woman may make to achieve stunning legal success are the same ones that may also someday preclude her from a Supreme Court confirmation.

One of my friends has been trying to persuade me ditch the PhD and go to the Bar. However, my priority is spending time with my children right now, and I can’t see the Bar being a particularly good environment for allowing me to achieve that. And, as I’ve been saying for the last 3 years on my blog, I don’t think that you can have it all – you have to make a choice, child or career, to a certain degree. Sure, you can have kids and choose to do the career thing both at once. But if you really want to do the career thing properly, this means you’ve got to cut back on time you spend with your kids, whereas if you want to spend more time with your kids, your career suffers. There’s only so much of yourself you can spread around.

Well, we’ll have to keep an eye who President Obama nominates to replace Justice Souter. I just hope that people are not too hard on her, whoever she may be.


  1. Posted May 15, 2009 at 12:14 pm | Permalink

    Great post LE

    I wonder when it became standard practice for presidents to stack the Supreme Court with political allies? Has it always gone on? What’s followed is this need to remake the world according to the liberal view of a diverse, open, tolerant society but by decree.

    Like Bill Clinton’s attempt to force the armed services to embrace the queer set. It doesn’t work and it ironically gives life to the tendency to judge people on the basis of something other than what is entirely relevant.

    And The Motherhood a bit of a hurdle for feminism ‘ey?

  2. John Greenfield
    Posted May 15, 2009 at 4:26 pm | Permalink

    Fantastic post LE, as are ALL your legal analyses. Who ARE these tools, who demand you get a Ph.D before your academic career can take off!? You are 200 times smarter than those tenured tools currently mewling about Bills/Charter of Rights!

    As one who enjoys a cock or two – or eleventy four, just quietly – I vomit hourly at this current trend whereby one’s integrity, wisdom, and worth are positively correlated to how much of a minority one is, or how painful has been the discrimination you have suffered.

    What we want are top jurists, not Academy Award quality shares from “Victims Anonymous”!

2 Trackbacks

  1. By skepticlawyer » Background of judges on May 11, 2010 at 9:13 pm

    […] there’s comments to the post speculating about her single status, just as there were similar comments about Sotomayor (gee I hate that, there’s a whole raft of revolting presumptions […]

  2. By Skepticlawyer » Scanning Judges on July 31, 2010 at 4:56 pm

    […] you start to get all kinds of personal questions about the potential judge’s background. Just look at the kind of stuff which has arisen about Obama’s nominations to the Supreme Court. Ultimately, it’s […]

Post a Comment

Your email is never published nor shared. Required fields are marked *