The Kagan Dog Whistle Gets Louder

cross-posted at Dagblog

Today, Ann Gerhart at the Washington Post came right out and said it: Elena Kagan's nomination to the Supreme Court is suspect because she is not a mother. So that dog whistle I was complaining about? It's a steam whistle now, very audible and very shrill.

I'm not going to link to the Gerhart's post, because bad behavior should not be rewarded with traffic. If you want to find it on the WaPo opinions page, her title is "The Supreme Court Needs More Mothers." No, I am not making that up.

Here is Gerhart's ringing conclusion:

In saying he wants justices who have "heart" and "empathy," and who understand "how our laws affect the daily realities of people's lives," Obama has invited us to ask who has a life outside work and who doesn't. That's hard to determine in a confirmation process that will require Kagan, like Sotomayor before her, to crimp her personality and bite her tongue.

Motherhood offers a one-word verifier. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and intimacy, all outside the workplace. Much of the time, it's the opposite of being strategic and assiduously prepared.

It's a story we understand without needing all the details.

Heavens no, who needs details when we have handy stereotypes? As far as Gerhart's concerned motherhood is sufficient evidence if your intense inner life and your capacities for "unpredictability and intimacy" (are we hiring a Supreme Court Justice or writing a personal ad?), even if the nominee doesn't happen to be unpredictable, joyful, spontaneous, or capable of intimacy. Yes, parenting, as Francis Bacon tells us, exercises and strengthens our compassion, but not every father or mother is compassionate. By Gerhart's standards, Margaret Thatcher should be considered compassionate, but Jane Addams not. If you find those examples cheap and easy, they are. It only took three seconds to come up with them. But Gerhart didn't think that long.

Part of what's frustrating is that Gerhart enumerates the obstacles that today's women face and then offers a solution that scapegoats women. It's really hard to juggle motherhood and career, Gerhart reasons, and so women who choose to make their career the priority should be punished by, what was it? Oh yes, blocking their careers. Can't see anything unfair or unreasonable about that.

I'll try to explain this again, in words that even a WaPo Op-ed writer can understand (although Ruth Marcus needs no help, and her piece on Kagan is a gem):

It is paradoxically easier for women in the path-breaking generation in any field to juggle motherhood and career. How could that be? Because that generation of women doesn't need to worry about being slow-tracked if they get pregnant. They've been slow-tracked anyway. This is why Justice O'Connor could be a mother and the first woman on the Supreme Court. First of all, O'Connor's career was initially held back to an artificially slow pace (during her prime child-bearing years), because women lawyers had few or no opportunities. (Again, she finished 3rd at Stanford Law, and that didn't get her a job. Her classmate William Rehnquist, 1st in the class, had plenty of offers.) O'Connor had to break her own trail, slowly, and taking time off to start a family had a relatively low cost. Today's most promising young lawyers have to choose: a baby now, or a Supreme Court clerkship this year? A baby now, or bill extra hours to make partner at White, Shoe & Clubb? A baby now, or a chance to serve in the new Administration? O'Connor didn't have those choices. Secondly, as slow as progress is for women in the ground-breaking generation, there are still no other women ahead of them. O'Connor could take her winding route to nomination, raise a family, and still be one of the most qualified female Republican lawyers in the United States when she was nominated. That is no longer true for women who made law review at top schools. They are no longer alone, but they also no longer have the field to themselves.

I've seen this first hand, watching my mother break into a field that had always belonged to men. I could watch, because my mother had me before she started that career, and even before she had gone to college. (The first time I ever entered a college classroom, it was because Mom's baby-sitting arrangements had fallen through.) But even with that late start, Mom was always unusually qualified for a woman police officer her age. It was unusual for her even to be a police officer. Everything she did and everywhere she went, she was going first. There were no female peers for her to be measured against. But the first woman to lead the NYPD or LAPD or the FBI won't be the only woman in the NYPD, LAPD or FBI; she'll be one women among many, and they'll all face hard choices about career and family.

What's repulsive about Gerhart's argument is that none of these standards are applied to male nominees. No one's asking if male nominees are dads, or how much attention they actually spare for my children, nor should we. I might be more sympathetic to the nominate-more-mommies argument if we demanded that people like Roberts and Alito coach spend a certain number of hours flying kites or coaching Little League, but not much more sympathetic, because applying a foolish standard universally doesn't make it less foolish. We demand intellectual achievement and legal heft from our nominees, and that's fine. It's just from the women that we demand intellectual achievement, legal heft, musical laughter, a devil-may-care smile, and experience catching fireflies in bottles on summer nights. A male justice has to be a judicial heavyweight. A female justice apparently has to be a judicial heavyweight and a character in a Bronte novel. (Although if she is openly emotional, or even just a Latina, her emotionalism is suspect.)

And what's truly repellent about Gerhart is her traffic in the ugly saw that childless women lack full emotional lives. Everybody knows, of course, that a woman who doesn't get married and have kids, and most especially a high-achieving woman who doesn't get married and have kids, is entirely out of touch with her inner life, deprived of her full capacities to imagine, intuit, hope, and feel.

You can ask the Bronte sisters about that last one, too.