The Kagan Dog Whistle

cross-posted at Dagblog

Suddenly, with the Elena Kagan nomination, careerism is a terrible thing.

When John Roberts was the nominee, it was all about the splendid qualifications of his splendid career. Much the same when it was Samuel Alito. When Sonia Sotomayor was the nominee, it was all about whether or not her qualifications were actually qualifications, what with her being a Latina and all. (If you get a summa cum laude from Princeton but you're not white, how can Pat Buchanan be sure you can even read English?) But everyone agreed that the big questions were career and qualifications. Now that Kagan has been nominated, some people are complaining that to be this qualified, she must have spent her entire adult life pursuing those qualifications! My goodness! Anybody with such an impressive career must be a ... a ... a ... careerist!

Can you hear the dog whistle yet?

David Brooks is terribly, terribly worried that Kagan is a careerist "Organization Kid," who has repressed her true self to get ahead: "prudential rather than poetic," calculating rather than passionate. (Why any rational person would want a poetic judge rather than a prudential one is beyond me.) Andrew Sullivan is scared, too, because Kagan's "life, so far as one can tell, is her career" which has kept her from taking bold, passionate positions. What bold positions? Coming out as a lesbian, of course, which is Sullivan's chief demand, Kagan's actual desires, in every sense of that word, notwithstanding. According to Sullivan, Kagan's "entire life seems to have been a closet - in the pursuit of a career."

Can you hear it? It's pitched very, very high.

Oh, fine then. Here is twittering twit Howard Kurtz, answering the whistle and salivating:

Kagan, Sotomayor -- Do some women dispense with husbands and kids to climb to the top of their professions?
http://tinyurl.com/2g9s5jy
Howard Kurtz

(h/t John Cole, whose post on Kagan is superb)

Whoops. There it is. You see, Kagan has been so focused on her career that she's left no time for her personal growth. (Nudge, nudge.) She has turned her back on her own passions. (Wink) She needs to get off the career track for a little while and do things that wouldn't help her resume but which are, you know, personally fulfilling. (Nudge, wink, nudge, wink.) That would make her more emotionally well-rounded. Otherwise, of course, she must be passionless, emotionally stunted, and estranged from her real self. Probably a lesbian, too.

Only Kurtz is clumsy enough to say it aloud. That's why it's a dog whistle. But it's meant to summon up familiar anti-feminist stereotypes about career women, and about the horrors of sacrificing one's "natural" maternal destiny in order to pursue a professional career. The point of those stereotypes is not to deal with the genuine difficulties facing women who want both motherhood and careers, but to intensify those difficulties, and to make the option of forestalling or foregoing motherhood appear illegitimate. The argument is that women who aren't mothers, and most especially women who aren't mothers because they have been pursuing careers, aren't real women at all. And of course, since they're not real women, they don't know what they really want.

This is why one 50-year-old nominee was presented as brilliant, poised, and prudent while an essentially identical 50-year-old nominee is presented as a repressed, wonkish automaton. Elena Kagan isn't any more of a careerist or a nerd than John Roberts was. Who could be? And no one imagines Roberts as less authentic or less human, let alone less manly, because he delayed marriage until after he was forty. No one faults a man who postpones starting family life while building his career.

It's startling the extent to which the press coverage of Kagan has been dominated by her childlessness and her apparent partnerlessness. On one hand you have the must-be-gay storyline, with its breathtaking ignorance of the choices professional women in our society face. (I have no idea who Elena Kagan likes to sleep with, but I know that there are many, many successful women who have trouble finding appropriate and supportive partners. To treat the fact that Kagan is single as some inexplicable oddity, which must be hiding a deep personal secret, is to indulge in the luxury of not having to notice certain basic facts. ) On the other hand, you have the "careerist" meme, which is inseparable from the stereotypical ways in which career women are imagined in American society. Either way, it boils down to the same ugly idea: whenever a woman gets to the head of the class, her femininity is suspect. So she needs to prove that she's a real woman. Bullshit, I say. It stinks.

Let's face some hard facts about the Supreme Court nominating process these days. The two key demands are that the nominee must be indisputably, even overwhelmingly, qualified (because the opposition party will attack any weakness) and that the nominee be as young as possible, preferably 50 or so (so that the nominating party keeps the seat as long as it can). Those two requirements demand a candidate who's been on the fast track for his or her entire career. All of the hand-wringing about the way everyone on the court is from Harvard or Yale Law stems from this. The only way to become impeccably qualified for the Supreme Court by age 50 is to get a hot start and keep it in high gear for three solid decades: clerking at the Supreme Court, followed by a series of plum appointments in some mixture of high-powered firms, the federal judiciary, government service, and Top 5 law schools. Lawyers who begin without elite pedigrees and influential recommendations can build an equally powerful resume, and sometimes achieve more than their peers from Harvard, Yale and Chicago, but it will take them longer. When someone from a merely excellent law school is qualified for the Court, they will likely be 60 or 65, rather than 50. The nominees we're seeing are all, necessarily, careerists: there's no longer any time to relax if you're going to be ready for nomination before you're too old to nominate.

Keeping this blistering pace also doesn't allow much time for bearing children. It's possible for men to stay on the new future-nominee schedule and start a family, because they don't need to sacrifice their time or energy to pregnancy, and because it's easier for them to find partners who will take on more of the child care. That doesn't mean that professional women can't have children and be successful; it just means that it takes longer. Ruth Bader Ginsburg has children, but she was 60 when she was nominated, and that's still starting from both the Harvard and Columbia law reviews. Sandra Day O'Connor managed to have children and get to the Court by 51, and she'd taken a more interesting, less fast-track route to nomination, but that was because O'Connor wasn't originally allowed on the fast track; she graduated third in her class from Stanford Law and no one would hire her as a lawyer. Future women nominees with careers like O'Connor's won't seem "qualified," because talented female lawyers are recruited to the inside track now. A nominee like Joan Roberts might manage to have both career and children, but only if she doesn't get married until she's 41 and then adopts her children rather than bearing them. (Oh, I'm sorry. That was John Roberts. Forget I said anything.)

If all of this seems abstract or hypothetical, consider the case of Judge Diane Wood, who was on the short list for each of Obama's Supreme Court nominations so far. Wood is eminently qualified, has three children, and got her law degree from the University of Texas rather than Harvard or Yale. But Judge Wood is already 59, and will be 60 on the Fourth of July. As pundit after pundit has opined over the last month, that's now considered problematically old.

Might we eventually see female nominees to the Court who've managed to build up intimidating
qualifications by age 50 (or 52 or 48) and still had children? Of course. But it's a flat denial of reality to treat that profile as the rule and a profile like Sotomayor's or Kagan's as the exception. Kagan and Sotomayor are far more normal, and far more typical considering their professional circumstances. Elena Kagan became Dean of Harvard Law School when she was 43 years old. Apparently, some people (including a guy who became editor of The New Republic at 28) feel that this should be held against her. If she'd taken the time off (and I mean the minimum medical time) to start a family, she probably would not it have made it so far, so fast, and that would have been held against her, too. She has worked incredibly hard, drawing on formidable talents and resources, to make herself fit for national service, and faulting her for that is downright ungrateful.

Elena Kagan has no passions? Who are we kidding?