Sexism & the Supreme Court Nominee

When Hillary Clinton was a Presidential candidate, male commentators frequently said she couldn't be elected because she reminded men of their nagging wives.

Now, more than a year later, President Obama has nominated a woman, Judge Sonia Sotomayor, to fill the Supreme Court vacancy created by Justice Souter's retirement. Mindful of New York Chief Judge Judith Kaye remark that "gender stereotypes are famously resilient," let us still hope that the sexism that was on display during primary season will not infect the nomination process of our next justice.

In its recent study, Improving Judicial Diversity, the Brennan Center cited cognitive research that suggests endemic implicit gender bias. Acquired in early childhood, our inclination to stereotype others automatically and without thinking prompts unconscious discriminatory behavior in all areas of life.

The world of orchestras supplies an unlikely, but concrete example of implicit bias in action. Researchers found that when female and male virtuosos audition for first violin, male candidates often get the job. But, if musicians audition behind a curtain that obscures their gender, more women get the job. Apparently the image of a male first violinist is so strong that it warped the way the violinist's music sounded to conductors. The disturbing corollary is that gender disadvantaged female candidates, even when they are better players.

Though women make up a third of the nation's lawyers, just three women had been named prior to today's selection of Judge Sotomayor, retired Justice Sandra Day O'Connor, Justice Ruth Bader Ginsburg and Harriet Meyers, whose nomination was withdrawn. By naming Judge Sotomayor, President Obama has tapped a long under-utilized portion of the nation's legal talent pool.

Even before the nominee was announced, there were already hints of bias against female candidates including a New Republic piece by Jeffrey Rosen that poo poos Judge Sonia Sotomayor's intellectual capacity. Gender stereotypes - that women are not as capable as men -- appear to animate these critiques.

Even with Judge Sotormayor's nomination, this twenty-first century Supreme Court continues to be significantly unrepresentative of America's population - a fact which calls into question how average Americans perceive the legitimacy of the Supreme Court. If the court looked like the general population, we'd expect five women on the court. If the court looked like the Bar, we'd expect three women. It's worth noting that other modern democracies, including Brazil and Canada, have female Chief Justices.

Would female Justices change the character of American jurisprudence? We won't know until we have a Court that better reflects the population. Meanwhile, as Professor Sally J. Kenney, a scholar of gender and the courts, writes, "[w]hether one wants better deliberation, truly meritorious selection, or legitimacy and compliance, all are served by a Court that includes women members." By selecting Judge Sotomayor, President Obama has shown that the right man for this important job is a woman.

Ciara Torres-Spelliscy is Counsel at the Brennan Center for Justice at NYU School of Law and co-author of Improving Judicial Diversity along with Monique Chase and Emma Greenman.

Comments

[toxicbrainpoison]

yeah... the best was when karl rove says he knew people in the ivy league who werent too smart.. we all know who that was a reference to. Unlike Bush's C average Sotomayor actually graduated at the top of her class...

[tallisse]

What Sotomayor was talking about in her Berkeley speech is the importance of diversity in our judges. This speech is a call for all types of judges, white males included but also others, because, in her words, personal experiences affect the facts that judges choose to see.

She said, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived her life, IN THE CONTEXT OF DECIDING SEX OR RACIAL DISCRIMINATION CASES. Just like in deciding an antitrust case, a judge who only had the experience of being a big corporate CEO might look at the case differently than a judge who only had the experience of being a small business owner.

Now you can agree or disagree with her sentiment that having judges with varying personal experiences makes the judicial system better. But calling her a racist because of it is completely and utterly INACCURATE. Once again I fear the conservative bigots will win on spinning this one.

[jcwtts1]

What I would argue is that at some point a President has to move past the one rule. One black on the court so no more, one woman on the court so no more. What I would like is for Obama to nominate another justice of color and a couple more women. But as long as the court is 9 justices there is no way actually deeply change the make up. I believe it is time to expand the court.

J

[valkyrie607]

Anybody doubting this should read The New Republic's preemptive hit piece on Sotomayor, the one by Rosen.

http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085

Anyone not interested in reading drivel can instead go directly to Rosen's evisceration by the merciless Glenn Greenwald:

http://www.salon.com/opinion/greenwald/2009/05/05/tnr/index.html

[spiritpony1]

yes, sexism is the fantasy of the blogger (yawn)--------first of all, Sonia WILL BE appointed anyway. The right wing arguments against her fall primarily to (perceived) liberalism, not even to race; Far less sex. it is doctrinaire crap like this blogger's notions that are really not useful to us, as women lawyers, getting ahead----------

[wagadog]

Somehow I can't imagine Justice John Paul Stevens being accused of being "emotional" in his dissenting opinions on the DMCA.

Likewise, if you actually read anything the woman has written, there is scant evidence of being "ruled by the emotions" -- as is the pathetic gender-stereotyped laden accusation of the far right.

And so, simply observing the fact that yes, gender stereotyping is figuring heavily (and irrationally) in the attacks being leveled by the far right (who also argue that women belong in the home, should not work, and should have as many babies as possible, whether they can afford them or not -- after all, they can just sell their bodies to the patriarchy to make ends meet, right?) -- is labelled "doctrinai­re."

Guess you're speaking more from your irrational emotionality, spiritpony1, than arguing from the facts of the matter. Oh well, it's to be expected. Men are like that when it comes to protecting their unearned privilege in society.

Don't you have work to do?

[chazmanr]

While I believe that sexism and homophobia are still pervassive in America, this article smells an awful lot like the one last week claiming that Adam lost American Idol due to homophobia (tween girls with lots of time on their hands pressed "Redial" for hours to vote for the "cute, shy guy"-PERIOD). I agree that the court needs more women, but to argue that her nomination will be impeded by her gender seems short-sighted and reeks of a desire to label. Anyone Obama tries to appoint short of another Scalia will be met with resistance.

[clevelandchick]

Sonia Sotomayor has the education and experience to be a SCOTUS judge. She graduated with honors from Princeton and was editor of the Yale Law Review. She's got vast judicial experience. She is more than qualified.

But the GOP talking point out there is that "she's an intellectual lightweight" that will judge on her emotions not the law. John Yoo and Ramesh Ponnaru have made public statements about Sotomayor's nomination to that effect. This is a typical argument against women holding high positions. So fear of sexism where this nomination is concerned isn't a just fantasy in the blogger's mind here.

And your analogy isn't just way off, it's pretty insulting.