That's Right, The Woman Is (Huh!) Smart-er: On The Elena Kagan Nomination

At a certain point you hit an age where you look around you and there are Other People who are reaching the pinnacle of their careers while you -- well, you have a book, some articles, a good job at a snazzy little school and a well-read blog. Of course, the best may be yet to come. But right now I look at Elena Kagan and myself and see the similarities: educated at a single sex school (check!), and among the first generation in at the all-male Ivies (I was class of 1980 at Yale, she was 1981 at Princeton.) From then on our paths seem to have diverged. I labor in semi-obscurity at Zenith, she is shucking a top job in the Obama administration for a series of nasty encounters with the chipmunky Jeff Sessions and the opportunity to change history on the Supreme Court.

I, in contrast, who could have gone to law school with the other smart, ambitious women (which is what the female Dean of my residential college told me to do) will keep my day job writing history while I wait to see if I can monetize my blog or win the Pulitzer Prize. All right, there isn't room at the top for all of us; while some are called to make history we also serve who write the nation's past. Nonetheless I do have a few regrets about roads not taken. Although we women of the 1970s were all hot out of the starting gate, some of us made it to the rail and some of us didn't. I got to tell you, my only conclusion is that Elena Kagan worked harder than I did, earlier than I did. She was a risk-taker, I stuck to what I knew I could do well. And to be brutally frank, Elena probably spent way less time drinking beer and chatting up chicks in lesbian bars, gay discos and ACT-UP demos than I did in the 1970s and 1980s.

Or did she? Did I mention that there was something else Elena and I might have in common? Or so sayeth those who can't stand the sight of an intelligent, successful woman who seems to have done almost nothing wrong beating out a lot of less-deserving men. Despite the fact that she kept her nose to the grindstone and kicked a lot of male butt along the way, what seems to be emerging as the Kagan story is whether she is a lesbian or not.

Is it still the 1970s or what? Smart woman, ambitious, not married, no guy in sight -- she must be a dyke!

Now, I want everyone to be a lesbian -- really I do. I want Phyllis Schlafly to be a lesbian. There are even selected men who I like so much that I think of them as lesbians. For these reasons and more, I would think it was cool if Elena Kagan were a lesbian. If I were not already happily partnered, I would consider sending a message through third-party channels that being the accommodating husband of an Associate Justice on SCOTUS would be exactly my cup of tea. She could make history, I could make cookies for those long, esoteric discussions about the Second Amendment. I would learn to iron, so that every morning from October through July I could press the funny little neck object the female justices wear before I skipped off to the National Archives.

But do we queers need to follow the Christian right's valorization of heterosexuality as a litmus test of good citizenship and insist that all of "us" are inherently progressive and trustworthy? Michael Wolff at Newser says that the question everyone was afraid to ask Sonia Sotomayor will be asked of Kagan because, other than her scholarship and her suspiciously collegial relations with conservative faculty as Dean of Harvard Law School, she has no judicial paper trail. "You can feel it," Wolff writes, "We are just on the verge of articulating our right to know somebody’s sexual point of view." Wolff's only slightly tongue in cheek rationale is this: in the absence of any proof that Kagan will go mano-a -mano with the Court's radical right, having it come out that she is a lesbian would cheer up everyone who is left of center. "For the left, her being gay would be good news, confirming her progressive sensibility," he explains. "While for the right, being gay signifies all the rad-lib expansive-interpretation issues that would surely be spelled out by her judicial opinions, if she had any."

Do we really think that queer people have a "sexual point of view?" Try that one out on J. Edgar Hoover, why don't you? Or Roy Cohn? Or a certain New York City based conservative female expert on education who keeps coming into conflict with other conservatives about gay stuff?

Seriously, only straight people would believe that a candidate for the Supreme Court or any other high office is more trustworthy on progressive issues because s/he is queer: it is such a perfectly reductive example of what counts as politics nowadays. "I'll take one of these, and one of those -- and the court won't be balanced if I don't have one of those....." What strikes me as a little more interesting is what slipped out on The News Hour last night about the sexism internal to the Court. Marcia Greenberger spoke to a situation that many of us are familiar with: that it is sometimes hard for men to tell women apart. "One of the historic things that people used to joke about," she said, "was that, with two women on the court, for a long time, Sandra Day O'Connor and Justice Ruth Ginsburg, lawyers used to call them by each other's names and confuse them. They were still tokens. It was still: It's one of the two women. Having more women turns those women justices into justices, and makes them part of the normal routine, that we have male and female justices."

Speaking as someone who has a senior male colleague who repeatedly calls me by the name of another female colleague, even though we have worked together for eighteen years, I say Amen to that, sistuh. But the part I liked best was when regular legal commenter Marcia Coyle pointed out that not only would three women make for a more diverse and representative court, it might make for a smarter court. As Coyle noted, "when you look at his list, what was considered his short list, it was dominated by women. And they are some of the best legal minds in the country. So, I think he was looking for diversity in experience. And, also, I think he was looking for someone who can really do the job."

That's right -- the woman is (huh!) smart-er!
That's right?
That's right!



Harry Belafonte and Julie Andrews, "Man Smart, Woman Smarter" -- although oddly, Julie seems to disagree.

Remember the Alamo? Texas Conservatives Won't Jump On The Latina-Bashing Bandwagon

As the Dallas Morning News reported yesterday, prominent Texas Republicans are not jumping on the racism bandwagon being pulled by extremist conservative Republicans over the Sonia Sotomayor nomination. Republican Senator John Cornyn has come out strongly against this smear campaign driven by stalking horses Newt Gingrich and Rush Limbaugh (who, by the way, have not been elected by anybody to anything lately. Just saying.) Cornyn's colleague, Kay Bailey Hutchison, said to be running for governor of the Lone Star State in the next cycle, has chimed in as well, trying to limit the damage to the Republican Party that these dumb-asses with fat media contracts are doing (and by the way, who cut off Dick Cheney's Zoloft supply?) Today on CNN's "State of the Union" she separated herself from the lunatic fringe by saying clearly that the debate should be based on Sotomayor's record, not on labels applied to her by others.

This, by the way, was also the position taken by the very influential Republican Senate Judiciary Committee member Orrin Hatch on NPR Friday morning. Hatch took the opportunity to say that the tenor of the confirmation process that we are stuck in and with (otherwise known as "being Borked") was invented by liberals, which is not precisely true: many conservatives hated Bork because he was a judicial activist, but they did not have the influence necessary to take him out without help from the liberals. In other words, if they could have Borked Bork alone, they would have, but they were stuck in the role of Greek chorus. But Hatch, although he still seems bitter about the Bork battle, said that he had voted for Sotomayor back in 1998, and that he hoped his colleagues would "take the high road" -- even though he would not be surprised if they did not.

But back to Texas. I wish Senator Hutchison would say something stronger, but not slandering Sotomayor and asserting that she intends to be fair is a good start. What happened to Elizabeth Dole when her campaign took the low road against Kay Hagen in November should be instructive to all: there are some things that centrist swing voters, most prominently Christian women and Hispanics who are conservative on some issues and not on others, do not think ought to be part of the conservative repertoire: discrimination, dishonesty and character assassination seem to be among those things. And they don't seem to think it is ridiculous identity politics to vote their consciences on these matters.

I would also like to take the opportunity to say that I have always liked Kay Bailey Hutchison, despite the fact that we have strong disagreements on some key civil rights issues. I have always thought she was a class act and I admire her professional achievements in a state and a region that can be politically bruising for women. Senator Hutchison declined to comment on the racism charge in the Dallas Morning News yesterday, when she was asked if she would reverse the no vote cast in Sotomayor's confirmation hearings eleven years ago, and said that she is going to look at Sotomayor's record on 2nd Circuit Court of Appeals. "Hutchison has said that the 1998 vote was about Sotomayor's judicial activism as a district court judge," writes Eric Aasen of the News.

Well fine. Because however much I dislike it, this is a legitimate school of legal thought. It's called strict constructionism, for those of you who have been living under a political rock. It assumes that the original wisdom of the founders (all white, all male) foresaw all of the ways their society would evolve until the Last Days (funny that they did not foresee the end of chattel slavery, non-white people being admitted to full citizenship or women's suffrage.) It also assumes that the separation of powers articulated in the Constitution ought to be absolute. But you know what? Sotomayor's view that the Constitution is a living document is also a legitimate school of legal thought. So is the view, which she expressed precisely once as far as we all know, that life experience shapes one's insight into how the Constitution speaks to new problems as well as how it speaks to older, seemingly intractable problems. It is called "critical legal studies," and it is a field that rejects the idea that the law deals with us all equally when it assumes that all of our life experiences and opportunities have been equal. There is nothing in her record as a jurist to suggest that she has thrown key decisions because of her overwhelming empathy for Latina women, but we suspect perhaps that she reads Patricia Williams and Derek Bell with a flashlight under the covers long after Ann Coulter has gone off to bed to rest up for another hate-mongering day.

I have been unable to comment on this matter until now because I am so sick and tired of being told that civil and economic inequality -- whether we are talking about access to marriage or education or to basic services like health care and trash collection -- is merely accidental, or a question of personal virtue rewarded. I am sick, sick, sick of white people and straight people and men (depending on the issues involved) screeching about "identity politics" when those who are being discriminated against have the temerity to object to being discriminated against. And just to speak to one issue that is being raised in relation to the Sotomayor nomination - I live in the City of New Haven, and it is no accident that the overwhelming majority of our police and firefighters are white. No accident whatsoever. And it's also no accident that our police and firefighters do not live here -- a city in which whites are in the minority, even when Yale is in session.

I object as a citizen to the notion that only women, queers and people of color have "identity politics" and that white people, straight people, men reflect the world as it is. Frankly, I object to this idiocy as a historian, because it obscures the ways in which what have come to be known as "identity politics" were invented by those who are now screaming foul because of Sotomayor's comment on the role growing up Latina played in forming her intellect and consciousness. Historical examples I would cite are:

Plessy v. Ferguson (1896), which upheld the civil right of white people to exclude black people from their company and their commerce. Of Jim Crow statutes, the court argued that "A statute which implies merely a legal distinction between the white and colored races-a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color-has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude." We might argue that conservative activists' insistence that they are "color blind" initiates its intellectual history at the moment that its opposite was being expressed: when jurists insisted that actually seeing color and using it as a basis to restrict the access of some citizens to all spaces did not also restrict their civil rights.

U.S. v. Thind, in which an all-white group of Supreme Court Justices explained that the founders intended to only admit "white persons" to citizenship. Lest the Court be accused of judicial activism, in the following year an all-white Congress passed the National Origins Quota Act (1924) that made it illegal for "aliens ineligible for citizenship" to immigrate to the United States, even as temporary laborers.

OK, I could go on, but I want to get back to Texas, a state that might be on the brink of going Democratic (Hat tip to conservative Christian blogger.). Because the stand that Hutchinson and Cornyn are taking is not unrelated to their life experience as white politicians who know that white people can't win in Texas with only white votes. They know that bashing prominent Hispanic professionals who have pulled themselves up from poverty through hard work and sacrifice doesn't pay dividends. If you look at the most recent Texas Census, you will see that a whopping 36% of Texans identify as of Hispanic or Latino, as opposed to 15.1% nationwide. But this doesn't actually tell the whole story, since a fair number of other people of Hispanic descent (many of whom don't even like the term Hispanic since it collapses many histories into a hybrid, pseudo-racial box) are checking other boxes, including "white."

I'm not saying that Hutchison and Cornyn aren't principled. But mightn't their principles also be related to life experience, as opposed to having been pushed from the womb without a racist bone in their bodies? And whatever personal qualities they may be bringing to this -- whether it is fairness, professionalism, honesty -- they are bringing a cold hard fact to the table as well. Attacks on Sonia Sotomayor will be perceived, even by the most conservative Hispanic voters, as racist -- because they are. Whether you agree with the idea that one's life experiences are a path to empathy and knowledge or not, the truth is that she also took that other path to knowledge: Princeton summa cum laude (in history, no less); and Yale Law Review. And it is when facts like this are being disregarded in favor of creating a hullabaloo about a comment made outside the court room that conservative women and conservative Hispanics tend to smell a rat. Because even though some of us are conservative and some of us are not, none of us was born yesterday, Newt.

To weigh the overwhelming evidence of Sotomayor's scholarly excellence against her willingness to identify publicly as a Latina woman (as opposed to, say, a white man's objective brain in a Latina woman's body?) and find that the latter trumps the former is nothing but racism.

And the Senate delegation from the Lone Star State knows it.