May
11th 2010
And the Whig of Illusory Progress goes to. . .

Posted under: American history, Gender, jobs, women's history

The Whig of Illusory Progress

The Whig of Illusory Progress

UPDATED BELOW

Ruth Marcus of the Washington Post for her silly and mutually contradictory comments on the nomination of Elena Kagan for the United States Supreme Court yesterday.  It’s been quite a while since I’ve awarded a Whig of Illusory Progress–for an explanation and the Whiggy archive, just click here.

Today’s Whiggy goes to another “We’re Never Going Back Now!” story.  That’s right, girls:  did you know that having four U.S. Supreme Court justices in all of U.S. History means that the world has now changed, like, forever, and we’re in a new era of social progress?  Let me hand it over to Marcus to explain:  

The first woman to be dean of Harvard Law School. The first woman to be solicitor general.  

But: the fourth woman, if she is confirmed, on the Supreme Court. The third woman among the current justices.  

The arc of women’s progress is measured by Elena Kagan’s transition from anomaly to norm, from trailblazer to just another. Well, more than just another — a Supreme Court nominee never is — but less of a big deal.  

And no big deal is what makes Kagan’s nomination such a welcome moment. There is certainly no going back to a court with a lone female justice, probably no going back to a court with only two women.  

Wowee!  Hey–isn’t that pretty much what Ruth Bader Ginsburg said when she was nominated 16 years ago?  And then she became the lone woman on the court for three years after Sandra Day O’Connor retired in 2006, right?  

It represents, as Justice Ruth Bader Ginsburg said the day of her nomination, “the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers.”  

For 12 years, until Ginsburg joined the court, Sandra Day O’Connor was its one-at-a-time performer. For three long years, after O’Connor’s retirement and before Sonia Sotomayor’s selection, Ginsburg was the soloist.  

Yeah–like I was saying.  Ginsburg in fact became that one woman on the court.  Well, anyhoo–everything’s like, totally different now because. . . Ruth Marcus says it is!  

The overlong era of firsts is coming, happily, to a close where women are concerned. Not completely — there are a few hard ceilings yet to crack — but mostly. I happened to be at a working dinner the other day at which I was the only woman, and I think the men were more uncomfortable about the gender imbalance than I was. The new abnormal is a situation where there aren’t a reasonable number of women present.  

So, her “evidence” that the days for women’s firsts is coming to a close is a story about how she was the lone woman at a work function, but the men felt really, really uncomfortable about it?  (I hope they told her how delicious her cookies were.)  

Why does this matter? On an institution like the court, symbolism counts — something, by the way, the justices ought to have paid more attention to when they closed the court’s majestic front entrance. A token woman or two conveys a different message than a solid plurality, a critical mass.  

Three out of nine women is a “plurality?”  Are there intersex people on the court of whom I am unaware?  Because I always thought that a plurality was constituted by largest number of all possible votes (or sexes, in this case) but not a majority of them.  (As in the Conservative victory in Britain last week.  The Tories have a plurality, not a majority, which is why they have to play footsie with the Liberal Democrats.)   If we’re talking gender, there are (for the sake of simplicity, please) two sexes, and since there are only nine Supreme Court Justices, there must always be at least a 5-4 majorityof one sex or the other.  I would say that even if Kagan is confirmed, there will still be a comfortable majority of men on the court, as there has been for 29 years.  And before that, there was an extremely comfortable unanimity of men on the court for 192 years.  

Can someone please explain what there is to cheer about the numbers three or four?  Because I just don’t see how they’re all that different from “a token woman or two.”  (They’re better, but still totally inadequate.)  Call me cynical–but we’ve been hearing these Whiggish claims about women’s progress for better than 200 years, and although there have been some important changes in that time span, there is also a shocking degree of continuity throughout American history, especialy when we look at women or observe how gender operates.  And cheerleading about how more than 50% of the U.S. population are somehow so awesomely represented by holding 33.3% seats on the Supreme Court will only serve to reassure everyone next time around that they can go back to business as usual and stop worrying about gender equity.  I’ll get on board with that–after I see 192 years of a female-majority U.S. Supreme Court.

UPDATE, later this morning:  Everyone’s writing about Kagan!  After posting this, I found this excellent rundown by Mary L. Dudziak, “The Supremes and the Single Girl,” (via Ann Bartow at Feminist Law Profs) about all of the unseemly curiosity about Kagan’s personal life.  She argues that unmarried Supreme Court justices are hardly anomalous.  Tenured Radical addresses the lesbian-baiting and rumor-mongering surrounding Kagan, and find it hillarious that anyone might suggest that there is such a thing as a “sexual point of view.”  Hey–so long as a subordinate doesn’t come forward to say that ze was sexually harassed by Kagan and/or a Pr0n Dog, like one Associate Justice of the Supreme Court I could name, it’s all good.  Straight or gay or neither or both, mother or not, married, divorced, or not, I don’t care.

38 Comments »

38 Responses to “And the Whig of Illusory Progress goes to. . .”

  1. feminema on 11 May 2010 at 10:31 am #

    Speaking of “progress,” I just spent a little time on one of those academic wikis where you can find out who got teaching jobs in your discipline — partly to see who got hired at what schools, and partly to see gauge the depression level during this horrible year of job searches.

    This is a highly random thing — not everyone reported who got hired, some people self-report, and others keep posting pokes like “Hello? any news on this job? Crickets?” BUT. Every single one of the jobs reported in my field went to a man — about 25 reports, I’d guess. Now I know for a fact this isn’t entirely true (one of our female grads got one of these jobs), but still: damn. Coming from a grad school that had 4 women faculty out of 27, I still really care that women get hired. So as happy as I am about the Kagan nomination, it’s the same old university stutter-step, not a march of progress.

  2. Historiann on 11 May 2010 at 10:41 am #

    feminema: I’d love to pretend to be shocked, but I’m not.

    Speaking of records of hiring–you might be interested in what Guy-Uriel Charles at Colored Demos has had to say about Kagan’s record as Dean of Harvard Law. (Spoiler alert! Her tenure was awesome for conservative white guys. Of 29 tenured or tenure-track hires, she hired 23 white men, 5 white women, and 1 Asian American woman.)

  3. MsMcD on 11 May 2010 at 11:07 am #

    “And cheerleading about how more than 50% of the U.S. population are somehow so awesomely represented by holding 33.3% seats on the Supreme Court will only serve to reassure everyone next time around that they can go back to business as usual and stop worrying about gender equity.”

    Hear, hear! It’s amazing that when white men get nominated for the Supreme Court, the discussions revolve around what they think, while for women it’s about who they are. We should give up the notion that the Supreme Court is a representative body- it is not. Which should be obvious since Kagan would make the court six Catholics, and three Jews; no Protestants. That’s okay because the court is not supposed to represent our backgrounds or opinions (despite what some courts have determined) it is supposed to be based on the justices unbiased (!?) interpretation of the law.

  4. Historiann on 11 May 2010 at 11:46 am #

    I agree that it can be perilous to assume that certain points of view are guaranteed to be housed in bodies of particular sexes, ethnicities, or confessions. But I disagree that the Supreme Court shouldn’t better represent all of the United States. In a democracy, if nominees to the Supreme Court are drawn only from a narrow sub-set of Americans rather than all possible qualified candidates, that’s a problem.

    Aside from more women on the court, I’d love to see some SC justices in my lifetime who attended neither Harvard, nor Yale, nor any Ivies, for either their law or undergraduate degrees. There are a lot of great schools in every other region of the country. It’s a big nation, friends, outside of the northeast. But you’d never know that if you looked at our Supreme Court.

  5. Emma on 11 May 2010 at 12:07 pm #

    Why are people so focused on the law school thing?

  6. Historiann on 11 May 2010 at 12:11 pm #

    Which people? The people who insist on appointing exclusively HarvardYale people to the SC, or people who criticize the lack of intellectual and geographical diversity on display in these choices?

  7. cgeye on 11 May 2010 at 12:41 pm #

    Because it’s a narrow track of acquaintances that got them there, with specialties in a narrow branch of law, the only ones worth cultivating.

    Any of those appointments familiar with Water Court Law? Minerals management? Reservation law? The overall Eastern bias only makes such ignorance of vital topics more glaring.

  8. Indyanna on 11 May 2010 at 1:04 pm #

    It’s interesting to note that all three women are New Yorkers, with pretty much Manhattanite core career connections. As an outerborough guy (Queens, Nassau, Philly) this is perhaps a source of some ambivalence. No Skowhegan, no Cheektowaga, no Altoona, no Cape May Courthouse, not even any Woodstock or Ronkonkoma.

    As for the symbolic significance across categories and “no going back,” I just saw a very long list of awardees for a prestigious post-doc fellowship, and at a quick eyeball correlation, it appears to skew about 3/4 M, with a few indeterminables. So I guess this prize will remain relevant for a time longer.

  9. Emma on 11 May 2010 at 1:47 pm #

    Which people? The people who insist on appointing exclusively HarvardYale people to the SC, or people who criticize the lack of intellectual and geographical diversity on display in these choices?

    Lack of intellectual diversity? How’s that?

    And what does geographical diversity matter?

    Any of those appointments familiar with Water Court Law? Minerals management? Reservation law?

    Presumably, they’re bright enough to figure out what they need to know for their cases.

    I’m all for diversity on the bench, I think it’s important. I’m not sure why there’s this desire for geographic and/or law school diversity and what would satisfy it.

  10. Historiann on 11 May 2010 at 2:02 pm #

    Concern for geographical diversity on the SC was historically a big issue in presidential nominations. (It’s the one big “diversity issue” on court appointments before the twentieth century, when first religion, and then race, and then sex became considerations.) So an interest in geographical diversity nothing new, and I think cgeye is right that there are a lot of Western issues (for example) that probably aren’t reflected at all in the training of people who attended PrincetonHarvardYale.

    As for the value of institutional diversity: One thing became very clear to me the very first time I was put on a search committee after getting my current job. HarvardPrincetonYale are fine schools, but their History departments aren’t uniformly excellent across the board in every single sub-specialty in History. Do you want a Latin Americanist? Go to U. Texas, not Harvard or Yale. How about public historians–would you believe Cal-Riverside or Arizona State? Borderlands history programs tend to be located in border states like California, Texas, and Michigan. Western history is typically better represented by Western institutions, just as there’s a greater emphasis on Southern history in Southern institutions.

    I’m writing as someone who graduated from two elite Eastern schools (inc. one Ivy, but not HarvardPrincetonYale). I have nothing against northeastern elite schools per se, and I was very well served by them. But the country is a much bigger place than justices from just two or three law schools might perceive from their perch. That’s a lesson I’ve learned in the course of my career moves.

  11. Emma on 11 May 2010 at 3:03 pm #

    Geographical diversity seems to be a more historical issue than a current concern, based on state/federal tensions in a growing nation.

    As for law school diversity, I think it’s widely believed, and not entirely without reason, that top 10 schools, in particular Harvard and Yale who are nearly always 1 and 2, turn out better legal thinkers. So I think you’re not going to get many folks on board with dropping out of the top 10 or – god forbid! – into second tier law schools to pick SCt Justices.

    Top 10 law schools, 2010 according to USNWR:

    1. Yale
    2. Harvard
    3. Stanford
    4. Columbia
    5. NYU
    6. Berkeley
    6. Chicago
    8. Penn
    9. Michigan
    10. Duke

    Not much water law or indian law taught at any of those places.

    Even if you expand to the top 25 law schools, or all tier 1 law schools, I think the assumption that there’s going to be a significant diversity in curriculum/learning from law school to law school is not really correct. I just don’t know that top tier law schools turn out a real variety of lawyers/legal thinkers. Except perhaps U of Chicago turns out more law and economics adherents, for example, and there may be more of an international focus at U of Mich.

    I have nothing against seeking diversity in law school grads for the Court, but only because I think you’re not really going to get candidates who are substantively different. Get ‘em from Harvard, get ‘em from U of Michigan, get ‘em from Penn, they’re pretty much going to be the same based on what people think a SCt Justice looks like, so why not cast a broader net to get your cookie cutter candidates?

    Diversity in life/legal experience after law school probably is a better measure of diversity on the Court. That’s the way to break the cookie cutter, I think. The “law school of origin” argument seems to be a stand-in for the idea of personal, legal practice, and career diversity, to some extent. But people’s practice areas probably are a better indicator of diversity than which top tier law school they went to.

  12. Shaz on 11 May 2010 at 3:06 pm #

    I actually heard a news reporter (MSNBC online, I think)say something to the effect of: She was a great Dean at Harvard. She increased diversity by hiring conservative faculty.

    Don’t know if this was confirmation strategy (she’s great with conservatives so she’ll fit right in!) or what, but found it fascinating how ‘diversity’ has been co-opted.

  13. Emma on 11 May 2010 at 3:13 pm #

    Any of those appointments familiar with Water Court Law? Minerals management? Reservation law? The overall Eastern bias only makes such ignorance of vital topics more glaring.

    Basically, if you want a Water Court Law guy, a minerals mgt woman, or an Indian law lawyer, on the Court, argue for that. Don’t argue through proxies like what law school somebody went to, because law school isn’t going to fix that “glaring ignorance”.

  14. Indyanna on 11 May 2010 at 3:18 pm #

    It goes beyond curriculum, I think, and even beyond the attributed quality of “legal thinking,” whatever that is. These schools all hire faculty from little circles of their perceived “peer institutions,” and the perspective gets pretty stiffling. There’s even a good argument I think for going beyond the judicriocity altogether, or maybe even beyond the legal class itself in shaping the Court. Brilliant legal theoreticians whose imaginations are confined within the parameters of “lines of cases” and the distinguishment of doctrinal nuances sometimes miss the messy empirical realities that are the other side of the law. Team Obama (somewhat) talked a good game on this issue, but in the end, a law review person is probably going to go with another law review person. There are analogies to this, to be sure, in humanistic scholarship of all sorts, and none of us are free of these tendencies toward provincialism.

    I’ll quite draw the line, I’ll say, at Sen. Roman Hruska’s [R. Nebraska?] famous dictum that “mediocre people deserve a little representation on the Court,” but I don’t think that’s likely to be a great risk.

  15. Dr. Crazy on 11 May 2010 at 3:28 pm #

    Not directly related to your post, but I just heard a report on NPR in which Kagan was, in the span of 3 minutes, accused of being “aggressive, confrontational, and aloof” while Dean at Harvard, and then that she got kudos while in that same position for “redecorating the building” and being really nurturing to students – like a “Jewish Mother”. My jaw is still dropped.

    As for the geographical/school diversity issue, I think that it’s probably fair to say that where one went to law school isn’t necessarily the beginning or end of one’s affiliations, interests, points of reference, etc. On the other hand, if the pool is limited to people who went to Law school at the Ivies, that leaves out a lot of folks who might have chosen other schools based on their class background, on cultural expectations that they remain nearer to family, etc. And so, if what we’re looking for is a “diverse” court (in the sense of identity politics), that’s going to mean a court that is heavily dominated by people who grew up in and who remained in big cities in the Northeast, and no, I don’t think that’s a good thing. Somebody joked on NPR yesterday that we don’t have regional diversity on the court – unless having a justice for each of the boroughs of NYC counts as regional diversity. The other person being interviewed then quipped, “I don’t think that we have a justice representing the Upper East Side yet!” Chuckle. I doubt whether most people across America who were listening at that point got the joke, or that they even necessarily are familiar with the way NYC is organized.

  16. Emma on 11 May 2010 at 3:34 pm #

    These schools all hire faculty from little circles of their perceived “peer institutions,” and the perspective gets pretty stiffling.

    Yeah, thats’ true. And I’m certainly overstating the case re: fungibility of Tier 1 law schools.

    But it’s just a mystery to me what people are arguing for when they talk about wanting SCt justices who didn’t go to Harvard or Yale. I don’t think diversity of law school counts for as much as diversity of legal and nonlegal experience.

    I don’t know what you mean by “judicriocity”. I think it’s good to look beyond sitting judges for SCt candidates.

  17. Emma on 11 May 2010 at 3:48 pm #

    that leaves out a lot of folks who might have chosen other schools based on their class background, on cultural expectations that they remain nearer to family, etc. And so, if what we’re looking for is a “diverse” court (in the sense of identity politics), that’s going to mean a court that is heavily dominated by people who grew up in and who remained in big cities in the Northeast, and no, I don’t think that’s a good thing.

    Well, argue for what you want, not for the proxy. If you want a class-diverse, race-diverse, gender-diverse, regional-diverse, sexuality-diverse, Court argue for that not on the “people-X-don’t-go-to-Harvard” proxy. Because at least some people-X do go to Harvard or Yale.

  18. Fratguy on 11 May 2010 at 3:49 pm #

    Emma,
    What kind of diversity in legal/life experiences after law school could anyone hope to have in a career trajectory that would garner the attention necessary for a SCOTUS nomination ? If one looks at the lives and careers of Justices prior to their privileged undergraduate and graduate education (thank you meritocracy) you will see far more diversity before they were co-opted into the legal system.
    As to the value of diversity itself, I challenge regular readers to start listing abjectly incorrect and wrong headed decisions that would not have occured in the absence of geographical and intellectual diversity on the court. I’ll take the low lying fruit with decisions regarding the Colorado River Compact, CA v. AZ which results in the over appropriation of Colorado river water. Not a trifling matter to the intermountain west.
    Anybody else out there in the sciences, humanities arts or medicine feel that the court has botched an issue that you hold dear to your heart?

  19. Emma on 11 May 2010 at 4:20 pm #

    What kind of diversity in legal/life experiences after law school could anyone hope to have in a career trajectory that would garner the attention necessary for a SCOTUS nomination?

    Which is why you argue for diversity on that grounds rather than diversity in law school. Put the attention where it will do the most good.

    Look, there are plenty of decisions that I think are wrong, let’s start with women’s rights and gay rights. But I don’t think you’ve shown that where somebody went to law school matters for those decisions. If male Justices think that women are naturally inferior, do I want a male Justice from a less-renowned law school or a woman Justice from Yale or a woman Justice from a less renowned law school?

    decisions regarding the Colorado River Compact, CA v. AZ which results in the over appropriation of Colorado river water

    What law school would a Justice have to have gone to to produce the “correct” result? Would a patent lawyer practicing out west be better situated to decide the issue than the current sitting justices?

    If you want intellectual diversity, argue for intellectual diversity, fewer prosecutors and more legal aid lawyers appointed to judgeships, for example. If you want knowledge diversity, argue for knowledge diversity, i.e. examine their areas of legal practice. Ruth Bader Ginsburg has a practice background in women’s rights, for example.

  20. Historiann on 11 May 2010 at 5:36 pm #

    Emma–I don’t think anyone is saying that X law schools will produce Supreme Court justices that will give us Y results. But, law schools are part of what mold and shape attorneys and judges. This fascination with HarvardYale or even the top 10 schools looks more than a little intellectually and geographically inbred as well as class bound, as Dr. Crazy points out.

    I take your point about people’s areas of practice after law school being more important than their alma maters. But, isn’t it possible that people graduating from Texas, Boalt Hall, or Colorado might be more inclined to go into some kinds of law than others? (Environmental law, water law, or public service, for example?) It sure seems to me like law schools operate like other academic departments and disciplines: most have areas of specialization that they use to attract certain kinds of students and to produce certain kinds of attorneys. How is it a bad thing to insist that all qualified people be considered, rather than just people from a very narrow pipeline? That sounds too much like an old boys network for my comfort.

  21. Historiann on 11 May 2010 at 5:37 pm #

    But in any case, this is not a post about law schools. It’s a post about Ruth Marcus’s strangely confident predictions about the future for American women.

  22. Digger on 11 May 2010 at 6:34 pm #

    I SWEAR I heard you say Patriarchal Equilibrium…

    I was watching CNN last night and a former colleague of hers from Harvard was being interviewed, who said she’d been a great Dean. She liked to go out for dinner. Yes, I said lolwut? as well.

    3/9 is better than 0, 1, or 2 /9, certainly. And I’ll applaud any move forward, but have no illusions that they are necessarily lasting.

    Yanno, once (if?) women make parity in representation based just on being women, maybe people will notice that we often have very varying opinions on stuff ;)

  23. Janice on 11 May 2010 at 7:29 pm #

    Hey, I remember that “Three is the Magic Number” thanks to my time with “Schoolhouse Rocks” so maybe that’s what has Marcus all exciterbated?

    As long as there is such a tidal wave of interest in the mere prospect of nominating women for these positions, I think we know what our roles are in the cultural circus. Objectification doesn’t have to be all about projecting sex appeal, you know!

  24. truffula on 11 May 2010 at 7:33 pm #

    I happened to be at a working dinner the other day at which I was the only woman, and I think the men were more uncomfortable about the gender imbalance than I was. The new abnormal is a situation where there aren’t a reasonable number of women present.

    Oh gag me. I have no clue what “a reasonable number” means but Marcus, taking care to point out that she has made it into the club and is happy to be the only girl there, clearly thinks she is well suited to make that determination on the rest of our behalf.

  25. Comrade PhysioProf on 11 May 2010 at 7:36 pm #

    Instead of continuing to hire more fuckbag columnists like Marcus, maybe the motherfucking Post should consider hiring a fucking decent editor or two to weed out swill like that absurd “plurality” line.

  26. Ignatz on 11 May 2010 at 8:19 pm #

    I went to a second-tier law school. (14 at its highest ranking.) I had good friends across the river at Harvard Law. You know what? The Harvard Law students were smarter. Not smarter than the top 2 or 3 people at my school, but as a whole, quicker, deeper, and more nuanced thinkers. And they came from all sorts of backgrounds. And their professors seemed better than ours. (I didn’t find this in grad school, btw…the best researchers and/or classroom instructors I knew tended to come from non-elite schools. Go figure.)

    Unrelated point: Since the SCt hears sorts of cases, from affirmative action to water law to cases that don’t make the news, it makes no sense to me to choose a specialist in a particular field of law. I’d prefer a quick, deep, nuanced thinker.

  27. Historiann on 11 May 2010 at 9:09 pm #

    “Marcus, taking care to point out that she has made it into the club and is happy to be the only girl there, clearly thinks she is well suited to make that determination on the rest of our behalf.”

    Exactly!

    Janice, you can watch that “Three is a Magic Number” video on YouTube. For realz. (I always liked that one, although it wasn’t about American history. Good song.)

    Ignatz–what about those top 2 or 3 people at your school? Don’t they deserve a hearing too, or is it OK to just look at grads from two law schools? The dominance of HarvardYale is a relatively new phenomenon–mostly because of the abandonment of geographic diversity in favor of other things (religion mostly, race and sex more recently). Stanford used to be well-represented on the court, for example (William Rehnquist and O’Connor were alumns). Thurgood Marshall went to Howard, because the University of Maryland was segregated. Berkeley was good enough for Earl Warren. William Howard Taft was a Yale undergrad, but his law degree was from the University of Cincinnati. Warren Burger went to night school at the University of Minnesota, and then the St. Paul College of Law. (To be fair, a lot of jerks in court history didn’t attend HarvardYale, and some good guys did, like Harry Blackmun. I’m just pointing out that this fealty to HarvardYale is a new value.)

    But, more importantly, the question is: is everyone happy with what HarvardYale inbreeding has done to the Supreme Court? Has it made for better, stronger decisions, like Gonzales, Ledbetter, and Kelo? Just asking.

  28. Ann Bartow on 12 May 2010 at 8:02 am #

    Thanks for this. I’ve had to stop reading Supposedly Liberal Dood blogs, especially the all Kagan bashing all the time ones. Kagan is a good prospect, in my view. That’s why the criticisms of her are so over the top and without foundation. People who actually know how law schools work are the worst, because they are flat out lying about her. Her writings do express her opinions; she didn’t write many articles because she didn’t teach for very long. Once she became a Dean she was no longer expected to write scholarship (well, at least the male deans aren’t!) and no one in their right mind would affirmatively stir up political controversy while they were a sitting Dean. Deans do not hire faculty members; appointments committees pick the candidates, the faculty votes, and THEN the Dean gets involved, so if Harvard hired mostly white males, credit the white male faculty. Kagan scares the Supposedly Liberal Doods to death, which is one reason I am supporting her.

  29. Historiann on 12 May 2010 at 8:15 am #

    Ann–thanks for your thoughts. I’m glad Obama nominated a woman, but I’m not super-excited about Kagan because she looks so much like Obama: a cipher who’s a brilliant career strategist for herself, but who hasn’t provided much evidence for how she might behave on the court. My guess is that that kind of temperamental (if not political) conservativism and caution can’t be faked–it’s who she is. She knows very well how to conform to the establishment rather than challenge it. (I take your point about Harvard Law’s record of hiring under her leadership, but Deans can also push hires or pull the plug on hires that don’t advance their goals. It sounds like the hiring of conservatives was very much her agenda, and she pulled liberals along with her.)

    She’s undoubtedly qualified and extremely accomplished. I don’t favor applying different standards to her than to male nominees. It’s quite likely that she’ll have a long tenure on the court, so it may be interesting to watch her and read her opinions.

  30. Profane on 12 May 2010 at 8:43 am #

    Obama has chosen someone who is both a friend and, judging from her legal writings, enamored of executive power. As a medievalist, the parallels with Henry II and Thomas Becket cannot help but spring to mind.

  31. Emma on 12 May 2010 at 8:55 am #

    This fascination with HarvardYale or even the top 10 schools looks more than a little intellectually and geographically inbred as well as class bound, as Dr. Crazy points out.

    Absolutely right. I thought about this for awhile on my commute home, and I’m really trying to parse things out in a way that makes sense. Because I’m all for diversity on the bench and diversity in the SCt in particular. So, yes, absolutely expand the pool of potential SCt Justices, look beyond Yale, etc.

    But I’m afraid that it won’t really get you away from the old boys’ network. It IS an old boys’ network which is firmly entrenched in every law school. The winnowing takes place in every law school. Law schools really only pay attention to the “special” students, who then get mentored, paid attention to, SCt clerkships, any kind of clerkships, and so on. The rest of us are just there to pay the bills. It’s just that at Yale, the bennies are so much more fabulous then at, say, Northwestern.

    But nobody gets considered for the SCt just b/c they went to Yale, they have to be those special people at Yale. Kagan’s professional career is a testimony to this system: not just that she went to Yale but that she was that special student that everybody wanted to see succeed. Obama is the exact same person. Just listen to how everybody talks about them. Laurence Tribe says the exact same thing about Obama that Sean Wilentz says about Elena Kagan “He/She was my most specialist student evar!”

    And for me, here’s the real problem: b/c Tribe and Wilentz think Obama and Kagan are super special and deserve good things, it is now incumbent upon us, the people, to make sure good things happen for these people because of their super specialness. Demonstrated competence, demonstrated expertise, demonstrated commitment to values, none of that matters so long as Tribe and Wilentz etc. are willing to tell us how super special these people are.

    Is it progress for women that Kagan gets to be one of those super special people? I guess that depends on how gender, class, race, and super specialness interact. One could argue that Obama, b/c he’s a Black man, needed those testimonials about how he “rose above” his race and Kagan, as a white Jewish woman, needs those testimonials about how she “rose above” her race, religion, and gender.

    Sorry this is so long, and really not on topic. But, in a way, it’s really related to Ruth Marcus who’s clearly happy to be the special one where she’s at. And her being special seems almost certainly to be about being “the” woman who could make it at her job. It’s great to be a super special woman, because you deserve all the good things you get and don’t have to worry about all those women who don’t. Which, I think, is what Marcus is writing about.

  32. Emma on 12 May 2010 at 9:07 am #

    It sounds like the hiring of conservatives was very much her agenda, and she pulled liberals along with her.

    I would suggest that, consistent with Obama’s evident worldview, her agenda was getting the hiring process moving, as there was a hiring logjam at Harvard when she got there. The logjam was ideological, i.e. claims that not enough conservatives were being hired. So, to break the logjam, more conservatives got hired.

    It is an approach which has its problems, for sure.

  33. Historiann on 12 May 2010 at 9:26 am #

    Emma, thanks for your further remarks. I like your connection back to Marcus–as truffula suggested, it’s all about being super-special, isn’t it?

    One clarification: Sean Wilentz’s advocacy isn’t very important, I’m sure, in the minds of the people who will be asked to confirm Kagan’s nomination. (After all, they ignored him pretty completely when he testified against the Clinton impeachment.) But, he was and always has been a big Clinton supporter (Bill and Hillary, that is), and during the 2008 campaign he wrote a lot of very anti-Obama stuff, most of which I agreed with, to the effect that “this is an untested person who’s never been in a fight or taken a stand, so why should we “hope” for the best?” So it’s a bit surprising to me to see him speaking out for Kagan, when Kagan has clearly been very Obama-esque in building her career (playing the concilator, catering to the Right, keeping her commitments vague, etc.)

    This bolsters your point, though, that the old-boys’n’a few girls-network is perhaps the determining factor in all of these high-level appointments. It’s not like every single HarvardYale grad is considered for the SC. Probably only the top 3 or 4 in any given generation of alums.

  34. Ann Bartow on 12 May 2010 at 1:01 pm #

    Maybe Sean Wilentz knows her well enough to think she’d be great. I don’t know her very well but I don’t find her at all Obama-like. She has held real jobs, and done important work while holding them. She’s certainly not a bomb thrower, but I don’t think she is a cipher either. Have you read this?
    http://www.scotusblog.com/wp-content/uploads/2010/03/Regulation-of-Hate-Speech-and-Pornography-after-RAV.pdf

  35. Emma on 12 May 2010 at 1:36 pm #

    Ann,

    I haven’t read it yet, but I will. Thanks for the link.

  36. Indyanna on 12 May 2010 at 6:36 pm #

    I was going to ask about how hiring happens in law schools, because the articles about this nomination had a bunch of that “she hired…” and some stuff about the Chicago dean who “hired” her, so it’s good to get that clarification. I love the fact that she’s said to have forged bridges between faculty factions by opening a lunchroom that served them free lunches, which are not supposed to exist according to some cosmologies! All I know is that it’s not another Bush judge, and for that, I’ll sleep a little better tonight. The purported fixation on a “Scalia-bright” and charismatic progressive judge doesn’t seem to me to get us very far. I had forgotten to notice yesterday that New York City now has FOUR judges on the Court.

  37. Ann Bartow on 13 May 2010 at 4:42 am #

    The fact that she isn’t Catholic (unlike almost all the other Justices) is a boost for religious diversity, for whatever that is worth.

  38. Historiann on 13 May 2010 at 5:51 am #

    Not that much more diversity–she’s Jewish, like Breyer and Ginsburg, so SCOTUS would be 6 Catholics, 3 Jews.

    I personally don’t care that much about confession. I just wish there were more liberal Catholics on the court.