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April 15, 2009

I Feel Stupid... and Contagious

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

- Barack Obama

Perhaps Obama is our first woman president, after all:

Obama is a female candidate for president in the same way that Bill Clinton was the first black president.

It was Toni Morrison who first had the insight. In a 1998 essay in the New Yorker, the Nobel Prize-winning author described Bill Clinton as "the first black president," commenting on his saxophone playing and his displaying "almost every trope of blackness."

Obama doesn't play the sax. But he is pushing against conventional—and political party nominating convention—wisdom in five important ways, with approaches that are usually thought of as qualities and values that women bring to organizational life: a commitment to inclusiveness in problem solving, deep optimism, modesty about knowing all the answers, the courage to deliver uncomfortable news, not taking on all the work alone, and a willingness to air dirty linen. Hillary Clinton, on the other hand, is taking a more traditional (and male?) authoritarian approach.

Certainly his criteria for selecting judges betray a refreshingly non-traditional approach:

Debate has raged for decades about whether there is something unique about women's jurisprudence. A 1986 study of O'Connor's opinions published by Prof. Suzanna Sherry, now at Vanderbilt University, saw evidence of a "feminine jurisprudence … quite unlike any other contemporary jurisprudence." The argument is often built on the groundbreaking work of psychologist Carol Gilligan, whose 1982 book, "In a Different Voice," claimed that female moral reasoning differs from that of males. Men, the theory goes, prefer their law with rigid rules, clear lines and neutral principles; women prefer to look at the totality of the circumstances and favor what Gilligan calls an "ethic of care" over an "ethic of rights."

Sacre bleu! This is brilliance! What rational human being prefers so-called 'rights' to 'an ethic of care'? And who among us hasn't secretly longed for tangible demonstrations of affection from their nearest Article III jurist?

But wait! It gets even better!

So, for example, feminists argue that O'Connor's preference for flexible standards regarding abortion (or for nonbelievers in cases about religion) reflect a softer, more "relational" approach to the law, while Justice Antonin Scalia's emphasis on unchanging rules and crisp legal principles is, fundamentally, a guy thing.

Empirical studies on gender and judging so far have been inconclusive. But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex-discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, they examined whether male and female judges rule alike, and whether the presence of a woman on a panel affects the behavior of her male colleagues. Here's what they found: male judges were 10 percent more likely to rule against alleged sex-discrimination victims, and male judges were "significantly more likely" to rule in their favor if a woman judge was on the panel.

Because Epstein, Boyd and Martin were only studying sex-discrimination cases, it's unclear whether their data would hold true in cases where gender was beside the point. Still, its intriguing that male judges rule differently when they're sharing the bench with a woman: it suggests female moral reasoning—if such a thing exists—might be contagious.

There are times when the Editorial Staff has to wonder what is funnier? Is it feminist assertions that in a professional setting, women are interchangeable with men because we "Are too!" just as rational, logical, disciplined, and strong as our male counterparts? Or their oxymoronic claims that discrimination robs society of the uniquely female contributions women bring to the table while they're doing their jobs in exactly the same way men do (except for that whole "being guided by entirely subjective feelings rather than law and logic" thing, doncha know").

As much as it pains us to agree with Dahlia Lithwick, judging by the disparate treatment afforded this justice versus this justice, she may have a point about that 'contagion' thing:

The questions from students were read to Justice Thomas, and the first one seemed to throw him off. “Since the Civil War, what has changed the way Americans view the Constitution the most and why?” an unidentified student asked.

Justice Thomas gave a rambling response, touching on the Fourteenth Amendment, the rights of freed slaves, the application of parts of the Bill of Rights to the states and Justice John Marshall Harlan’s dissent in Plessy v. Ferguson, the 1896 Supreme Court decision that endorsed the doctrine of “separate but equal.”

“I’m sure there are other things that have happened,” he said, wrapping up his answer. “So I would have to say just off the top of my head the Fourteenth Amendment. And I bet you someone’s going to hear that and say, well, no, it’s the dormant commerce clause or something.”

That was a curious aside. Few Americans could name the dormant commerce clause, and it has no obvious connection to how popular views of the Constitution changed after the Civil War.

You have to love the Times. If the facts don't happen to conform to their enlightened world view, a bit of creative writing is usually sufficient to smear a bit of Vaseline on the camera lens of history.

A female justice who, in a breathtaking display of feminine jurisprudence, asserts that judicial review provides an essential curb to the murderous instincts of representative government?

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Who could have a problem with such eminently sensible and restrained views?

A male justice implying the dormant Commerce clause made possible the virtual obliteration of the federalist system originally outlined in the Constitution?

Preposterous. And totally unreasonable, to boot:

... I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers.

Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of economic activity thereby ensuring that virtually any activity can be aggregated to produce the "substantial effect [on] interstate commerce" required to legitimate congressional regulation under United States v. Lopez and United States v. Morrison; by making it easier for Congress to impose controls on even non-economic activity by claiming that it is part of a broader regulatory scheme; and finally, by restoring the so-called rational basis test, holding that "[w]e need not determine whether [defendants'] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding."

... The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents.

Clearly, Thomas is making this Commerce clause nonsense up out of whole cloth. What a maroon:

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce.

... If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

Thank Gaia for the coolly dispassionate analysis of Adam Liptak and Dahlia Lithwick. One shudders to think how a nation bereft of their sage commentary might fall for the seductive wiles of power mad conservative jurists who believe the Constitution reserves to the People certain inalienable rights which even our Camembert-slinging European overlords cannot rip untimely from their bitter, gun-clinging hands.

Justice Thomas' blatantly irrational prose makes us long to dip our toes for just an instant in the cool waters of feminine jurisprudence!

Ah. That's better.

Posted by Cassandra at April 15, 2009 07:55 AM

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You know, Barack Obama is a man, and probably not a metrosexual either. Perhaps he just said those things to get....votes?
It happens.

And now, we leave the Gulf Coast, and head back to the grim, tedious Midwest.

Oh, the pain. :)

Posted by: Don Brouhaha at April 15, 2009 09:45 AM

Don, you ignorant slut:


Posted by: Ron White's Bratty Little Sister at April 15, 2009 09:59 AM

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." --Our Fyrst GLBT teen mom president, Barack Hussein Obama.

He is so empathetic! He truly is *all*.


Posted by: Cricket at April 15, 2009 10:00 AM

How about the empathy to understand what it feels like to be a businessperson in an era when businesspeople are being demonized? Or a student who wants to pursue a military career on an anti-military university campus?

The thing that gets me about Obama & his friends is how utterly rigid and predictable their thinking is. They have certain categories into which they put reality, and are simply not interested in those aspects of reality that don't fit the categories.

Posted by: david foster at April 15, 2009 10:01 AM

david, they are the change we hoped for! Their vision is clearly clouded, their stands are firmly rooted in the shifting sands of situational ethics!

How DARE you make sense!


Posted by: Clue-bat carrying Cricket at April 15, 2009 10:06 AM

How about the empathy to understand what it feels like to be a businessperson in an era when businesspeople are being demonized? Or a student who wants to pursue a military career on an anti-military university campus?

Hey.... you're not one of them right-wing whackos, are you???

Posted by: Janet Napolitano at April 15, 2009 10:09 AM

Truthy tables being what they are, particularly when I ONE's androgyny peeks out from behind the TotUS, I would request VENN diagrams in order to keep overlapping attributes distinguishable, PLEASE!

On second thought... Never mind!

After that, I think I'm going in search of a Brillo-pad for the cerebrum and a Vodka Martini to lubricate the scrubbing action. And super-size the Vodka Martini… Puh-leeze.

Anyone know how things are on the gulf coast, aka the Redneck Riviera?

Posted by: Ron White's third cousin, twice removed, once repossessed at April 15, 2009 11:01 AM

"Hey.... you're not one of them right-wing whackos, are you???"
*Hides super-sized Vodka Martini behind back, looks around and points finger at self*

Ah, who *hic* me, Ms. Nep-Röhm-Putsch-Al-atano? Your ad-hocness?

BTW, can I call you Al?

*promptly falls into car -unfortunately it's not a convertible with the top down...*

Posted by: RiteWhang-Legionnaire at April 15, 2009 11:03 AM

Able: "Whose * is this?

Baker: "Mine. I worked hard, sacrificed free time, took risks and gave up other opportunities for it. I earned it."

Able: "Well, maybe. We'll have to see how I feel about that, and also see who else would like to have it. Maybe I'll decide it would be nicer if somebody else had it. I'll let you know."

* insert as appropriate: money, house, job, college admission slot . . . .


Posted by: Joe Doakes at April 15, 2009 11:45 AM

It's mine,.

Posted by: Tax Man at April 15, 2009 11:56 AM

How did the state that spawned Barry Goldwater elect Janet Fargin' Napolean, uh, Neopolitan, er, Napolitano as Guv?

Arizona is largely populated with people who are those whom she feels we should fear! Does anyone else look at her and think "Janet Reno's little sister"? Why would parents name two of their daughters "Janet"?

Don't mind me. It's the frappuccino talking. I gave them up for Lent, and the bloodstream can't quite take the shock yet.

Posted by: MathMom at April 15, 2009 12:59 PM

You know, I was a teen mom - my eldest daughter was born my senior year in high school. And judging by his behavior, President Obama has NO IDEA what it was like to be me. Or why I am what I am now.

I think it's because I'm not what those of his thought category think I should be now, namely bitter and crying out for someone to fix my problems for me.

Posted by: airforcewife at April 15, 2009 01:04 PM

Heh. I was, too. Tragic.

Posted by: Cassandra at April 15, 2009 01:09 PM

You know, Cass, I pointed the teen parent thing out to someone I was having a civil discussion with about this sort of issue and all civility went out the window.

Their thought was how DARE I judge someone else who didn't do well after having a child in high school! Not everyone is capable of pulling themselves up by their bootstraps, you know!

I mean, there was red-in-the-face anger over the fact I would presume to say, "But I did it. Without welfare. It's possible, if you take responsibility for your decisions."

It's the heart of the problem, I think. Yes, my earlier life was more difficult because I made the choice - or rather, the series of choices - that led to having a child at such a young age. On the other hand, I put myself in that more difficult position in the first place. So what business had I to ask someone else to bail me out of it?

Consequences. It's what SHOULD be for dinner. Good and bad ones.

Posted by: airforcewife at April 15, 2009 01:48 PM

IMO, it's not a question so much of judging them, but of wondering how smart it is to prevent someone who is already making dumb decisions from ever seeing that... duh! .... dumb decisions have consequences :p

How do you ever learn if you're not smart/careful enough not to make the mistake in the first place and then everyone covers for you the rest of your life? Close encounters with reality have an odd way of correcting a dysfunctional world view.

Posted by: Cassandra at April 15, 2009 01:57 PM

As I have already told SWHNOB many times in her young life, "If you make ten mistakes before getting it right, you've learned eleven things." (Unless you insist on doing the same thing over and over, each time expecting to get different results, for that is the realm of the insane and intellectually incompetent.) But, of course, that is only relevant to those who wish to learn and grow.

*waiting anxiously for Ms. Cricket' and her 'Quit Making Sense' clue bat*


Posted by: DL Sly at April 15, 2009 02:41 PM

"....I was having a civil discussion with about this sort of issue and all civility went out the window.

I'm thinkin' they'd heard about the 'family mushroom'....


*skipping away through the trees and breeze*

Posted by: DL Sly at April 15, 2009 02:46 PM

Sigh. So despite my having two X chromosomes, my preference for reason over emotion as a way to solve problems and my desire to accept responsibility mean I'm not really female, according to the academics. Or I guess that would be, I may be female (sex) but am not really a woman (a gendered construction of the current social norms).
Pfooy! [stomps foot, has hissy fit] I am too a girl! I am, I am, I am!

Posted by: Armed and fluffy at April 15, 2009 03:06 PM


If I weren't so logical, rational, and fully-equal I'd... I'd...


Posted by: Cassandra at April 15, 2009 03:10 PM

"I may be female (sex) but am not really a woman (a gendered construction of the current social norms)."

You poor dear! You have obviously been horribly disenfranchised by the despicable McChimpyBushHitlerburton! Rise from the muck of the Oppressor's dire plot to keep you downtrodden in a perpetual state of confusion. Embrace your true nature and live the rest of your days basking within the glow of Wymynhood!

Posted by: Princess Angelina Contessa Louisa Francesca Banana Fanna Bo Besca the Third--but you can call me Dot at April 15, 2009 03:36 PM

mushroom *grumble grumble* nasty *grumble grumble*

Posted by: airforcewife at April 15, 2009 03:42 PM

OMG. That destroyed me.

Posted by: Cassandra at April 15, 2009 03:42 PM

Sly and AFW, STOP IT!!


My ears! My brain! It is being forced into thinking and my heart has dried up! I can't feel anything!!!


Teen moms can and do make successes of themselves. Having a tremendous support system is supposed to correct the behavior, not enable it. Welfare is only going to enable this.

Posted by: Cricket at April 15, 2009 04:31 PM

How many *whack*s does it take to get a spd rdr and Thong Jockey to show up in the comment section?

The world may never know.

Posted by: DL Sly at April 15, 2009 04:41 PM

Change *whacks* to lickings...

Posted by: Cricket at April 15, 2009 06:44 PM

Which of these is not like the others:

"poor, or African-American, or gay, or disabled, or old?"

Posted by: Philip at April 16, 2009 11:25 AM