Part 2: How Identity Can Matter in Supreme Court Nominations...

Gender Trap on Slate.com

Citron and Lithwick (as an aside, Lithwick spoke at the Yale Club in DC recently) argue against the use of "empathy" as a criteria for selecting the next Supreme Court justice. To claim "empathy" as a deciding factor is to open the selected judge to gendered critics about their presumed "soft/feminine/weak" will in making judicious judgements in a profession of historic power.

Citron and Lithwick are concerned:
1. "Empathy" is not a tactically-sound move against Republican opponents because it entertains ideas of what makes a "proper" woman.
2. Women should not be favored because of gender differences. They do not go so far as to claim that gender differences do not exist, but they stray close.

The "empathy" code-word is an ill-advised political move and they fully represent the ways in which it has garnered non-critical criticisms from contrarians. For example, when Justice Ginsburg was criticized for claiming that other justices didn't understand the sensitivities that come with being a 13-year old girl (in the pending school strip-search case), commentators claimed that well, Ginsburg had never been a 13-year-old boy either. It was a sort of petulant turn to "well, no you don't understand."

Citron and Lithwick cite the Ginsburg example to, presumably, point out what happens when "empathy" becomes a factor of judgement - especially in the case of women: it allows for counter-arguments based on personality, rather than on analytical skill, acumen, or judgement. Gender difference becomes the point of interest, of attack.

Presuming de facto that "empathy", albeit a terrible Obama code-word for women, can only mean "motherly/soft" sensitivities of the female sex, takes conservatives up on their terms. In Citron and Lithwick's own words: "At the risk of sounding like Chief Justice John Roberts, the notion of difference based on gender merely reinforces more divisions based upon gender."

Besides, denying gender difference in the selection-process poses its own risks. While the 1950s pop/essentialist ideas of womanhood are certainly not helpful in building a case for women in the courts, gender difference should not be understood as immoveable as this. Instead, can gender difference be understood more as a social resource to which not every woman has access just because she is commonly seen to be a woman and has an indescribable feminine X factor, but instead is a social resource evidenced by judicial history? In this context, a man (and not necessarily a man of LGBTQ orientation either) can claim and access gender as a resource that enriches their professional history and their nomination.

There is no reason why this should not be a politically-intelligent strategy: recognizing gender in the nominee's litigious and scholarly history gives the administration that "empathy" factor while answering critic's clamor for more verifiable qualifications than "feeling/sympathy." The empathetic judge, after all, should be one who exercises leadership in the social subjects of concern. If the Obama administration are looking to nominate a female judge because (s)he would provide the judging body of the Supreme Court with knowledge on the material, personal aspects of American everyday life, I can't see why acknowledging her legacy in this realm would be a disservice. The difference I have with Citron and Lithwick is their wholesale rejection of "empathy" as a measuring means.

Of course, I personally believe that "empathy" should not be the bad word it's been made out be, that the Supreme Court can do with more of it. Given that "empathy" has unfortunately been relegated to the realm of the female, and humorously enough, therefore terrible - what I propose is a way to utilize identity in a more actualized manner (and one that enables men/women/LGBTQ/heterosexual/black/brown/white/asian/etc to access any number of identities beyond those with which they are born*).

Future: why not a Vietnamese man nominated for his 'real world/sympathetic' experience as a litigator/promoter of gender rights?


*i know. the biological is not clear cut, the biological can change - but for popular speak, take me up on biological determinism this once.