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.