It's just too bad we'll still need your help, kid.
Michelle Goldberg’s article about Ruth Bader Ginsburg, “Feminism’s Last Line of Defense,” makes the point that she’s the last (and sadly, probably will remain the only) Supreme Court justice who was famous for her feminist work and who was present at the creation of Second-Wave feminism’s important revisions of American law. (For more on Ginsburg, see this terrific interview with her in the New York Times last July. What a savvy politician, too–do you see how she makes the points she wants to make, no matter what questions she was actually asked?) Goldberg writes:
As co-director of the ACLU’s Women’s Rights Project in the 1970s, Ginsburg was a central figure in a string of cases in which various kinds of sex discrimination were ruled unconstitutional. She was famously clever in choosing cases in which discriminatory laws hurt men—one of her cases involved a widower father who couldn’t collect social security benefits available to widowed mothers, another challenged an Oklahoma law that let women buy low-alcohol beer at age 18, while men had to be 21. Presented with victimized men, justices had a way of suddenly comprehending the perniciousness of sexism. Her work resulted in many of the protections later generations of women would take for granted.
Indeed, that’s one reason we’re unlikely to see someone like her again. Ginsburg was seared by personal experiences of sexism, while her work has helped insure that later generations of women would be spared similar injustices. As one of nine women in her Harvard Law School class, she was asked by the dean how she could justify taking a place that would have gone to a man. Justice Felix Frankfurter refused to hire her as a clerk because of her gender. As a law professor in the early 60s, she hid her second pregnancy because she was afraid it might endanger her job.
Goldberg’s point about Ginsburg’s generational perspective is an important one, but I think she is a bit too much of a whig historian here when it comes to the slings and arrows of outrageous sex discrimination being a thing of the past. No, Harvard’s Law School dean probably won’t demand justification from women students for taking the place of men in their classes–but in part because of the heroic work by Ginsburg and her peers in desegregating professional schools, that’s not where the playing field for sex discrimination is any longer.
My radicalization–and that of my students, past, present, and future–came after college and professional education, when I first entered the job market. It was only in my late twenties and early thirties that I witnessed and experienced blatant discrimination on the job. Unfortunately, my guess is that the majority of women considered for appointments to the Federal Judiciary for the foreseeable future will have stories like Ginsburg’s to tell about their experiences in their 30s, 40s, and beyond, not about their time in law school or on the job market, but rather at the point when they have or adopt a child and find their careers mommy-tracked against their will, or at the moment they learn they won’t make partner, or that they won’t get that circuit court appointment because of that law review article they wrote that referenced approvingly something Catharine MacKinnon wrote. This is a point that Goldberg’s article makes even more explicitly–that engagement with feminist legal activism or scholarship is seen as much more controversial today:
Though Obama is in many ways more liberal than Clinton (ed. note: You wish!), it’s hard to imagine him nominating someone like Ginsburg. Unlike Sotomayor, who has no real paper trail on abortion or other contentious gender issues, Ginsburg had a long, public record as an advocate for sexual equality. It’s amazing to remember that in 1993, only three Republicans voted against her confirmation—as polarized as the Clinton years were, things are far worse today. A record as a feminist champion is far more likely to hinder than to help future Supreme Court candidates.
Right. . . we don’t need feminism any longer because everything is totally equal now (yay!), and yet somehow it’s divisive if we invoke feminism or engage in a feminist analysis of the present. How can something be both irrelevant and unnecessarily divisive? I suppose feminism will be seen that way unless and until it’s accepted as one of the great social justice movements of the modern era, instead of as a consumer item that falls in and out of fashion. As Echidne wrote last spring:
[N]o other social justice movement is EVER criticized for not being funny enough or sexy enough. No other social justice movement is EVER expected to sell itself in the way feminism is expected. It’s as if feminism is a new pair of shoes or something; an item women can easily do without, an item they might not be able to afford (because the societal costs of being a feminist can be considerable). So the movement must sell itself, I guess.
You know, the American Civil Rights movement of the 1940s-1970s didn’t have much of a sense of humor either, and a lot of people would say that the anti-Apartheid movement of the 1980s took itself a little too seriously as well. I personally have always thought Gay Rights activists threw the best demonstrations–now there’s a social movement that knows how to have fun!
Historiann 
“I personally have always thought Gay Rights activists threw the best demonstrations–now there’s a social movement that knows how to have fun!”
Now, now — Don’t be jealous of our boogie.
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Right. . . we don’t need feminism any longer because everything is totally equal now (yay!), and yet somehow it’s divisive if we invoke feminism or engage in a feminist analysis of the present.
Yeah. Exactly.
You haven’t come a long way, and you’re not a baby. (Or a junior member of the order Aves.)
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You historians will probably hulksmash me for being so wrong on this, but amirite that the scorched-earth SCOTUS nomination battle scenario was started by Democrats with Bork?
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CPP–I think you’re right that the Bork nomination opened the era of total warfare in judicial nominations. But, witness the easy and acrimony free confirmations of Justices Ginsburg and Breyer in 1993 and 1994 respectively, both of which came on the heels of the circus surrounding Clarence Thomas’s confirmation and of the failed Bork nomination. (And, both Ginsburg and Breyer were bona-fide liberals–no doubt about it.) Now, Congress was still run by Dems through 1994, so that also has a lot to do with their ease of confirmation.
I think Goldberg is correct that the tone changed considerably in the past 15 years. I say it’s mostly due to the Republican takeover of Congress, 1995-2007, by the particular brand of rightist Southern & Southwestern Republicans whose style is overheated to the point of scorched-earth. But you’re correct that it was the Dems–led by Teddy Kennedy–who initiated the era of dredging up every Law Review article and everything a nominee had ever said or done on the public record for hearings that were essentially ideological cage matches.
And GayProf: I’m always jealous of your boogie! That of your peoples, as well as of you personally.
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Now do I get an honorary history PhD?
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As much as I love Justice Ginsburg, this is the NYT interview in which she says (top of page 4 as it’s divided) that abortion is a mechanism for controlling “growth in populations that we don’t want to have too many of,” which scares me.
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Here’s the relevant discussion in the interview: “Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.”
I don’t see that as her endorsing the control of growth in “populations that we don’t want to have too many of.” I read that as her analysis, given the timing of Roe and all of the concern in the late 1960s and 1970s with zero population growth and environmental anxieties about population pressures on the planet. She’s saying that she was surprised by the ruling outlawing Medicaid funding for abortions. But, I agree that her use of the pronoun “we” is a little disturbing, and leaves the quotation open to interpretation.
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“How can something be both irrelevant and unnecessarily divisive?” Whatever it takes to get whoever is talking about it to stfu 😦
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Yeah, Digger: Like that’s gonna happen!
One of the awesome things about being an old broad is that I don’t care any more if people like me or not. Far too much of my youth was spent in catering to others’ expectations rather than just being myself.
Oh, and CPP: no Ph.D. for you! We’re not the Nobel Peace Prize committee–you actually have to EARN it here, friend.
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If Bork was the first really divisive modern judicial nomination, Lani Guinier was where the gender/racial stuff became obvious. And yes, I know she was nominated for Att’y general, but it became toxic to have thought seriously about issues of equality.
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Susan–great point. I think you’re right that Guinier’s nomination (for Assistant Att’y General for Civil Rights, actually) was a turning point in these nominations. She had the misfortune to be qualified for the job and had a long record of academic work on the subject of civil rights.
What a shame that Clinton didn’t fight for her more, and send the message that congress couldn’t mess with his nominees. And this was with a Democratic-controlled Senate (and House, too. If I recall correctly, this came on the heels of the controversies of filling the top spot at Justice, with the “nanny problems” of Kimba Wood and Zoe Baird.) Clinton faced defections from Dems even before he was inaugurated.
My bet is that Clinton himself probably wishes that he had fought harder for Baird or Wood, given the problems Janet Reno created for him!
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There is possibly one precedent-setting confirmation case before Guinier’s or Bork’s: Lyndon Johnson’s 1968 appointment of Associate Justice Abe Fortas to replace Earl Warren as Chief Justice. Strom Thurmond and other Senate conservatives grilled Fortas before the Judiciary Committee and ultimately filibustered the nomination and prevented it from coming to the floor. (Fortas withdraw from consideration for the position afterward.)
According to Rick Pearlstein’s _Nixonland_ (which I love!), Fortas was the first sitting SC Justice to appear before Congress. Moreover, Thurmond’s sensationalist, culture-war line of questioning seems precedent setting; he asked Fortas about his rulings in particular obscenity cases (hard to win political points in the public’s eyes defending the free-speech rights of pr0n0graphers) and challenging his work on state’s rights grounds. The stall worked long enough that it was Nixon who appointed the next Supreme Court Justice, Warren Burger, in 1969.
I don’t know if Senators in the 1980s remembered this battle from the 1960s–although Thurmond, Kennedy, and others had been around then–but it does seem to foreshadow some of these later fights.
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But John, Fortas did have some real problems of a non-ideological nature that slowly peeled away his potential support among “Rockefeller” Republican types and led to the withdrawal of the nomination (by Johnson, not the nominee). According to the Senate Historian’s website, Fortas, as a justice, was meeting regularly at the White House and sitting in on executive branch deliberations (an obvious separation of powers problem), and was believed to be giving Johnson details of ongoing Court deliberations (not sure that this latter phenomenon didn’t happen in other administrations, maybe FDR’s). The killer came when it was revealed he had received a “stipend worth 40% of his regular annual salary” which had been privately raised, to teach a summer course at George Washington University. Johnson, the site says, a “seasoned vote counter,” believed he had just enough support to beat a fillibuster, before this last disclosure. The nomination did come to the floor on the Judiciary Committee’s vote, and Johnson initially intended to let it go to a vote so that Fortas would achieve a majority even after he knew he couldn’t get the necessary votes for confirmation. A year later, it was revealed that Fortas had a private agreement to receive $20,000 a year from a financier with a federal conviction record, and he resigned from the Court.
If it was Thurmondian reaction that sunk Fortas, the payback came soon enough, with the Senate votes not to confirm two successive Nixon nominations, both very conservative Southern federal judges with explicitly awful records on Civil Rights issues, early in 1970. This was what put Harry Blackmun on the Court. There was doubtless more historical connective tissue between the Fortas and Bork fights than we may remember now.
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How can feminism be considered both irrelevant and divisive or threatening at the same time? I can’t speak for anyone else, but back in my days as a staunch conservative, I basically thought that if women had achieved practical equality, the only reason for a continued feminist movement was that feminists considered women naturally superior to men and that they wanted to set them up in a ruling position over men. In hindsight, this wasn’t a terribly well-informed opinion (to put it mildly), but it was sincerely held at the time. I have no idea if many conservatives believe this, but it wouldn’t surprise me if some of them do.
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Michelle Goldberg should definitely be given the honorary ‘Whig of the Month’ award. I am tired of being told the fight against sex discrimination is a battle that’s been won. Especially since I read your post right after reading this from The Guardian –
“The Guardian’s annual survey of boardroom pay found that only one in 15 boardroom seats in the FTSE 100 are occupied by women, who mostly hold part-time roles as non-executive directors. Only 22 women are involved in the day-to-day running of companies out of hundreds of men.”
I think the problem now is that many of the sources of sex discrimination are deeply systemic (so deep, people often don’t even recognise them for what they are). That means improvement is going to take a much more fundamental reform of our society and culture as a whole, and not simply changes to legislation.
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Bavardess–I considered awarding Goldberg the Whiggie, but since she (like most of us) agrees that having a feminist jurist on the SC is important, I didn’t have the heart. The thrust of her article is one I agree with, so I laid off. (Not that she would know or care, I’m sure, but I want to reserve the Whiggie for the totally clueless or the actively malign.)
Paul, I really appreciate your insights. I think what you say about believing that feminism = female superiority is what I hear from a lot of people as to their ideas about feminism. I think there are a lot of people who only see/hear popular representations of feminism, and without a broader understanding and context, I can understand why people interpret it that way.
I think it’s telling, too, that a lot of people can’t imagine real sex equality. (This is true not just of conservatives, but they’re more likely than liberals to be honest about it). In many people’s minds, there always has to be a hierarchy, either male or female superiority, never the erasure of hierarchy.
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Historiann, I think you conceded too much to CPP. It’s true that the Bork nomination in 1987 marked the first use of scholarly writings to attack a candidate in confirmation hearings. But boy did the Reagan White House start it.
For lower-court nominations, I mean. A team of Federalist Society lawyers hunted the country for ideologically reliable lawyers and judges to install in judicial vacancies. And they invented the practice of killing a lot of recommendations from Democratic senators, which in the past would have been honored out of comity and courtesy. (Or the good ol’ boys club. Whatever.)
Combing through old law review articles to yank statements out of context seems troubling, but compared to what? Kennedy and his staffers found a transparent way to resist a nominee on ideological grounds … in contrast to the ideological backroom maneuvers that had been going on for six years.
I think Sheldon Goldman covered the issue in his book about presidential input into federal court judicial nominations, but I’m not sure.
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LadyProf–thanks for the additional intel on the Reagan years. I am about as far from a 20th C U.S. historian as one can get and still be a North American historian, so I humbly bow to those with expertise in this field.
I didn’t know the Federalist Society was operating in the 1980s, but of course, it makes sense that it would probably have been a reaction to Civil Rights, the Warren Court, and the like. (Just guessing–perhaps you know more.)
Republican presidents have recently been much more aggressive when it comes to stacking the judiciary. I don’t know why Dem presidents haven’t made it a priority–I suppose because there’s no countervailing organization like the Federalist Society to advocate and do the homework for them.
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Great post!
On not seeing gender discrimination and so on for what they were — I am guilty and have been moreso, despite always having claimed feminism.
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Z–me too (the guilt.) In all cases that I can remember, it was a defensive move to prevent me from thinking that it could happen to me, too. (I learned quickly that it could, and that there was nothing I could do about it.)
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I may have been sloppy re: dates–should be more careful at a history blog! I believe the Federalists were afoot inside the White House right from the start, i.e. January 1981, even before their Society got incorporated; but their vetting operation might not have been firing on all cylinders until around 1983 or 1984. (Like many other feminists, I’m giving my oppressors the benefit of the doubt.) Still, it began WELL before Bork. I remember Daniel Patrick Moynihan announcing that he would vote no on Bork because the White House, for no stated reason, had been killing his nominees for federal court vacanies in New York.
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Republican presidents have recently been much more aggressive when it comes to stacking the judiciary. I don’t know why Dem presidents haven’t made it a priority–I suppose because there’s no countervailing organization like the Federalist Society to advocate and do the homework for them.
Given what I saw coming from some quarters during the 2008 primary, I’m not so sure I’d want a self-selected group of Democratic activists doing this.
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Truffula: hah! Well, if it makes you feel any better, stacking the judiciary is harder than it seems, since people who are poised to join the federal judiciary are pretty smart, seasoned, and independent-minded. So many recent prominent jurists–like Justices O’Connor, Souter, and Stevens, haven’t turned out to be nearly as conservative as the presidents who nominated them had hoped they would be.
Being appointed to the federal judiciary or the Supreme Court is like the ultimate senior academic appointment with tenure–nominators have to just hope for the best, because there are no do-overs.
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I think the Supreme Court is on the quarter system, though, Historiann. (Or maybe the Oxbridgian system). Starting about now and going up through late June. Clerks to do the basic preliminary sorting and grading, like post-docs in a science lab. And the Court sessions I guess are like your basic oral comprehensive exams from hell–for unprepared counsel, anyway. Then off to Jackson Hole or the Maine coast for three months to rest up. Just like my annual routine, only different!
Put Harry Blackmun down as another justice who went rogue on his nominator, re Roe v. Wade, Callins v. Collins (dissent, death penalty), Stanton v. Stanton (rejecting gender as a basis for age-of-majority), dissent in Planned Parenthood v. Casey, etc. etc.
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Even though Sotomayor appears to be a moderate, I still have the vain hope that Obama will nominate a frank liberal to replace the frankly liberal Stevens if he retires next year. With luck, this could also be a feminist justice.
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