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Think Again: Sex and the Single Justice

SOURCE: AP/Evan Vucci

Homeland Security Secretary Janet Napolitano has been mentioned as a possible choice for the Supreme Court.

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Recently CNN’s Lou Dobbs asked why Jeffrey Toobin’s list of potential Supreme Court nominees was made up entirely of women. Toobin responded, “[M]ore than half the law students in the United States are now women. Almost half the lawyers in the United States are women. There’s only one out of nine justices on the Supreme Court who are women. I think President Obama, who believes in diversity, thinks it’s time to even out the balance a little bit more.”

Dobbs piped up: “Are you talking about the death of meritocracy on the court?” Toobin was forced to explain to his colleague, Dobbs, that “diversity is not the opposite of meritocracy.” Toobin is right, but unfortunately many in the media have been having so much fun obsessing about the personalities and sex lives of the potential nominees to address the question of their respective qualifications.

Earlier this week, a shortlist of six alleged frontrunners leaked to the press. None of the contenders are openly gay—Pamela Karlan and Kathleen Sullivan, two early favorites who are, were not on the list—but that did not discourage punditocracy pontification regarding the alleged sexual proclivities of two in particular, Elena Kagan and Janet Napolitano. According to The Advocate (and confirmed by some quick googling), “several blogs have suggested [Elena Kagan] has a female partner and that her sexual orientation is an ‘open secret’ at Harvard Law School.” Janet Napolitano has stated publicly—multiple times—that she is indeed straight, because, well, it appears to matter people. In an article at Slate (and the new doublex.com), Dahlia Lithwick and Hanna Rosin pointed out that “nobody has offered any proof, except that she is unmarried. Which seems to make everyone think: lonely, misfit, or lesbian.” They wrote:

None of this is surprising. Think of all the single, childless women in positions of prominence who have been "rumored to be gay." Janet Reno, Harriet Miers, and Condoleezza Rice, for starters. The very-much married Hillary Clinton is practically the only one who can proudly, casually say that she marches in Gay Pride parades, although rumors that she was a lesbian have dogged her, too, for decades.

Another potential nominee, Sonia Sotomayor, is also facing speculation about her personal life. In “The Case Against Sotomayor,” Jeffrey Rosen made unsubstantiated claims that the potential nominee was a “bully.” He also wrote that “because Sotomayor is divorced and has no children, her clerks become like her extended family—working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier [sic] of a Harry Potter movie.” Lithwick and Rosen responded to this odd anecdote: “A woman who surrounds herself with young, paid employees late into the night has a faint air of scandal and desperation about her or, at the very least, of being something short of a fully realized woman.”

“Something short of a fully realized woman.” The phrase calls to mind, a conversation between Bill Moyers and Kathleen Hall Jamieson in December of 2007 about the language that was being used to describe Hillary Clinton during the presidential primary.

Jamieson: Why shouldn’t you vote for Hillary Clinton? Well, first, she can’t be appropriately a woman and be in power. She must be a man. Hence, the [web]site that says Hillary Clinton can’t be the first woman president; Hillary Clinton’s actually a man. But also explicit statements that suggest castrating, testicles in lockbox. She’s going to emasculate men. It’s a zero-sum game in which a woman in power necessarily means that men can’t be men.

Moyers: And you can’t use your uterus and your brain. That’s the old argument, right? You can’t be caring and tough. That’s the old argument against women, right?

Jamieson: At one time there was actually an argument that if women became educated, they would become infertile. There was also, for a long period of time, serious penalties for women who tried to speak in public. And the residue of this is a language that suggests that women in power cannot be women and be in power. And as a result, as Hillary Clinton certifies herself as being tough enough to be president, competent enough to be president, these attacks say then she can’t be president because she’s not actually a woman. And you can’t trust someone who is that inauthentic.

Recently, Ruth Bader Ginsburg offered an example of an instance in which one’s gender might actually be considered a useful judicial qualification for the next justice. Regarding a case involving a strip search of a 13-year-old named Savannah Redding, Ginsburg said of her benchmates, "They have never been a 13-year-old girl…. It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood."

There she goes again with the empathy, that elusive liberal quality Obama has said he’s looking for.

Update: George Will, Environmental Reporter

George Will is back on the environmental beat, which means his editor is again playing defense. In chat with The Washington Post readers, Will’s multiple error-laden, self-plagiarized columns came up as follows:

Boston: Would you care to address the whole George Will global warming column controversy? Is there any concern that lax standards for accuracy hurts the prestige of The Post opinion page more generally?

Fred Hiatt, The Washington Post editorial page editor: Happy to, because we don’t have lax standards for accuracy. He addressed the factual challenges to his column in detail in a later column. In general we do careful fact checking. What people have mostly objected to is not that his data are wrong but that he draws wrong inferences. I would think folks would be eager to engage in the debate, given how sure they are of their case, rather than trying to shut him down.

Note the use of the word “careful.” In fact, while the paper has copy editors, it does not, as far as anyone I know knows, have any fact-checkers. And it was not the “inferences” to which people objected, but the stuff he simply made up. Recall it was The Washington Post itself whose actual reporters noted, “The new evidence—including satellite data showing that the average multiyear wintertime sea ice cover in the Arctic in 2005 and 2006 was nine feet thick, a significant decline from the 1980s—contradicts data cited in widely circulated reports by The Washington Post columnist George F. Will that sea ice in the Arctic has not significantly declined since 1979.” And as to who was trying “to shut him down,” Hiatt wouldn’t and presumably couldn’t say.

Will returned the favor on May 3 on ABC’s This Week, where he claimed that the Prius is only affordable because Toyota “sells it at a loss, and it can afford to sell it at a loss because it is selling twice as many gas-guzzling pickup trucks of the sort our president detests.” Naturally, George Stephanopoulos said nothing to contradict him, and just as naturally, Will recycled the point for his Post column on May 7. But according to Treehugger:

Toyota and independent analysts say the Prius is a money-maker for Toyota, and it has been since 2001. As we noted last week, Toyota and Honda, though both struggling in the recession, are making about 300,000 yen (US$3,100) on each hybrid they sell, a number similar to what they are making on gasoline-only cars, according to Japan’s Nikkei…. For years, the research and development costs that Toyota poured into its flagship hybrid car had kept it from earning true profits, something that it sought to quietly play down. While the company still doesn’t reveal exact figures, financial analysts have backed up the company’s claims…. Ultimately, the Japanese automakers profits from hybrid cars can’t be completely verified. But that doesn’t mean they aren’t making profits — and evidence suggests they are, and increasingly so.

Just what those apparently invisible Post “fact-checkers” are doing on the days this intrepid environmental reporter is on the case, remains, at the time of this writing, a matter of mere speculation. Washing their pickups, perhaps?

Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College. He is also a Nation columnist and a professor of journalism at the CUNY Graduate School of Journalism. His seventh book, Why We’re Liberals: A Handbook for Restoring America’s Most Important Ideals was recently published in paperback. He occasionally blogs at http://www.thenation.com/blogs/altercation.

Danielle Ivory is a reporter and producer for the American News Project. She lives in Washington, D.C.

This column was recently named as a finalist in the category of “Best Commentary—Digital” for the Mirror Awards. The series of columns judged can be found here.

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