Le·gal In·sur·rec·tion

In my post yesterday, I noted that Washington Post columnist Ruth Marcus wasn't "buying" the Obama administration spin that Sonia Sotomayor made a "poor" choice of words or misspoke in her speech in 2001 when Sotomayor said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Among Marcus' reasons for believing that Sotomoyor "meant what she said and said what she meant" was that Sotomayor "was deliberately and directly disputing remarks by then-Justice Sandra Day O’Connor that a wise old woman and a wise old man would eventually reach the same conclusion in a case."

To follow up on Marcus' point, here is the language used by Justice O'Connor to which Sotomayor was responding. The differences in approach between O'Connor and Sotomayor are quite startling. O'Connor explicitly rejected the "new feminist" approach which appears to be advocated by Sotomayor.

The language is from a 1991 N.Y.U. Law Review article by O'Connor which appears at 66 N.Y.U. L. Rev. 1546 (sorry, can't find an internet link for it, but you can access it from Westlaw or Lexis)(italics mine):

Just when the Court and Congress have adopted a less sanguine view of gender-based classifications, however, the new presence of women in the law has prompted many feminist commentators to ask whether women have made a difference to the profession, whether women have different styles, aptitudes, or liabilities. Ironically, the move to ask again the question whether women are different merely by virtue of being women recalls the old myths we have struggled to put behind us. Undaunted by the historical resonances, however, more and more writers have suggested that women practice law differently than men. One author has even concluded that my opinions differ in a peculiarly feminine way from those of my colleagues.

The gender differences currently cited are surprisingly similar to stereotypes from years past. Women attorneys are more likely to seek to mediate disputes than litigate them. Women attorneys are more likely to focus on resolving a client's problem than on vindicating a position. Women attorneys are more likely to sacrifice career advancement for family obligations. Women attorneys are more concerned with public service or fostering community than with individual achievement. Women judges are more likely to emphasize context and deemphasize general principles. Women judges are more compassionate. And so forth.

This “New Feminism” is interesting, but troubling, precisely because it so nearly echoes the Victorian myth of the “True Woman” that kept women out of law for so long. It is a little chilling to compare these suggestions to Clarence Darrow's assertion that women are too kind and warm-hearted to be shining lights at the bar....

I would hope that your generation of attorneys will find new ways to balance family and professional responsibilities between men and women, recognizing gender differences in a way that promotes equality and frees both women and men from traditional role limitations. You must reopen the velvet curtain between work and home that was drawn closed in the Victorian era. Not only women, but men too, have missed out through the division of work and home. As more women enjoy the challenges of a legal career, more men have blessings to garner from taking extra time to nurture and teach their children.

If we are to continue to find ways to repair the existing difference between professional women and men with regard to family responsibilities, however, we must not allow the “New Feminism” complete sway. For example, asking whether women attorneys speak with a “different voice” than men do is a question that is both dangerous and unanswerable. It again sets up the polarity between the feminine virtues of homemaking and the masculine virtues of breadwinning. It threatens, indeed, to establish new categories of “women's work” to which women are confined and from which men are excluded.

Instead, my sense is that as women continue to take on a full role in the professions, learning from those professional experiences, as from their experiences as homemakers, the virtues derived from both kinds of learning will meld. The “different voices” will teach each other. I myself have been thankful for the opportunity to experience a rich and fulfilling career as well as a close and supportive family life. I know the lessons I have learned in each have aided me in the other. As a result, I can revel both in the growth of my granddaughter and in the legal subtleties of the free exercise clause.

Do women judges decide cases differently by virtue of being women? I would echo the answer of my colleague, Justice Jeanne Coyne of the Supreme Court of Oklahoma, who responded that “a wise old man and a wise old woman reach the same conclusion.”

This should be our aspiration: that, whatever our gender or background, we all may become wise-wise through our different struggles and different victories, wise through work and play, profession and family." [footnotes omitted]

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Related Posts:
Sotomayor "Meant What She Said and Said What She Meant"
Prominent Constitutional Scholar Warns Of "Stealth Nominee"
Sotomayor's Damned Statistics
Those Other "Unfortunate" Words

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