Thursday, November 08, 2007 - Posts
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A nice point, Emily, about the dangers of looking at Sandra Day O’Connor through pink-colored glasses. You’re right to say that there are heaps of women judges who don’t employ O’Connor’s Miz Fixit hospital-corners jurisprudential style. Ruth Bader Ginsburg included. But I don’t think that makes the corollary—that O’Connor’s approach had some uniquely female qualities—false. There’s been some interesting legal scholarship on the point, starting with an article by Suzanna Sherry in 1986, trying to link up O’Connor’s legal opinions to Carol Gilligan’s Different Voice paradigm of women as accommodating and problem-solving and “relational.”
Sherry’s premise has taken a beating in subsequent years, often from feminists pointing out that this kind of thinking is marginalizing to women and celebrates passivity and niceness in all the ways I probably did in my first post today. Needless to say, Ginsburg’s addition to the court also undermined the Sherry thesis. But I stand by my conviction that some of the qualities I most admire in O’Connor are qualities I largely associate with women. Doesn’t mean Ginsburg is manly by the way. Doesn’t mean O’Connor’s ability to foster agreement and forge deals wasn’t also informed by her time in the Arizona state legislature. But I do think—and O’Connor would hate me for writing this—you can’t separate her gender from her jurisprudence as neatly as you may like.
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Dahlia, Emily—Do you really believe there is a female style of judging—pragmatic and non-ideological—and that O'Connor embodies it? Doesn't Ginsburg operate from a clear set of principals—do you constantly wonder where she'll come down before an opinion is released? Hasn't the Bush administration put forward female judicial nominees who have clear ideologies and records that reflect them? As with many people, their strength, in O'Connor's case her practicality and ad-hoc approach, is also their weakness. She ended up not standing for a clear set of principals, so has a weak legacy. Isn't that style simply intrinsic to O'Connor and not sex-linked?
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The man is a nut magnet, as we can tell in just a glance at today's front page of The New York Times.
Above the fold: the former mayor with his new best friend Pat Robertson, who is not taken seriously by any evangelicals I'm aware of.
Below: Former Giuliani BFF Bernie Kerik is to be indicted today on charges including tax fraud, corruption and conspiracy. (And as the paper notes, "Charges could complicate the presidential campaign of Mr. Kerik's friend, patron and former business partner Rudolph W. Giuliani, a Republican, whose mentorship was partly responsible for Mr. Kerik's sharp ascent into prominence.''
Not shown in photo: Another of Rudy's peeps, Alan Placa, a man Rudy considers "one of my closest friends'' - and hired after he lost his job as a priest over multiple allegations of sexually abusing kids.
All of which makes me suspect that inviting his wife Judi to sit in on cabinet meetings might not be Giulini's worst idea.
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Another thought: If O'Connor's pragmatic, this-case-only approach to judging is particularly female, then maybe that helps explain why male commentators tended to excoriate her for it. I don't think this explains all the frustration with her jurisprudence—as you say, Dahlia, she drove you (and me and plenty of other women) crazy sometimes, too. But it did feel to me that she elicited a sort of scorn from some male academics that seemed awfully pointed in a world in which politesse is usually de rigeur. (Must be that cafe au lait I just drank.)
On a grumpier note: I don't miss O'Connor because I keep encountering her in recent books about the court. In Jan Crawford Greenberg's book, O'Connor is there to tell us that she stepped down when she did because Justice Rehnquist asked her to—an account that hardly squares with her record of forthright independence, and which Rehnquist can never confirm or deny. And then in Jeffrey Toobin's book, O'Connor is full of regrets and distress about the bad end she thinks President Bush ended up coming to. Maybe I should find this refreshing, but it mostly strikes me as depressing—far too little, too late from one of the justices who gave us Bush v. Gore.
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I miss Sandra Day O’Connor.
I always forget how much I miss her until I see her talk, as I did yesterday, at a conference at the Law Library of Congress on the need for competent counsel. The conference was co-sponsored by the Constitution Project. The justice was in a wheelchair as a result of a hip injury—“a temporary deficiency” is all she would say.
O’Connor gets more and more O’Connorish each time I see her. And there is something so honest about her approach to her years at the court—as a great big work-in-progress with no certain answers and no definite solutions—after all the bombast and nastiness of last term. “It’s hard when the Supreme Court gets into a new area and tries to articulate a new principle,” she said, describing Strickland, the 1984 opinion she authored that set the standards to determine whether a lawyer had provided competent representation. Describing “so many questions today” that have caused the courts to re-examine the Strickland test, she said, again, that the issue is “very hard.”
She even went so far as to say she wished for a magic wand that would permit a few jurisdictions in the United States to experiment with the British system, in which both prosecution and defense lawyers are paid for from the same public purse. “One day a lawyer is a prosecutor for the state, and the next day he does defense work," she explained. The benefit? A new level of courtesy and understanding for having handled both sides and some much-needed parity in the quality of representation. “I’d sure like to see us take a look at that,” she says. “I don’t know. It’s a thought.”
A magic wand? The need for courtesy? “It’s hard.” And that dismissive “it’s a thought.” The inevitable sense you get is that she was kind of winging it at the court, throwing solutions against that constitutional wall and hoping to solve some problems. I know it drove her critics (and me) crazy sometimes. But with the court sounding more and more like it’s comprised of the nine smartest-kids-on-the-debate-squad each year, it’s refreshing to hear someone confess that they were just trying to be fair. A particularly female approach to judging? I don’t know. It’s a thought.
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