Nothing More Than FeelingsConflating judicial empathy with gender is bad for both women and the law.

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Women may be tempted to support this "women are different" trope and eagerly embrace that canard that women are more empathetic than men. That's a mistake. It opens the door to criticism that, as a class, women are diverted by stray feelings and relationships and that, as a result, they somehow lack rigor and seriousness. When Justice Ruth Bader Ginsburg argued that her colleagues don't share her "sensitivities" or, more recently, when she accused them of a failure to understand what it's like to be a 13-year-old girl who has been subject to a strip-search, she wasn't implying that women are more able to put themselves in someone else's shoes than men. Stuart Taylor got it exactly upside down when he wrote earlier this week that "if Ginsburg's statement means anything, it means that a strip-search might be more traumatic for a 13-year-old girl than for a 13-year-old boy. How would she know that? Unlike her colleagues, she has never been a 13-year-old boy."

Ginsburg never pretended to have been a 13-year-old boy. She makes no claims to having supernatural powers of empathy toward 13-year-old boys. She merely says that her colleagues have no idea what it is to be a 13-year-old girl, and they should acknowledge that as a deficit in their understanding in cases about them.

Women need to avoid the temptation to claim that they bring some special superjudicial quality of sensitivity to the bench or that it's somehow natural for women judges to be empathetic while it's equally natural for men to be dispassionate and reasonable. What women do bring to the courts are diverse views and experiences, and that is more than enough. It's enough to say that the court lacks women. It's a mistake to say women will necessarily increase the court's capacity for empathy.

The women on Obama's shortlist have distinguished themselves through their accomplishments and their intellects and have not been placed on the list because of their capacity to feel deeply. And when anyone goes down the road of claiming that such deep feeling is an across-the-board female trait, they are subtly prodding a woman nominee into embracing that trait as the essential qualification for becoming a justice. It's a trap.

The landscape for the politics of Supreme Court appointments is in transition, if not transformation. Just as Obama's election has prompted questions about whether we have entered an era of post-racial politics, this nomination appears to be ushering in the prospect of a post-gender judiciary. It's about time. The number and qualifications of the five current women nominees is unprecedented. Justice Sandra Day O'Connor was a relatively unknown appellate court judge before President Reagan nominated her to become the first female justice in 1981. When Ruth Bader Ginsburg was elevated from the D.C. Circuit to the Supreme Court 1993, she was one of only 23 women judges on the federal court of appeals. Today there are more than twice that number.

It has taken nearly three decades since Justice O'Connor's appointment for this unprecedented moment for American women. It would be a cruel—and unnecessary—irony if the politics of this nomination emphasized not that the women nominees were just as able as their male counterparts but that they were selected precisely because they were kinder, gentler, and nicer than them. Nobody would dispute that we need a more diverse, more representative, and, yes, more empathetic Supreme Court. But let's not push any one nominee into the sinkhole of becoming the "feelings" justice. Most especially not a woman.

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