Bench Memos

NRO’s home for judicial news and analysis.

Comparative Worth Strikes Back


And Naftali Bendavid and Jan Crawford Greenburg argue in today’s Chicago Tribune that women’s issues are emerging as the major issue to attack Roberts. Exhibit A is a joke he made in a memo about whether a government lawyer could receive an award for women who advance professionally. Roberts said that this would be fine, but added, “some might question whether encouraging homemakers to become lawyers contributes to the common good.” You see, this Roberts fellow made a funny about lawyers, not housewives, but those who kneel at the altar of Our Lady of Perpetual Gender Discrimination are too humorless, or else too obtuse to see it that way.

The rest of the evidence the authors cite for Roberts gender insensitivity is largely a rehashing of issues like comparative worth that Ed Whelan has ably crushed on this page. The one claim I had not seen is that Roberts opposed an initiative offered by some states to charge women lower tuition than men—something Roberts called presumptively unconstitutional. (While gender-based scholarships may accomplish the same goal through less-direct means (which, I would add, raises similar concerns), his assessment is correct, particularly given that this opinion was written pre-Grutter.) As Doug Kmiec points out in the article, on all these issues–comparative worth, differential pricing, etc.—there is a simple defense: he was right.

I agree with Ed and others on this page that we should welcome a fight based on issues like comparative worth. The problem, of course, is that it is always easier to distort and smear than it is to give a reasoned explanation. It only takes the feminist cabal a few words to say “He hates women; he opposes equal pay,” but explaining why that is a fabrication takes at least a good sentence. If the public pays attention long enough to listen to (or, perhaps more accurately, if the media actually covers) the actual debates, then we will do fine in spite of Schumer’s circus-like antics. If, however, public exposure is limited to sound bites on the evening news or in opposition ads, then the debate will be much less fruitful.


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