Real women do not separate their emotions from their reason. This is the central feminist insight propounded by legal commentator Dahlia Lithwick in a recent New York Times op-ed on Justice Sandra Day O’Connor. Lithwick’s op-ed demonstrates yet again that there are no more faithful proponents of the Victorian view of women than modern-day feminists. If Lithwick’s analysis of echt female consciousness is correct, no president who cares about the rule of law should ever contemplate putting another woman on the Supreme Court.
Justice O’Connor has a big problem, according to Slate editor Lithwick: She didn’t act as a female justice should. She was “curt,” “unsentimental,” “tart,” and “heartless.” As a result, O’Connor a “huge mystery to most women” of Lithwick’s generation. For example, asks Lithwick: “How could someone who blew open doors for generations of women . . . show so little empathy to female victims of violence in the 2000 case of U.S. v. Morrison?” Lithwick’s question rejects everything that law stands for; it deserves to be scrutinized in close detail.
U.S. v. Morrison addressed the constitutionality of the 1994 Violence Against Women Act. The federal act had imposed fines on perpetrators of “gender-motivated violence.” Predictably, Congress had justified the law by invoking its power to “regulate commerce among . . . the several states.” In other words, according to the law’s supporters, sexual assaults were economic activity that affects interstate commerce.
For decades, the Supreme Court had winked at such ruses, allowing Congress to legislate on pretty much anything it wanted to, regardless of whether the activity in question had any plausible connection to the economy. In 1995, however, five years before Morrison, the Court had finally called a halt to the charade. U.S. v. Lopez struck down a 1990 law that had criminalized the possession of a gun near a school. Possessing a gun is in no sense “economic activity that might have a substantial effect on interstate commerce,” the Court declared.
U.S. v. Lopez all but compelled the decision in Morrison. The Violence Against Women Act had nothing to do with interstate commerce or any sort of economic enterprise; it was rather Congress’s effort to show sensitivity to women–already protected against sexual assault by state criminal law. O’Connor correctly voted with the majority in striking down the act.
Depends What Your Definition of “Empathy” Is
Legal pundit Lithwick makes no effort whatsoever to address the constitutional question of Morrison; such trivialities are beneath feminist notice. In her view, O’Connor should have upheld the Violence Against Women Act for a much simpler reason: Because she was a woman. Or, to be more precise, because O’Connor had blown open “doors for generations of women after her.” In what passes for reasoning in Lithwick’s world, being a “feminist pioneer” on the Supreme Court means that you possess and act on “empathy to female victims of violence”–though what date rape, say, has to do with advancement to the Supreme Court remains a mystery.
Here’s Lithwick’s “logic”: 1. As a legal pioneer, O’Connor should have empathy for female victims of violence. 2. Having empathy, she must rule in their favor and uphold the act.
In other words, it is the sympathetic identity between a judge and an alleged victim that compels constitutional decisions, not anything having to do with the Constitution itself.
This argument would be scary enough in its own right, reducing the law as it does to a question of tribal loyalty. But it contains a corollary that is even more disturbing. By Lithwick’s reasoning, if you rule against a plaintiff, it means that you don’t have empathy for him. “How could [O’Connor] show so little empathy to female victims of violence?” Lithwick asks. But O’Connor undoubtedly does have “empathy” for female victims of violence. Like any good judge, however, she is able to separate her emotions from her logical thought. Constitutional analysis does not ask: Is this a sympathetic victim? It instead asks: Is there a constitutional basis for this governmental assertion of power? One may have empathy for a plaintiff, and still be compelled to rule against him.
Feminist jurisprudence, however, explicitly rejects the realm of reason. Legal analysis, feminist law professors teach, is just a smokescreen. The law really is a power grab by white heterosexual males to silence the “voices” of women and minorities. Or, as Lithwick writes in the New York Times: Law is a “man’s game.”
This dismissal of legal thought mocks our constitutional framework. If emotion and group identity are the main drivers in every branch of government, having a constitution is pointless, since it will never constrain political will. The Founders believed otherwise, and drafted a Constitution in the conviction that it would set enforceable limits on government power.
Thank Goodness Alexander Hamilton Wasn’t Alexandra
The Founders, of course, are dead white males, and thus irrelevant. Lithwick has a different agenda in mind for judges, at least of the female persuasion: Their mission is multicultural social engineering. In another indictment of O’Connor, she asks: “How could someone who so embodies minority advancement not use her new power to pull everyone else up with her?” Among that “everyone” that Lithwick has in mind is Christopher Simmons, a ruthless teen murderer. Simmons had burgled a woman’s home, covered the woman’s head in duct tape and bound her limbs with electrical wire, and tossed his victim into a river where she drowned to death. Bragging to his friends about the murder, Simmons explained that he had intended to kill because “the bitch seen my face.”
By now, it would be foolish to expect consistency from Lithwick, but one does wonder what happened to Lithwick’s empathy for “female victims for violence.” Lithwick has shifted her attention, however, to teenage victims of the death penalty. She criticizes O’Connor for failing to show “empathy” for such victims in Roper v. Simmons, decided this March. Justice Anthony Kennedy held that Christopher Simmons could not be executed for the murder he committed at the age of 17, because juvenile death penalties offended the country’s “evolving standards of decency.” O’Connor properly dissented from Kennedy’s opinion, pointing out that there was no evidence that public opinion had turned against juvenile executions since the Court had upheld them in 1989.
Again, however, even if O’Connor had bizarrely felt “empathy” for Christopher Simmons, that empathy is irrelevant to deciding whether a juvenile death penalty is constitutional or not. And substituting subjective feeling for objective analysis may not be a wise strategy for death penalty opponents, since some judges at least–if not death penalty opponents themselves–might feel more empathy for the victims of death row inmates than for the inmates.
Yet for all her anger at O’Connor’s failure to behave like a proper female judge, Lithwick manages finally to forgive her. Despite O’Connor’s “conservative roots,” Lithwick explains, “it’s somehow impossible for me, both as a woman and as a lawyer, to stay mad at her.” (Note the blithe assumption that being “conservative” is ordinarily cause for anger.) It turns out that O’Connor has in fact been acting properly of late: “Try as she may, she can’t suppress an inner softie,” observes Lithwick. That “inner softie,” naturally, manifests itself in the great touchstone of feminist jurisprudence: “empathy.” O’Connor has been showing “empathy for the outsiders, the disadvantaged, for those who feel coerced of shamed.” How does Lithwick know about O’Connor’s inner feelings? Because her rulings favor alleged victims of white male patriarchal society. And in the dangerous world of feminist jurisprudence, feelings and legal decisions are indistinguishable.
Several conclusions follow ineluctably from Lithwick’s article. First, it is reckless to dismiss the nonsense that goes on in the academy. Lithwick’s worldview faithfully reproduces the feminist legal theories that have held sway in law schools for more than a decade. (Lithwick proudly describes her Stanford law classmates as “almost 50 percent women–black, Hispanic, gay, and disabled women among them.” Such “identity” traits are the most salient aspects of the self for left-wing legal theorists and multiculturalists of all stripes, since they allow one to claim victim status vis-à-vis white, heterosexual, able-bodied men. Being Asian, even an Asian women, apparently doesn’t count. Were there cardiologists, Mozart scholars, or hedge-fund managers among Lithwick’s Stanford classmates? Lithwick doesn’t say because such accomplishments are of no interest compared to one’s racial or gender identity.)
One might think that such a worldview would disqualify anyone from serious commentary on the law, but Lithwick is an influential legal analyst, appearing regularly, in addition to her Slate writings, on National Public Radio, and other venues.
Second, there are no greater hypocrites around today than feminists. They claim moral superiority to men, while at the same time demanding to be regarded as indistinguishable from men in every regard. Undoubtedly, Lithwick would soundly reject the possibility that men and women possess unequal mathematical and scientific skills at the highest reaches of genius–a suggestion that nearly cost Harvard President Larry Summers his job–even as she implies that women are not encumbered by any distinction between logic and feeling.
Finally, there are no greater impediments to women’s progress than feminists. Lithwick’s description of the ideal female Supreme Court Justice is a powerful reason to keep women off the court. If President Bush insists on a gender quota for justices, let’s hope Lithwick is as ignorant about women as she is about legal reasoning.
–Heather Mac Donald is a fellow at the Manhattan Institute for Policy Research.