Ms. Lithwick's thesis and support have several very fatal flaws. The reason why Obama should appoint another female to the SCOTUS, she maintains, is that women have a special ability to judge facts. To support this, Ms. Lithwick points to a very narrow sociological study ["award winning" or not, for those hard science background people, like myself, the results of political science studies are overly subjective and malleable] that says women judges or panels with a woman judge are more likely to rule in favor of the plaintiff in a sexual discrimination case than male judges or an all male panel. This is her sole empirical evidence for her thesis that women judge differently. She goes on further to discuss the importance of experiential diversity for judges.
There is no bigger insult to a judge--any judge--than to tell them that their personal life experiences [especially with respect to uncontrollable characteristics] affect their ability to properly interpret and apply the law. It matters not if the speaker's intent is to flatter or denigrate. The best compliment for a judge is impartiality. Maintaining judicial impartiality and experientially guided judging are mutually exclusive endeavors. A fact which seems to have eluded Ms. Lithwick since taking the MPRE or her law school ethics class.
While I personally agree that Obama should appoint more females on the bench, including the SCOTUS, I do not think that one should be appointed based upon gender. Furthermore, I reject her stereotyping of "crisp" male justices versus "soft" female justices. We [the collective one] HAVE GOT TO get past this mentality. The law should be neither masculine nor feminine. It should be neither white nor black. It should be neither Christian nor Buddhist. It SHOULD be blind. Like Ms. Lithwick and Ms. Ginsburg, it is many people's perceptions that the law is biased and not blind in its application. However, we do not combat such bias with judges who hold mirror biases with some eye toward balancing out the undesired bias. The result is polarity of judicial philosophies/theories instead of a social movement toward equality.
I further reject that women judges do not evaluate cases strictly or "crisply"; terms, which connote and reflect accuracy of thought. I'm sure such an allusion was not Ms. Lithwick's intent, but that is the exact effect of such stereotyping and I, for one, am insulted by it. Furthermore, I believe to my core that Former Supreme Court Justice Sandra Day O'Connor would reject Ms. Lithwick's assertions. I implore her to read actually read and responsibly reference O'Connors message in her book, The Majesty of the Law, specifically chapter twenty, "Women in Judging". There, Justice Day O'Connor discusses how Clarence Darrow once told a group of women lawyers, "You can't be shining lights at the bar because you are too kind."
For your perusal, I have provided a couple choice quotes from the aforementioned chapter to demonstrate Lithwick's blatant bastardization of O'Connor's words.
As judges, we all strive to be dispassionate and objective in analyzing issues, to be impartial and analytical, to be courageous and independent when we resolve a case in a manner sure to be unpopular generally. Women, like men, can and do have all of these attributes...
...So the question remains: Do women judges decide cases differently by virtue of being women? I would echo the answer of another woman judge, Justice Jeanne Coyne, formerly of the Minnesota Supreme Court, who says that "a wise old man and a wise old woman reach the same conclusion."
The softness of women is not what "we" mean when we say we need more women justices. In alleging such a thing, Ms. Lithwick has taken our gender in the profession of law ten steps backwards.
Another flaw in the argument for experientially based judging on the SCOTUS is it ignores a common characteristic of 99.99% of cases that go before the SCOTUS: they are last resort appeals on usually VERY VERY minute and narrow issues of law. Such determinations don't require personal experience, they require a sharp legal mind with a thorough attention to detail.
I will close with a final quote from The Majesty of The Law,
In class or in grading papers over seventeen years, and now in reading briefs and listening to arguments in court for fourteen years, I have detected no reliable indicator of distinctly male or surely female thinking--or even penmanship.
The speaker of that final quote was none other than Supreme Court Justice Ruth Bader Ginsburg. So, the question still remains, what DO you mean Ms. Lithwick?
