Does Being A Woman Matter To Kagan?


“Elena Kagan might very well be the first female nominee to the Supreme Court who does not define her gender as salient to her public life,” argues Naomi Schoenbaum in The New Republic. Is that true? And if so, why?

Schoenbaum cites some convincing evidence that Kagan, at the very least, has avoided discussing what being a woman has meant in her life, if it has meant anything at all. When she has written about gender-related topics like pornography and sex discrimination, she has “focused on doctrinal or procedural issues, rather than substantive questions related to gender equality.” The same was true of her work in the Clinton Administration, and in her speaking engagements:

On these occasions, she has concentrated on the data and avoided statements about sex discrimination. In discussing gender disparities in the law, she has focused on women’s choices, such as how women opt to “move around in different areas” rather than aim for “the pinnacle,” and how “many of the issues that women face in the workplace are issues for men as well.”

As with all things Kagan, it’s impossible to know whether such indicators rise out of her supreme discretion or a simple absence of passion about or philosophical identification with a given issue. In the former case, it jibes with the Kagan-as-organization-kid theory first suggested by David Brooks. Kagan is described in his original piece as “extraordinarily – almost artistically – careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.” Brooks wrote,

What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.

The system also punishes overt discussions of personal experience with discrimination — just ask Sonia Sotomayor, who dared to discuss the ways that being a Latina and a woman affected both her life experience and her jurisprudence.

It’s also eminently possible that Kagan genuinely doesn’t think that being a woman has shaped her life and politics in any significant way — though if true, probably the nomination experience has changed her mind.

Or maybe just a lifetime appointment, a point at which the approval of others is no longer necessary. A point at which, maybe, one is free to discuss the way things are. Such as the statistic, gleaned from a new study, that elite female lawyers at law firms make an average of $66,000 less than their male counterparts. Per Newsweek: “The biggest contributing factors, according to the study’s authors, are not nearly as benign: they include stereotyping, gender bias, and even bullying and intimidation.”

Even Female Law Partners Suffer Wage Disparities [Newsweek]
Post Gender Justice [TNR]

Earlier: Softball Is For Lesbians And Other Kagan Close Readings
Friends, Peers Testify That Elena Kagan Is Not A Lesbian

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