It now seems almost a given that when the president talks about "empathy," what he really means is "woman." In fact, Obama seemed to mean several things when he stated that empathy would be a dominant factor in selecting his nominee to replace Justice David Souter. He hastily signaled his intention to nominate a woman, simply in that five of the six nominees on his shortlist are women. But he also has gone out of his way to explain that empathy means the ability to put oneself in someone else's shoes. Obama has stated that his ideal justice would consider the lives of the ordinary people who will be affected by the court's decisions in addition to the formal requirements and logic of the relevant laws.
The feeling that the Roberts Court is in need of more empathetic justices has only ramped up since this week's decision in AT&T v. Hulteen, which upheld the rights of companies to give less retirement credit for pregnancy absences before 1979 than for medical leave generally. It's grown tempting to look at the current Supreme Court and attribute its general lack of judicial compassion for victims of all stripes to the underrepresentation of women on the bench. But the very instant we begin to argue that women are different on the bench, we open the door to criticisms that women are unfit to be there.
At the risk of sounding like Chief Justice John Roberts, the notion of difference based on gender merely reinforces more divisions based upon gender. It suggests women should be judged by different criteria and enables attacks upon a woman based on the fact that she either fails to measure up to men or is somehow untrue to her own gender.
Consider, for starters, the code words being used by conservatives to attack prospective women nominees. Some objections to the not-yet-named nominees have intimated that a candidate is or may be gay or has an unusual family life. Such objections imply that no "proper" woman would want to serve on the high court. Consider, also, the questions raised by Jeff Rosen over Judge Sonia Sotomayor's close relationship with her law clerks (accompanied by the explanation that this is due to the fact that she is divorced and does not have children). Rosen's article may mark the first time the idea of the law clerk as "extended family member" has been used to marginalize a federal judge. When men treat men as family, it's honorable. When women do, so it's pathetic.
In a similar vein, consider the fierce attacks on prospective OLC head Dawn Johnsen, whose confirmation has bogged down over distorted 20-year-old claims that she once equated pregnancy with slavery. Nobody believes for a moment that this has any bearing on her capability to run the Office of Legal Counsel. It's a thinly disguised effort to suggest that any woman who opposes pregnancy is a monster.
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.