“Pick A Chick”?

I have asked several times, most recently here, “according to what criteria does the court need more gender ‘diversity’ than Justice Ginsburg provides?” (And for an example of Sen. Specter’s fine legal mind at work on this issue, see here.)

Now comes Dahlia Lithwick of SLATE to answer my question. (Just because she doesn’t realize it’s my question doesn’t mean it isn’t.) In “Pick a Chick,” she explains, contritely, that she “was wrong” when she

rejected the arguments that minority candidates serve as proxies for minority views (whatever those might be), or that they create the appearance of a court that “looks like America.” … We need another woman on the Supreme Court. And while we’re at it we need a few more women on the Senate judiciary committee.

Now I admit that, at first glance, Ms. Lithwick’s justification of her newfound support for nominating another “chick” to keep Ginsburg company appears frivolous. That’s because her justification actually appears to be no more than the need to keep Ginsburg company. Thus she writes:

… in a speech at Wake Forest University, Justice Ruth Bader Ginsburg joined her colleague Sandra Day O’Connor and first lady Laura Bush in calling for a second woman on the high court. And while she qualified her words, her message was clear: “I would not like to be the only woman on the court,” said Ginsburg.

Although I would take no pleasure in disappointing Justice Ginsburg, I’m not sure it’s worth bending the principle of non-discriminatory equal opportunity (or even the hoary old meritocratic principle of picking the person you think is best for the job regardless or race or sex) so that she can have some female companionship.

But that response was based on a first glance. After reflection following a close reading, I now think that Lithwick’s pick-a-chick justification is not only frivolous but somewhat opaque. She attempts to graft the “critical mass” “diversity” theory put forward with unfortunate success by the University of Michigan to the process of judicial selection, but in my view this attempt is based on false premises and falls flat.

Her premise (faulty in my view, as I’ve said) begins with “the ways in which gender politics are starting to infect our discourse about the courts.” By way of example Lithwick points to what a bunch of meany white males have said about Sen. Dianne Feinstein’s pathetic performance attempting to grill Judge Roberts (even Lithwick agrees it was pathetic), especially her heart-on-her-sleeve plea to talk to her “as a son, a husband and a father.” Why, Lithwick asks accusingly, was there

Never a mention of Biden, Schumer, Mike DeWine, and Dick Durbin’each of whom similarly deployed the language of hearts and feelings in their questioning of Roberts….

First, of course, let me proclaim my own innocence. I am, no doubt, one of the meany white males, but at least my own version of the meany white male criticism Lithwick derides was not restricted by sex, including as it did Sen. Biden.

The real question for Lithwick here, however, is … So? What is your point? Here, in its entirety, it is:

… I do wonder why it became so very easy to blast only the woman who wanted to cut through Roberts’ repeated claims to be a lean, mean law-making machine. I wonder why the woman who worried about his aloofness and disconnection from poverty or suffering was singled out for derision. Is it because the stereotype of the pathetic, whiny, “but how do you feel” nag fits so much better if the asker is wearing curlers and a housecoat? Is it a cynical effort to paint all women as hysterics or merely all Democrats as women? Or is it, in the end, the consequence of having only one woman on the committee?

I’m sure it’s just an accident that Fein, Steyn (weird name-coincidence or conspiracy?), and George Will each singled out only Feinstein as their judiciary committee poster-person for the strange quest-for-feeling that characterized the Roberts hearings. But it certainly evokes something Ginsburg mentioned in her remarks yesterday at Wake Forest. According to the report, she noted that “she started in law school in the 1950s,” a time when law students and law practitioners were predominantly male. She said she felt pressure to excel, to break the stereotypes about women. “You felt like all eyes were on you. If you gave a poor answer in class, you felt like it would be viewed as indicative of all female students.”

Imagine being judged and ridiculed as a lightweight, when — as sole representative of your gender — you feel you must defend the achievement of all women. The solution for both Ginsburg’s problem and Feinstein’s is simple: Give the critics more targets. Load up the courts and Congress with enough women, and then maybe blaming them for being women in the first place will stop sounding like a legitimate critique.

So, “critical mass” comes to Court turns out to amount to little more than keeping Ginsburg company after all. In fact, it’s even considerably less than that, for a reason Lithwick cites but does not appreciate. She quotes the following pregnant (if you’ll pardon the expression) statement from Justice Ginsburg in her Wake Forrest address:

“First and foremost should be the quality of the nominee, both as a judge and as a human.” But [Ginsburg] added: “Yes, it would be nice to have another woman on the court, but not any woman.”

Heavens, no! Not a Janice Rogers Brown, for example.

Give Ginsburg her due for demanding quality, but then ask her, and Lithwick: Would you really prefer a conservative woman (who, after all, really would add some “diversity”) or a liberal man as the O’Connor replacement?

I know, I know. They would say, “But the choice is not between a conservative woman and a liberal man. It is between a conservative woman and a conservative man.”

True enough (I hope), but their preference for a liberal man over a conservative woman — if they had their druthers — undermines the entire rationale of the pick-a-chick position.