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Worst Week inWashington
The Fix’s
By Chris Cillizza
Washington, as it always does, provid- ed much fodder over the past seven days for the inaugural edition of the Fix’s Worst Week in Washington — which honors, so to speak, that person, place or thing that had the most terrible, hor- rible, no good, very bad week. There was $100 million man Albert
Haynesworth, the Redskins’ “star” defen- sive end, whose no-show at the team’s voluntary minicamp helped fuel the nar- rative that he is persona non grata not
B
KLMNO
only among his teammates but league- wide.
And, of course, the ongoing oil spill de- bacle in the Gulf of Mexico had any num- ber of culprits, from the obvious (BP) to the less obvious (the Minerals Manage- ment Service, the federal agency that oversees offshore drilling). But in the end, they were all in a race for second place. Rep. Alan Mollohan, a West Virginia Democrat who was defeat- ed in Tuesday’s primary, was our run- away selection. Mollohan had held his state’s 1st Dis-
trict since 1982 — you read that right — and his father had represented it for the
14 years prior to that, all the way back to 1968. Ah, dynasties. But a lingering shad- ow of ethics issues had weakened Mollo- han’s standing, and the bitter anti-in- cumbent sentiment throughout the country didn’t help. It’s not that Mollohan wasn’t warned. A
poll two months before the primary showed that he was vulnerable, but the in- cumbent chose not to heed alarms from national Democrats. He was rewarded for that approach with a 44 percent vote total against a little-known state senator. Alan Mollohan, you had the Worst
Week in Washington. Congrats, or some- thing.
Have a candidate for who had the Worst Week in Washington? Write in to Chris Cillizza’s political blog at
6washingtonpost.com/thefix
SUNDAY,MAY 16, 2010
Rep. Alan Mollohan (D-W.Va.)
DALE SPARKS/ASSOCIATED PRESS
Justices Ruth Bader Ginsburg, left, and Sandra Day O’Connor are mothers.
We don’t need a court of our peers
elites from B1
CONFIRMATION HEARING PHOTOS: LEFT, ASSOCIATED PRESS, 1993; RIGHT, ASSOCIATED PRESS, 1981
A court where moms rule
mothers from B1
lives; they just made it work. The women of a younger generation who stand on their shoulders, Sonia So- tomayor and, if confirmed, Kagan, are single and have no children. That’s not a judgment, just a fact, a line or two not found on their extraordinary bios. If Ginsburg is the next justice to step down, the court could be transformed into a body with no mothers — other- wise known as people who know what it’s like to come home from work and spend a night picking lice out of a kid’s hair. For women and their climb toward social and economic parity, is this a sign of progress or a setback? And for the country and its Constitution, would more mothers on the bench change the way the laws of the land are interpreted? “Personal experiences are important, and they shape people’s backgrounds, but there are a range of ways you can in- form understanding without living it,” says Deborah Rhode, a Stanford Univer- sity law professor and a leading scholar of legal ethics and gender. “Do we want to suggest that men can’t understand . . . the challenges facing working mothers and related issues?” Well, no, we don’t, certainly not out
loud. The memories of the distinguished
gentlemen from Arizona, Utah and South Carolina haranguing Sotomayor at her Senate confirmation hearing last summer are too fresh. I, for one, am grateful that no one has turned up any record of a Supreme Court nominee say- ing, “I would hope that a wise working mother of three, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” The howls would be deafening. Women in general are more “socially compassionate” than men, says North- western University social psychology professor Alice Eagly, citing her analysis of decades of research on gender differ- ence in decision-making. As legislators, lawyers and judges, women are some- what more likely than men to favor what we call, irritatingly, “women’s issues,” generally child care, reproductive rights, sex discrimination in the workplace, education and health care. But differences between mothers and non-mothers? “Interesting question,” Eagly said in an e-mail. “I don’t know of any studies on this question of mother- hood and decision-making.” It seems sensible to imagine that a woman who has juggled it all — the full- time job, the kids, the housework, the aging parents — has a deeper and more instinctual grasp of the challenges fac- ing similar women. Michelle Obama, a Princeton and Harvard Law grad like
Kagan, now living in the White House with a guy who watches “SportsCenter” to chill, frequently tells her audiences of women various versions of “Look, I get it,” to loud cheers. Perception bias bedevils us in all kinds of ways, so it’s too bad there is no data to examine whether a mother is a better judge for other mothers. But it’s hardly surprising. Examining mothers vs. non-mothers would open a whole new front in the mommy wars; the PhDs who conduct research on gender differ- ence are often women themselves, with little appetite to pick that fight. And besides, there are bigger prob-
lems. The research on mothers in the workplace focuses on equity, and the conclusions remain dismaying: greater discrimination against mothers than women in general, and a 5 percent wage penalty per child, according to a study published in the American Journal of Sociology.
“So Elena Kagan might have had a ca- reer advantage,” Eagly suggests, and So- tomayor, too, “not merely in terms of not devoting time to motherhood, but not being subject to the motherhood penal- ty.”
F
or nearly two decades, women have made up close to half of law school graduating classes, but the
partnership rate for women at the na- tion’s major law firms is stuck at about 18 percent. A big barrier is “the maternal wall,” a persistent set of assumptions that devalue women in the workplace when they have children, says Cynthia Calvert, a former partner with now- defunct Miller, Cassidy, Larroca & Lewin in the District who went part-time while raising her two children. Once a hard- charging lawyer becomes a mom, she will slack off and put her family first, or her brain just won’t be as sharp any- more — these are two of the most preva- lent critiques Calvert hears in her work directing the Project for Attorney Re- tention. Still? “Still,” Calvert says. Women make up only 22 percent of the federal judiciary and only 26 percent of the state judiciary, according to a study published this year by SUNY- Albany’s Center for Women in Govern- ment and Civil Society. That’s a big prob- lem, says Dina Refki, the center’s direc- tor, because 33 percent is the threshold for change — “the point where women become a critical mass and where their number is large enough to induce change in the normative conception of leadership and to exercise meaningful influence on the cultural norms which stereotype women’s roles.” Other statistics reveal a fuller picture of the choices highly educated women make. The fertility rate for American women, when broken down according to education, is lowest for those with
post-graduate degrees and highest for those with no high school diploma. And in a 2003 international survey of 100 men and 100 women in top jobs at 10 major U.S.-based corporations, 74 per- cent of female executives had a spouse or partner who was employed full time; among men, 75 percent had a spouse or partner who was not employed at all. Add all this up, and there is a glaring reason that Obama’s Supreme Court short list had very few moms on it (with Diane Wood, a mother of six, a rare ex- ception). The numbers are against them.
I
f Kagan is confirmed, the number of women on the Supreme Court will hit that “change threshold” of 33 per-
cent for the first time in its history, of- fering possibilities for a new stream of research into judicial decision-making. To tease out any gender differences, researchers conducted a review of about 7,000 federal appeals court decisions be- tween 1976 and 2002 and found no sta- tistical difference in the way women and men ruled in a variety of types of cases, except one: sex discrimination. In those cases, female judges were about 10 percent more likely to find for the plaintiff than their male counter- parts, said Christina Boyd, a political scientist at SUNY-Albany and a co-au- thor of the study. And on three-judge panels where at least one member was a woman, the men were 15 percent more likely to find for the plaintiff than on panels with only male judges. So women do affect the law — some- thing Ginsburg learned through experi- ence. “Yes, women bring a different life experience to the table,” she told Emily Bazelon in an interview for the New York Times Magazine shortly before So- tomayor’s hearings. “All of our differenc- es make the conference better. That I’m a woman, that’s part of it, that I’m Jew- ish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.” In saying he wants justices who have
“heart” and “empathy,” and who under- stand “how our laws affect the daily real- ities of people’s lives,” Obama has in- vited us to ask who has a life outside work and who doesn’t. That’s hard to de- termine in a confirmation process that will require Kagan, like Sotomayor be- fore her, to crimp her personality and bite her tongue. Motherhood offers a one-word verifi-
er. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and inti- macy, all outside the workplace. Much of the time, it’s the opposite of being stra- tegic and assiduously prepared. It’s a story we understand without needing all the details.
gerharta@washpost.com
In September 1988, I was helping prepare Gov. Michael Dukakis for a presidential debate against Vice Presi- dent George H.W. Bush. The late Bob Squier, a brilliant operative, coached: “Remember, in this debate, the voter is sitting at home watching the tube, trying to decide which one of these two characters they want in their liv- ing room every night for four years. They’ve got to like you.” Everyone got the message: The brainiac doesn’t win, niceness counts, eliteness alien- ates. (Dukakis, like me, attended Swarthmore College and Harvard Law School; Bush went to Yale.) But legal culture is different. We’re enforcing the Constitution and pre- serving fundamental rights, for good- ness sake. Federal judges, unlike those in most states, are well insulated from politics because they are appointed for life and never face election. Though political concerns do intrude — the people who nominate and con- firm judges are politicians who worry about political consequences, after all — we hope that’s not the only thing the politicians think about. At the Supreme Court level, it’s all about finding oracles for Olympus. While it’s frowned upon when judges fire spitballs at colleagues, what mat- ters is intellectual horsepower, not of- fice-chat charm. It is wisdom and analysis, not personal experiences. If a judge’s life is elite in the sense of ex- cellence, that’s fine. In fact, that may be the point. At every turn the nomi- nee has excelled in a meritocratic sys- tem, one that is selective yet far more open than in generations past. But if a judge is elite in an exclusive and ex- clusionary sense, then we have a prob- lem that’s both political and jurispru- dential. The tension between elitism and populism is embedded in our national DNA because America rejected the model of a monarch ruling by divine
Do you want someone like you or someone better than you?
right in favor of an iffy experiment in democratic self-governance. So now you are responsible for choosing your leader. Do you want someone like you or someone better than you? Easy answer if you’re picking a pia- no teacher or a brain surgeon. But what about picking a Supreme Court justice who will decide whether cor- porations should be able to buy elec- tions, whether late-term abortions can be prohibited, whether Congress can take a sledgehammer to state reg- ulation of health insurers or whether local police can demand that people who look illegal (brownish?) produce identification papers? Before taking my current position
at Berkeley, I was a law professor at Harvard for 23 years (and voted to have Kagan, with whom I’d worked in the Clinton White House, join us). I firmly believe that the exclusionary nature of such elite institutions poses dangers. For a generation now, every highly selective university has been aware of this problem, however im- perfect their responses. The gatekeeper power of such insti- tutions is why it was so important to desegregate them (using affirmative action, among other tools) and why virtually all leaders of great universi- ties talk about diversity and access. For about 40 years now, all the top
law schools have tried to pick students who are not just brilliant but who have the potential to be outstanding leaders from and for all of America’s communities. Today, “elite” doesn’t carry the old-boy, classist, midcentury
sense. In fact, law schools strive for an elit- ism that is quite democratic in com- parison with many other fields. As at Yale and Harvard, we at Berkeley seek to build a campus community that is as exciting and diverse as our nation. That means a New Jersey physics ma- jor who models underwear. A single- parent firefighter medievalist from Denver. A former Navy Seal, a soft- ware designer, a late-blooming high school dropout, a dancer with pub- lished poetry. And when they are here, they teach each other, they learn to understand each other, and then they remember each other. I write this just hours after our law school graduation ceremony. Elite? You bet. These graduates are exactly what our toughest problems demand. But beyond the paper credentials and the academic pedigree, they are more diverse in aspirations and passions than can be imagined. We should prefer institutions that are elite in terms of excellence, while more democratic in terms of access. Even Harvard, Yale and their ilk are more open than they were a genera- tion ago. This is for a lot of reasons, among them the rise of standardized testing, however imperfect, intended to reduce cronyism, the civil rights and women’s rights movements, and the modern system of need-based fi- nancial aid. My wife grew up picking crops in an
immigrant farmworker family and wound up at Stanford, Berkeley Law and the Clinton White House. That’s a powerful defense for elite meritoc- racy, if it’s done the right way. In my experience, there aren’t too
many “false positives,” i.e., not-so- good people mistakenly admitted to elite settings such as Harvard, Berke- ley or Supreme Court clerkships. On the other hand, there are plenty of equally terrific people who don’t get a privileged spot in these institutions, for reasons that have nothing to do with meaningful differences in talent. But those “false negatives” (good peo- ple denied entry) aren’t nearly as troubling as the false-positive mis- takes in admissions or hiring. Again, think of your neurosurgeon or air- plane pilot. How many Army majors could be
excellent generals? More than actu- ally make it. But in my experience, one of the benefits of the excruciatingly rigorous meritocratic personnel sys- tem of the armed forces is that it is a rare admiral or general whom one could fairly consider a dunce. Being a “man of the people,” accomplished swiller of beer, just doesn’t count for much when executing our national se- curity mission. Obama’s handlers use sports to hu- manize a brilliant man. But when he is pressing Afghan President Hamid Karzai about corruption or drug com- panies about health care, we are thankful for his intellect, not his jump shot. True, as a political leader he then has to sell his efforts to the electorate, and for that his niceness still matters. When the president announced his Supreme Court pick last week, he not- ed that Kagan has an understanding of the law as it affects “the lives of or- dinary people.” Not everyone is con- vinced she’s one of those ordinary people. Sen. John Cornyn (Tex.), a Repub- lican on the Judiciary Committee, not- ed that Obama had chosen “another person from an elite law school here on the East Coast, and there are a lot of law schools, a lot of highly qualified people around the country in the heartland that should have been given consideration.” This nagging question — of how well this brilliant legal mind can rep- resent the “heartland” — is one that won’t go away. We know that Kagan has excelled in the legal field. That ought to be enough. But just to be safe, she must explain what beer she drinks while slugging softballs. (To center field, of course.)
Outlook’s editors welcome comments and suggestions. Write to us at
outlook@washpost.com.
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