Tuesday, October 04, 2005

Be Careful What You Ask For....Dubbya's Pit Bull in The "Women's Seat"

My sisters who call themselves feminists have been stridently clear about only two things since it became clear that Dubbya was going to leave his imprimateur of his worldview on the United States Supreme Court. One of them was that they demanded that the primary test for whether a nominee was acceptable was whether or not that candidate was "pro-choice" as they define it - which somehow always manages to get distilled down to "the unfettered right to an abortion" despite the truth of the majority of women's views (but that ridiculous and unfortunately ongoing distillation is a discussion for another time.) Here is the second thing, which increased in volume upon Justice O'Connor's announcement of her retirement:

Justice O'Connor's "seat", for want of a better term, is a "woman's seat" and therefore should be/must be filled with a woman, or it is a signal that women are returning to second class citizenship.

Given his overwhelming success with his elevation of John Roberts - William Rehnquist's protege -- to Chief Justice, Dubbya had enough political capital left over that he could accomodate at least one of the two things feminists were demanding. He nominated a woman; his close personal friend and personal lawyer (now standing in as White House Counsel after Torture-Em-High Alberto Gonzales got a promotion), Harriet Miers. And he did so knowing that it will be impossible to attack her based on anything relating to he second demand - that Ms. Miers be "pro-choice" - because of (a) the "rule" that a nominee cannot comment about cases that might some day be before the court and (b) the use of the code phrases "conservatism in approaching precedent" and "stare decisis" to assuage those who look too narrowly at reproductive rights jurisprudence, seeing it almost entirely as a question of women's rights instead of a body of law addressing the broader questions of liberty and privacy, without regard to gender *or*, God help us, abortion (as opposed to the larger question of reproduction).

And he is able to do all of this because few people will bother to put the snippets we know about Harriet Miers together and courageously (without fear for who the next nominee might be) make the necessary arguments about why, based on a *holistic* view of the little that we know about her.

Saying that Ms. Miers resume is a little thin for a Supreme Court justice is an understatement. The non-controversial parts of it are, at least (there is already some controversy brewing over her role as Bush's lawyer in charge of cleaning up Dubbya's TANG records for public consumption, and over her role in silencing a whistleblower speaking out about corruption/cronyism in the Texas Lottery Commission even after Miers was hired precisely to fix this type of problem.

Indeed, there is only one thing on Ms. Miers' resume right now that doesn't have someone raising a "wait a minute" flag, something that is being touted by Dubbya *and* Harry Reid as a key reason that Ms. Miers is so qualified: that during a time where women had to fight in the legal profession, Harriet Miers was a successful partner at a corporate law firm and rose to managing partner.

Yeah, that's really reassuring. Not.

As any female lawyer under a certain age can tell you, a woman in Ms. Miers' age group who made partner at a large, corporate, law firm is not frequently a source of mentoring or support of other women. To the contrary, many of these women have become unconscious obstacles to advancement of women in the legal profession; and since they are women, of course they far more effective than the men in the club. Much in the same way that older doctors continue to resist changes in the training of medical students that would dramatically reduce the number of continuous "on call" hours that interns and residents must work, so too older female lawyers have often been the least sympathetic to changes in the legal profession that would allow their sisters to enter the field and succeed to partnership.

Of course, nobody has ever actually done a rigorous empirical study on this issue, but anecdotes abound:

See Comment by R.B.

Gender Schemas

The closest that one currently has to empirical data, Professor Deborah Rhode's 2001 summary of women in the legal profession for the American Bar Association The Unfinished Agenda indicates that there is a "'No Problem' Problem" in the legal profession - and that most women in power in the profession do not see gender as an impediment, any more than men in power do. Indeed, only 25% of women lawyers do.

Harriet Miers, as the first female attorney ever hired by her firm (and, subsequently, its first female managing partner, probably in no small measure due to her already extensive ties to George W. Bush), certainly got there through "singular dedication to her work". She has no children, no husband, and it's unclear whether she has had a long-standing nonmarital relationship of any kind. By all accounts, Harriet Miers was and remains a workhorse. This makes sense - there was simply no other way *for* a woman to make partner when she was up and coming (there still isn't now, not really). She had to, in many ways, become a man and prove that her gender was irrelevant (even as all thinking people know that gender is never irrelevant; much like racism, sexism is institutionalized.)

Having become one of the boys by making partner, Harriet Miers probably still was less likely to mentor other women coming behind her. At least if you take Professor Rhode's work, and the myriad anecdotes seriously, she may well have become a gatekeeper impeding the progress of women who were not "singularly dedicated" to their work, just another female lawyer insisting that there is "no problem" with women in the legal profession that couldn't be cured by billing more hours and having more beauty contests (what we lawyers call pitching business to a prospective business/corporate client of high billing potential who is in the market for new lawyers.)

Not exactly a basis for a lot of hope that Harriet Miers' background as one of the "pioneers" informs her about the struggles faced by women, whether in the legal profession or generally. Which is why I personally groan every time I hear about Harriet Miers' success at her old law firm. Speaking from *personal* experiences, I can say that if you're looking for a woman's advocate in an old-school female law firm partner, you're likely to be looking a very very long time.

Even worse, equal status for equally qualified women clearly isn't a priority, when the first job Harriet Miers did for George W. Bush in Washingtgon was not as assistant counsel, special counsel or any other job appropriate for a former firm managing partner and President of a State Bar who'd been carrying a law license for at least 30 years. What was Ms. Miers' first job for Dubbya in Washington?

His Staff Secretary.

So much for empowerment.

So far, here's what we know of Ms. Miers' views on women's rights: That she used to be a Democrat, but sometime during the Reagan Revolution, she had a born-again epiphany and switched political affiliations, even though she contributed $1,000 to Al Gore in 1988. We know that for the past 20 years, she has been a regular, devout, attendee at her local conservative Christian Church.

We know the question of groups she was affiliated with being seen as supporting abortion rights was at least troubling enough to her to take up the cause with the American Bar Association - our official "trade group", which most lawyers know has zero clout in terms of shaping any of its members' opinions on anything. Even lawyering.

We also now that personally, she is on the extreme end of the anti-choice movement.

That's a lot to know. And frankly, not a very happy knowledge, no matter how much I disagree (and I do vehemently) with the strident uber-feminist political rallying cry of "My body, my choice, and if you disagree you're a misogynist that wants to oppress or kill women." No matter how much I agree (and I do) with the view that the more women on the Court, the more likely that the diverse viewpoints of women will in fact be recognized and accepted as legitimate voices in society (although I'd argue that a woman of color - other than Janice Rogers Brown, who possesses the real life sensibilities of neither a woman nor a person of color but instead some strange sort of pod throwback to the 1920's where we women were barefoot and we darkies were happy with crumbs from the man - is what is needed to *truly* create harmony with Justice Ginsburg's voice and fill in absent viewpoints).

It seems clear that, in answering the feminist demand for a woman (other than Rogers Brown or Priscilla Owen, both who really have forfeited the right to call themselves women given their stridency) to step into the shoes, however conservative, of Sandra Day O'Connor, women have let themselves be hoist by their own petard with this nomination.

In light of all this, what can we predict about/expect from Harriet Miers? Well, with no judicial experience of any kind to temper her views of law, we can and should take what Dubbya said about her when he gave her Alberto Gonzales' former job to heart: She's a Pit Bull in Size 6 Shoes; an advocate's advocate. Moreover, as was highlighted in the National Review back in July, Miers is indeed staunchly anti-abortion (pro-life, if you will, but it never seems to be pro-life once the baby actually gets here). But she's not just any female pit bull who is opposed to abortion personally, by all accounts she's Dubbya's pit bull. She is staunchly loyal to George W. Bush, believing him to be the most brilliant man she's ever met. (Ms. Miers, if you really believe that, you simply must get out more.)

In other words, she's part of the same Dubbya Cult of Personality TM that Condoleeza Rice belongs to. Which, IMO, should be a disqualifying factor right there - a Supreme Court justice is not the President who nominates her or the Senate who confirms her, but constitutionally charged with literally shaping the entire nation's rights, long after both the President and Senate of her day are gone.

In other words, Harriet Miers may be a powerful woman, but she's Bush's woman, above all else. And, unlike Justice O'Connor, there is no evidence that Harriet Miers experienced personally the deep anger and frustration of being prevented by sexism from rising to the heights her qualifications justified. We all know that Justice O'Connor, despite being 3rd in her Stanford Law School class, couldn't get a job when she graduated as a lawyer without help (although she had to beat the secretarial offers off with a pool cue). Thus, when it came to women's concerns one most often saw the centrist side of Justice O'Connor...a balance that despite the evident narrow reading of jurisprudence that is evident in her decisions, reflected her real life experience and a real life understanding that law is not as simple as it seems.

(It's a shame Justice O'Connor couldn't extend her sense of distributive justice into the realm of race; I continue to be heartbroken that my undergraduate commencement speaker, my SLS alumna sister, and the first woman to sit on the Supreme Court was brutally and affirmatively oppositional when it came to remedies for discrimination against Black people in the work place).

Make no mistake: Justice O'Connnor is the key reason that Planned Parenthood v. Casey was not a complete overruling of Roe v. Wade. It is Justice O'Connor's "undue burden" reasoning in Casey, which pissed off hard-core feminists but was nonetheless far more legally sound than the practically sound but legally-garbage framework set forth in Roe that has ultimately protected the right acknowledged in Roe, rendering the fundamental premise of pre-viability choice far more unassailable than it was after Roe was decided. Recognizing that hard core feminists blame the Casey for the subsequent ascention of TRAP and other laws attemping to kill the abortion right by degrees, legal scholars know with certainty that Casey has a lot greater chance of survival even in the face of a hostile majority on the Supreme Court than Roe ever did.

Can we expect the same type of "practical reading of jurisprudence" from Harriet Miers, stealth candidate extraordinaire - who doesn't have so much as a law review article attributable to her that one can review to read the tea leaves from what folks can tell so far? Can we trust in anything she says or will say, or even that the confirmation process will truly work, given the no-doubt now regretted precedent established during Justice Ruth Bader Ginsburg's 1993 confirmation process: the right of a nominee to demur to answering questions about fact patterns which *might* someday be before the Court?

Who knows. The tea leaves are looking muddy. And, the only counterbalance to a worst case scenario offered to us so far about Harriet Miers' views on constitutional jurisprudence, the role of the Supreme Court, and her role on it if confirmed, is this:

It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts and our society. If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the constitution.

Well, hell, we all know what the founders' vision (i.e. back to the Constitutional Convention; nobody coming is a "founder") of the proper role of the courts and our society means for women and people of color. If one takes that to its logical extreme in light of her anti-abortion views one could easily in a moment of panic conclude only one thing:

It's back to the kitchen, ladies; except for me, where it's back to the plantation, lawyer or no lawyer; there is no safe quarter in gender when you are a Black female.

Finally, I cannot overlook that at least right now some feminist spokespersons are still so flummoxed about how to respond to Miers'nomination -- in contrast to Roberts -- that they can't stay focused on their 'primary mission' and suddenly are are hinting at caring about Miers' views about 'civil rights' . Given how badly feminist voices flubbed this very issue of civil rights in connection with the Roberts nomination, it seems that this mention is not an accident, but a deliberate strategy of trying to find a back-up complaint just in case they can't find anything meaty to support a claim that Ms. Miers is anti-women's rights. Of course, had these same folks made such a charge in connection with John Roberts and his far-better known disdain for civil rights, and sought out coalition based on that issue as the primary issue rather than demanding that abortion be the only true litmus test for his nomination, we might have actually had a real chance to win the war and thus prevent Roberts' likely misogynist views from becoming enshrined on the Supreme Court. But noooooooooooo......abortion was the only thing that mattered when it came to Roberts, and thus the words 'civil' and 'rights' (let alone affirmative action, Black people, or racism) did not appear in a single Roberts' missive issued by a traditional feminist group. In no small measure, I lay responsibility for Roberts' overwhelming confirmation at the feet of single-minded dogma about abortion based on no more than hints and clues to the exclusion of charges about racism and civil rights that had more meat to support them in Roberts' actual record.)

All this leads to the cynic in me feeling thusly about this nomination and the overall debacle that is being wrought on the last bastion of rights, the Supreme Court:

Be careful what you ask for. Because you may get it.

(Folks might want to give womanism a try next time, which is grounded more in common sense survival tactics and less in dogma; we'll live longer.)


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