Elena Kagan Hits the (Really) BigTime

Dear Readers,

On the occasion of Elena Kagan’s presumptive confirmation to the Supreme Court, http://http//www.nationalpartnership.org/site/News2?abbr=daily2_&page=NewsArticle&id=25389&security=1201&news_iv_ctrl=-1, I’m posting my piece, “The Supremes, and We’re Not Talking Motown Here,” which appeared in the Huffington Post and in RH Reality Check earlier this summer.

Since I first posted this piece, I’ve received a whole lot of interesting comments–a lot of people care a whole lot about our Supreme Court, and that’s a wonderful thing: Whoever said civic engagement has diminshed, that we’re “bowling alone” (these days) isn’t part of (our) crowd. And I, for one, am very grateful for knowing that.

A great first-2010-August-weekend to all.



So, maybe, there’s yet another big difference between the sexes: While nice boys finish last, nice girls finish first.

Just look at today’s news: I ask you, what’s a bigger achievement than being selected as a Supreme Court Justice? Yup, just pause, and think for a moment about those words, “supreme” and “justice,” next to your name. How cool would that be?

In his first year in office, President Obama has had the amazing good fortune to get two Supreme Court picks. In both cases, he picked a girl from New York. [How cool is that, for a(nother) girl from New York: me. Let me count the ways. But keep reading; it’s not all that good.]

OK, so let’s be serious here. Do you see a pattern here? And, this time, I’m not talking about the one in which all the brilliant New York girls are being picked for starring roles.

The pattern is: Make sure you’re a really nice girl, first and foremost.

What’s that, you ask?

Well, taking a page from the Sonia Sotomayor/Elena Kagan, New York, nice girl (no, “New York” and “nice” is not an oxymoron) playbook, it’s study really hard; get really good grades; go to Princeton (both); go to Harvard Law (Elena), or go to Yale Law (Sonia); have important male mentors; stay single as you’re making your way up the career ladder, so no husband’s choices get in your way, or put you in a bad light; well, you get the drift.

In fact, these two women who finished first: Elena, the one about to have “supreme” and “justice” next to her name, and Sonia, the one who already has it, are nice girls, in all the ways that actually matter, if you want to have words like “supreme” or “justice” next to your name.

In fact, these days, as Sonia and Elena have now proved, you can even safely forget the baby-making and the finding a nice guy, or even a(nother) nice girl (keep reading on the latter point). Just don’t forget to study hard, and never, never talk out-of-turn.

And, do forget, for sure, that old saw, which used to make some of us feel better: “Well-behaved women rarely make history.” http://thinkexist.com/quotation/well-behaved_women_rarely_make/180481.html.
In fact, those badly behaved women, and, believe me, I know where-of I speak, only make history of the upset-the-apple-cart kind, not the kind that leads to “supreme” and “justice” next to one’s name.

In sum, these two New York nice girls, just like those two nice Illinois girls, Michelle Obama (Harvard Law) and Hillary Clinton, she of the when it came right down to it I did stand by my man school, (Yale Law), have never met a test they couldn’t ace, and, well, cooking or housekeeping, the used-to-be sine qua non of nice girls; well, there’s help for that: Just ask Michelle or Hillary.

On the personal front, Sonia Sotomayor seems kind of like Valerie Jarrett (Michigan Law, daughter at Harvard Law). While married early-on, there was no husband around during the formative years of her career, when the difficult decisions needed to be made, when one’s decisions might have required consideration of the desires of another ambitious adult.

On the other hand, Elena Kagan has never married, and, at least as far as we know so far, she hasn’t had any long-term intimate relationship, (male or female), requiring accommodation to that person’s career or personal goals.

And, doubly lucky for Elena Kagan (we have made some real progress here), the White House seems to be comfortable handling, albeit somewhat defensively, the assertions that the President may have just nominated a LESBIAN to the SUPREME COURT! [It really is delicious when you think about it.]

So, what’s my point in all this, you ask? Well, my point is it’s that gosh-darned “nina modela” thing, that “nice girl”/model child syndrome one more sickening time.

So, that’s ridiculous, you say? It’s ridiculous to feel bad when a woman finished first–when lord knows not many women, of any kind, finish first anywhere, much less in the run-up to the Supreme Court?

Well, it’s not ridiculous, I say, because it’s the bad girls, like me, who make these good (nice) girls’ dreams come true. And, to add insult to injury, these nice girls can maybe even be lesbians!

We screamed, and scream; we hollered, and holler. And what do we get? Somebody’s back, as they shut the door in our face(s). “She’s a pistol,” they say, and not with admiration.

What do they get? The Supreme Court (Elena and Sonia), or the West Wing (Valerie), or, for that matter, and not so bad either, the East Wing (Michelle and Hillary).

Fact is, Elena stood silent, while I screamed. Fact is, Elena was “canny,” while I was fervent. Fact is, Elena was a coalition-builder, while I was an advocate. Fact is, Elena didn’t express her political views, while I did nothing but. Fact is, Elena wrote little, while I wrote untold speeches and press releases, all with the same basic headline: We (women) want more. http://www.nytimes.com/2010/05/10/us/politics/10kagan.html

[NOTE: I’m using myself as a stand-in for those women lawyers who will
never be considered for “supreme” and “justice” next to their names. I’m not a lawyer, so I can’t run this race.]

Is this ironic, or what? This is Elena, the putative lesbian, we’re talking about. This is Elena, who, odds-are, will be doing nothing but express her opinions for the next forty or so years, if her’s and the President’s good luck continue, and just because she kept her mouth shut in the early rounds. It’s not only ironic, it’s bewildering.

Ironic? Let me count the ways.

–Let others do the political talking, so you don’t have any politically-incorrect YouTube videos.

–Let others do the writing, so you don’t have any controversial law review articles.

–Let others interrupt their careers to follow a spouse, or pay for a spouse’s education, while you forge ahead in line.

–Let others fight for women’s reproductive rights, while you benefit from that fight.

–Let others advocate for women as a group, while you advocate for yourself.

Yes, all this said, I’m still very happy that a(nother) non-Protestant (more progress, here) woman from New York is going to be a Supreme Court Justice. That makes the Supremes, in case you’re counting, the (really cool, not Motown, but Big Apple) Supremes: Ruth, Sonia, and Elena.

But I’m not that happy: In fact, as I think about it, I think I was happier when Ruth Bader Ginsburg was appointed to the Supreme Court, a woman who found a way to be a women’s advocate, and a wife, and a mother, as well as a way to be a brilliant lawyer and judge, and, finally, yes (!), a Supreme.

And, as I think about it, Ruth Bader Ginsburg may be a better role model for today’s young women than soon-to-be Justice Kagan or now Justice Sotomayor. For, unlike Kagan and Sotomayor, Justice Ginsburg has
lived the life that most women live, and yet she found a way to be a Supreme, notwithstanding.

White Men Cant’ Jump: Part Two: The Revolution Has Been Televised.

Good morning,

So, imagine my amazement, and great satisfaction, when I read this column in Sunday’s edition of the Benton Harbor/St. Joseph, Michigan Herald-Palladium newspaper.


I never thought I’d say it, but Kathleen Parker nails-it:

“Senators also hammered Sotomayor about her ethnic identification and whether she could rule fairly without undue influence from her gender or political preferences. Wait, let me guess, you’re white guys! [sic] Are we to infer that men of European descent are never unduly influenced by their own ethnicity, gender or political preferences: Can anyone affirm this assertion with a straight face?”

Then, returning back to Chicago to my Sunday New York Times, I read this powerful Frank Rich column: http://www.nytimes.com/2009/07/19/opinion/19rich.html?_r=1&ref=opinion

With apologies to Gibbon, here’s Frank Rich on Parker’s point about the decline and fall of an empire–in this case, the every-day-white-guy American one–as crystallized in the very bad behavior last week in that empire’s most exclusive bastion, the U.S. Senate:

“Yet the Sotomayor show was still rich in historical significance. Someday we may regard it as we do those final, frozen tableaus of Pompeii. It offered a vivid snapshot of what Washington looked like when clueless ancien-regime conservatives [read: “every-day white guys”] were feebly clinging to their last levers of power, blissfully oblivious to the new America that was crashing down on their heads and reducing their antics to a sideshow as ridiculous as it was obsolescent.”

During another time of American revolution, Gil Scott Heron said: “The revolution will not be televised*,” meaning that those who sought change would have to get-up, get-out, and fight for it. But, last week, it was.

Heron’s poem also included this line: “The revolution will put you in the driver’s seat*.”

The driver’s seat, indeed. Last week, Sonia Sotomayor, a Nuyorican girl from the Bronx, was in the driver’s seat, leaving the “every-day white guys” in the dust, running scared. Running-scared because they are now a minority in America; in fact, men are in the minority.** A scary proposition, indeed.

In addition to everything else Judge Sotomayor stands for: the benefits of hard work; the value of studying and getting a good education, no matter the barriers; the incalculable value of a visionary-mother; and the power of a relentless commitment to excellence, Judge Sotomayor symbolizes the next phase of our American Revolution: the phase when women will be in drivers’ seats, all-over-the-place.

In her brilliant column, Kathleen Parker points-out that last-week’s Senators, bewilderingly, still think they are in the driver’s seat. Why? Because they still think, despite all evidence to the contrary, that they are not “different” from anyone–others are different from them–so their decisions are not influenced by their sex or background, making them, in their view, most fit to be our drivers. Methinks they will rue the day they didn’t get it.

And last-week’s, if possible, even more explosive subtext was seeing–so baldly–these “every-day white guys,” who have held back minority women–just because they have had the power to do so–fearing minority women will return the favor. They desperately wanted assurances this won’t happen, so they imputed to Sonia Sotomayor, of all people, their own bad behavior.

Here’s an idea for a new organization: the 51%** Club, a club that any woman could join, pro-choice or not, pro-ERA or not, pro-Title IX or not. For, when all is said and done, we women, (51% of the population in 2000**), are more alike than we are different. As Kathleen Parker’s column makes clear, we are of common-mind about what we saw on last week’s television; we share the same fundamental concerns about this (unequal) world of ours.

If we organized across the conventional political lines that too-frequently separate us, there wouldn’t be, say, a court in which woman wouldn’t be the majority, an election we couldn’t win, a corporation we couldn’t convince to promote women to positions of real power, or, indeed, a world, this world, that we wouldn’t have changed for the (way) better.


*”The Revolution Will Not Be Televised,” a poem and song by Gil Scott Heron, first recorded in 1970 on his album: Small Talk at 125th and Lenox.

**http://www.census.gov/prod/2003pubs/p20-544.pdf, http://www.census.gov/popest/national/asrh/NC-EST2005/NC-EST2005-01.xls

White Men Can’t Jump

Good afternoon,

I’ve been thinking about a new blog, to be called: “White Men Can’t Jump,” in order to address the foolishness, ignorance and sexism sometimes so evident and so destructive to the commonweal. Then, this column by Jill Filipovic crossed-my-desk:




“Sen. Lindsey Graham (R-S.C.) said he remained concerned about Supreme Court nominee Sonia Sotomayor’s 2001 remark that a “wise Latina” might make a better judge than a white male, even after meeting her for more than 30 minutes this afternoon.

‘My criticism about her comment and the speech that she gave wasn’t that I think this lady is a racist,’ Graham said, later continuing: ‘There is no evidence of that, but this statement is troubling and I did tell her this, If I said it, it would be over for me. No matter how well-intentioned I was and no matter how much I tried to put it in context, that would be it. And you all know that.’

‘He added, ‘being an average, every-day white guy … that does not exactly make me feel good hearing a sitting judge say that.'”

Sen. Lindsey Graham, June 3, 2009
The Washington Post

“The mere presence of a woman or a black on the Supreme Court changed the way colleagues saw some issues.”*

This Independence Day edition of SiveSiftings is dedicated to my parents, who met at Columbia Law School over 60 years ago, and, ever since,have shared a dedication to social justice and democratic values. Notably, my immigrant mother cherishes the Fourth of July in a way that, perhaps, only an immigrant can.

I also dedicate this posting to my Aunt Flora, the daughter of immigrant Jewish parents, in whose predominantly Nuyorican neighborhood I learned to appreciate the Nuyorican culture, so much more widely known since the President’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.

Indeed, this nomination of a New York daughter of an immigrant mother—to the highest court in the land, no less—feels particularly wonderful to this daughter of another.

Our upcoming Independence Day prompts me to share my thoughts on this historic event.For what is Independence Day, if not a day when every American woman and girl, wherever she was born, and in whatever American neighborhood she grew up, should be able to celebrate the Founders’ claim to equal access to “life, liberty and the pursuit of happiness.” In my view, this guarantee of equality requires a Supreme Court with several woman members.

David Souter, the Justice Judge Sotomayor would replace, has spoken about the value of diverse perspectives to courts: “Anyone who has ever sat on a bench with other judges knows that judges are supposed to influence each other, and they do….One may see something the others did not see, and then they all take another look.” (“The Waves Minority Justices Always Make,”The New York Times, May 31,2009.)

I imagine that Justice Souter also knows that women judges see things male judges don’t see, just as minority judges see things white judges don’t see, according to his colleague, Justice Scalia.

Here’s Justice Scalia: “[Supreme Court Justice Thurgood] Marshall could be a persuasive force just by sitting there….He wouldn’t have to open his mouth to affect the nature of the conference [of Justices] and how seriously the conference would take matters of race.” (“The Waves Minority Justices Always Make,” The New York Times, May 31, 2009.)

In the back and forth regarding the President’s prospective selection of the next Supreme Court Justice, Stanford’s Deborah Rohde was quoted as saying: “People who care about women’s issues realize that not just any woman will do,” because “legal ideology is a stronger predictor than gender of judges’ decisions.” (“Court Opening Prompts Question About Whether Gender Matters,” The Wall Street Journal, May 14, 2009.)

But an important lesson of American history is that laws benefiting women and girls have only come in significant, if still not sufficient, numbers when the number of female public officials is significant.In fact, and as a matter-of-course, women political leaders act-on women’s needs, in ways that male leaders don’t, whether these women leaders hold executive, legislative, or judicial positions.

In the judicial context,Women’s eNews recently reported on a study that found: “….[F]emale [federal appeals court] judges were 10 percent more likely to rule in favor of the party bringing the discrimination claim….[The study found] that the presence of female judges can appreciably affect sex discrimination cases. [And] when men serve with women they are 15 percent more likely to rule in favor of a party alleging discrimination than when they sit with male judges only.” (Women’s eNews, June 25, 2009.)

In the federal legislative context, the concern of women legislators for women’s equality fostered the creation of the bi-partisan Congressional Caucus for Women’s Issues and fosters its continuing success in advocating for policies that make life better for America’s women and girls.

Regularly, and across party lines, women Representatives advocate for laws that benefit women and girls. Federal laws preventing domestic violence and rape, ensuring equal pay and equal access to education, and providing safe and quality childcare are just some examples.

It may come-to-pass that soon-to-be Supreme Court Justice Sotomayor will write decisions with which some women will disagree, just as this President, who most Americans support, has made some unpopular decisions recently. However, the polls tell us, repeatedly, that most Americans embrace the needed and positive effect on race relations—the “American dilemma” since that very first Independence Day—the election of our first African-American President has had.

Similarly, I’m betting that most Americans will take comfort in the confirmation of our nation’s next female, and first Nuyorican, Supreme Court Justice, knowing that she will bring a(nother) needed woman’s perspective to the U.S. Supreme Court.

Our American Revolution continues. I thank the President for taking this step to make all our American neighborhoods better–for all our Independence Days to come.

Happy Fourth of July.


http://kalman.blogs.nytimes.com/2009/04/23/may-it-please-the-court/: Click on this link for some inspiration about the Supreme Court, women leaders, and Justice Ruth Bader Ginsburg, another daughter of immigrant America.

*The New York Times, “The Waves Minority Judges Always Make, “May 31, 2009