Washington Post Column Suggests a Conflict Between Feminism And Domesticity

Emily Matchar's column in the Washington Post suggests a conflict between feminism and "domesticity."  Such a conflict is artificial.

Matchar's column is personal. It begins with a listing of her plans for the holiday season:

I’m planning on canning homemade jam this holiday season, swept up in the same do-it-yourself zeitgeist that seems to have carried off half my female friends. I picked and froze the berries this summer, and I’ve been squirreling away flats of Ball jars under my kitchen sink for months. For recipes, I’m poring over my favorite food and homemaking blogs — the ones with pictures of young women in handmade vintage-style aprons and charmingly overexposed photos of steamy pies on windowsills.

Matchar contends that her personal story defines a new generation of women, who subscribe to the "New Domesticity":

Around the country, women my age (I’m 29), the daughters and granddaughters of the post-Betty Friedan feminists, are embracing the very homemaking activities our mothers and grandmothers so eagerly shucked off. We’re heading back to jam-canning and knitting needles, both for fun and for a greater sense of control over what we eat and wear.

Matchar then explores whether this development is a positive step for women or whether it spells a defeat for women's equality. Matchar asserts that the New Domesticity is a positive move that allows women to make decisions about their lives, such as choosing the ingredients for the foods they eat.

Although I enjoyed reading the article, I believe the question it seeks to answer presents an artificial conflict. Feminism was never meant to extricate women against their will from "domestic" life. Instead, feminism seeks to empower women to make choices that benefit them and their families.

Furthermore, I quarrel with the description of some of the activities in the article as signs of "domesticity." Choosing to can food, sew buttons on shirts, or cook meals does not relegate an individual to a life of domesticity. Indeed, feminists were not concerned with domestic activities as such but with the unquestioned assumption that domesticity was the natural place for women. The women in Matchar's article clearly have choices.

Well, now I am going to watch football and finish the last slice of White Chocolate-Dried Cherry-Toasted Pecan Bread Pudding (along with a cream sauce) that I made for Thanksgiving (pictured above). Just call me Mr. Domestic.

NOW Condemns David Letterman for Having Sex With Female Staff

The National Organization for Women has strongly condemned David Letterman, who recently admitted to having sex with female staffers. Letterman disclosed the relationships in order to foil an extortion scam.

NOW: Letterman Created "Toxic Environment"
NOW has posted a formal statement criticizing Letterman on its website. According to NOW, Letterman's behavior created a "toxic environment." NOW reasons that:

[Letterman] wields the ultimate authority as to who gets hired, who gets fired, who gets raises, who advances, and who does entry-level tasks among the Late Show employees. As "the boss," he is responsible for setting the tone for his entire workplace -- and he did that with sex. In any work environment, this places all employees -- including employees who happen to be women -- in an awkward, confusing and demoralizing situation.

The statement also describes a call from a man who asked NOW to advise him how to discuss this issue with his daughter:

We recently received a call from a man in Rockford, Ill., who wanted to get advice from NOW about what to tell his 16 year-old daughter who was confused by reports on the latest Letterman controversy. The father raised his daughter to be a feminist. He raised her to stand up for herself. He raised her not be objectified as a sexual object. She admits she is confused because the messages she sees on television and news reports appear to make it okay to objectify women as long as the man in power is famous. It is this kind of hypocrisy that perpetuates the image of men in power preying on women, while many look the other way.

NOW's Criticism is Unnuanced
Sexual harassment in the workplace is not only unlawful, but it is a serious problem. NOW's analysis, however, does not distinguish unwanted sexual attention, which federal law prohibits, and consensual sex. Because Letterman is "the boss," NOW deems any sexual contact between him and his (female) staff as inappropriate.

Many feminist legal theorists (e.g., Janet Halley, Kathryn Abrams) have criticized the assumption that women lack agency to consent to sexual relations in the workplace, including with men in positions of authority. Some of the "agency theorists" have failed to appreciate the fact that economic status, race, sexual orientation, and other factors severely limit women's autonomy. Nevertheless, NOW's assertion that any sexual contact between "bosses" and subordinates creates a "toxic" work environment, "objectifies" women, and involves men "preying on women" offers a particularly unnuanced depiction of the workplace.

In some circumstances, the law rightfully assumes that "subordinates" cannot consent to sex. For example, statutory rape laws rest on the understanding that sex between a child and an adult will likely involve some dimension of coercion even if the child offers "consent." Laws also prohibit teachers from having sex with students, including students who have reached the legal age of consent. Similar laws ban sexual relations among staff and patients in mental hospitals and among prison officials and inmates. NOW's position treats the workplace like all of these other settings where the problem of consent seems far more pronounced.

Irony
It is also interesting and ironic that in the case of Letterman, a female staffer's male romantic companion spearheaded the extortion scheme. Apparently, Joe Alderman read Stephanie Birkitt's personal diary, discovered that she was having an affair with Letterman, and tried to cash in on the situation.

Alderman treated Birkitt as "his" property. It does not appear that Birkitt conspired with him to commit extortion. Instead, Alderman used her affair with Letterman to address his own dire financial situation. This seems analogous to the archaic notion that an act of adultery with a married women is a crime against the "innocent" married male.

Also, according to some sources, Birkitt apparently told Alderman that she and Letterman where "best friends" when she traveled with him to Montana in 2008. Furthermore, Birkitt has described her relationship with Letterman in very warm terms. These factors undermine the sexual predator narrative that informs NOW's critique of Letterman.

Conclusion
Letterman might be a patriarch. But that does not rob women of the ability to consent to sex, nor does it make him a sexual predator.

Update: Taylor Marsh has also analyzed this issue: Just One Reason I Don't Belong to NOW.

A Tale of Two Tit Exposures: Janet Jackson, President Obama, the FCC, and Gender

Five years ago much of the nation erupted into an extreme panic after viewing a portion of Janet Jackson's right breast; her nipple was concealed. This was a classic moment of "Americans are from Mars. . .Darren is from Venus." I simply could not understand the (fake) outrage -- especially with so many partially and fully uncovered nipples brazenly presenting themselves daily on television and in the print media. The anti-nipple protests were also louder than criticism of the still ongoing and still unnecessary war in Iraq.

Gender and Toplessness
Many feminists have explored the gender dimensions of toplessness, and American nipple-hysteria has presented many occasions for engaging in critical analysis of this issue. Breastfeeding is probably the most intriguing example of nipple hysteria. Women who publicly feed their kids the "natural way" have caused moral outrage across the country. Based on some of the reactions, I fear that many people who apparently could not resist watching public breastfeeding before complaining about it will undoubtedly become blind or even serial killers. We should definitely stop this breastfeeding menace before it gets out of control!

The FCC's recent decision to re-investigate Janet Jackson's wardrobe malfunction -- after a string of court losses -- leads me to ask the following question: How can the FCC honestly go after CBS and Jackson again when President Obama's nipples have provided the stimulus for millions of magazine sales? A gendered approach to the issue clearly exists. Women's nipples are indecent unless they are in porn videos or feeding babies in a remote location unknown to other Americans. By contrast, men's nipples are not smutty. In fact, they are presidential. Why?

PS: Of course, Obama is not the only male to go topless without offending the nation, but I think it is interesting that the FCC is investigating female nipples while the executive head of all federal agencies (including the FCC) has gone topless in the media without incident.

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

In an effort to defend his harsh "evaluation" of Judge Sonia Sotomayor's temperament, Jeffrey Rosen cites the Almanac of the Federal Judiciary. The AFJ, published by Aspen Press, contains judicial biographies and summaries of attorney comments regarding individual judges. Some critics have argued that AFJ lawyer comments can reflect racial and gender biases. I agree.

Tough Women Are Bitches, Tough Men Are Impassioned Athletes
A persistent and ubiquitous gender stereotype portrays smart and aggressive women as domineering, mean, nasty bitches. This stereotype explains much of the negative treatment that Hillary Clinton received during her presidential campaign. Media commentators -- including so-called liberals such as Keith Olbermann and Chris Matthews -- described Clinton with sexist language that would likely result a finding of sex discrimination if companies used it to evaluate women employees.

With respect to lawyers, statistics show great disparities that correlate with gender. Although women are just under 1/2 of the summer associates and associates at law firms, they are just 17% of partners. Women hold roughly 1/4 of federal judgeships, and only one woman sits on the Supreme Court. Considering the impact of race and gender status together reveals even greater disparities. Women of color are virtually unrepresented as partners in the nation's law firms and as members of the judiciary. This is the context in which Sonia Sotomayor and all other female lawyers of color exist.

Almanac of the Federal Judiciary: The "Tempermant" Issue
Most of the early reviews on Sotomayor concede that the summa cum laude Princeton and Yale Law School graduate is smart. The worst reviewers, however, say that she lacks judicial temperment. Rather than being firm, but flexible, detached but engaged, her detractors describe her as a firery Latina tempest waiting to knife and brutalize lawyers in the courtroom. A survey of lawyer comments from the AFJ report on Sotomayor confirms this view of Sotomayor among some lawyers:

Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like". . . .

"She dominates oral argument. She will cut you off and cross examine you." "She is active in oral argument. There are times when she asks questions to hear herself talk." "She can be a bit of a bully. She is an active questioner." "She asks questions to see you squirm. She is very active in oral argument. She takes over in oral argument, sometimes at the expense of her colleagues." "She can be very aggressive in her questioning." "She can get harsh in oral argument." "She can become exasperated in oral argument. You can see the impatience." "You need to be on top of it with her on your panel."

The comments, which are racially and sexually coded, remind me of the "negative" description of Hillary Clinton as ambitious. I have never heard ambition stigmatized in a male -- and certainly never in a presidential candidate. But commentator after commentator portrayed Clinton's ambition as a negative quality, and they seemingly never realized how their language rested on stereotypes. For Sotomayor, being a sharp interrogator and requiring lawyers to be "on top of it" are negative qualities. These traits are not negative in most men, certainly not white men.

Some lawyers, however, perceive Sotomayor's "toughness" as a positive judicial quality:

Lawyers said Sotomayor is very active and well-prepared at oral argument. "She is engaged in oral argument. She is well-prepared." "She participates actively in oral argument. She is extremely hard working and always prepared."

Compare the lawyer responses to Sotomayor with the AFJ comments on Justice Scalia -- whom many lawyers consider a tough questioner as well. While lawyers negatively describe Sotomayor's toughness, in Scalia, toughness receives praise, if not awe. Scalia's hazing of lawyers is just part of the understood fun among the brotherhood of lawyers. Although reviewers describe Scalia as tough, this does not make him a dangerous "out-of-control" she-judge. Notice the sporting and friendly hazing metaphors in the AFJ description of Scalia:

Never utter the words "legislative history." If you do, chances are Scalia will interject with a ridiculing harangue that makes it clear he views legislative history as poppycock. Legislative debates are often contrived and can't trump the actual words of the statute, Scalia insists. But even if you play it safe, you can expect tough, persistent questioning from Scalia, often delivered with an almost gleeful lust for the sport of jabbing and jousting with advocates before him. And Scalia is an equal-opportunity jouster; even when his position seems obvious, Scalia will be just as hard on the lawyer he agrees with as the lawyer he'll oppose. Ever the law professor, Scalia will sometimes ask questions with no clear relevance, just to see if you are on your toes. In a now-legendary exchange during arguments on a federal rule that barred the advertising of the alcohol content of beer, Scalia asked a lawyer for Coors to define the difference between beer and ale. The lawyer, the late Bruce Ennis, answered without missing a beat, to the amazement of justices and spectators alike, and Coors won the case. But Scalia can be nasty, as well. When a lawyer once paused too long before answering his question, Scalia said sharply, "You have four choices, counselor: "Yes," "No," "I don't know," or "I'm not telling." But the most important advice on how to sway Scalia at oral argument or in brief-writing is to buy his new book. . . .[One] tip: Don't use the kitchen sink strategy of throwing at the Court every conceivable argument your legal team can think up. Pick your best three, at most, Scalia and Garner advise. "Arm-wrestle, if necessary, to see whose brainchild gets cut."

In Scalia, toughness is positive; in Sotomayor, it is nonjudicial. If Scalia asks irrelevant questions, he is just being a dutiful "law professor" trying to hold the attention of his class. If Sotomayor does the same thing, she is just interested in hearing herself talk. When Scalia duels harshly with litigants, the "spectators" watch in amazement. If Sotomayor asks tough questions, she is seen as difficult, temperamental, and excitable. The disparate treatment is too dense to deny.

Throw Away the AFJ
Instead of using the AFJ's abrasive and biased commentary to evaluate judicial candidates, for over 50 years presidents have consulted the rigorous judicial evaluations prepared by the American Bar Association. When President Clinton nominated Sotomayor to the court of appeals, a "substantial majority" of the ABA judicial committee gave her the highest ranking of "well qualified," while a minority gave her the intermdiate "qualified" rating.

Unlike the AFJ, the ABA interviews a broad cross-section of lawyers, law professors, judges and other people who have professional contacts with the judicial candidate in order to construct an accurate picture. I strongly encourage people who care about gender and racial equality to deconstruct the gender-coded "temperament" argument and to ignore the AFJ and Rosen's citation to it.

Note: I found the AFJ on WESTLAW, which is a paid legal research database. I cannot link to it. If someone has free links to the AFJ sections on Scalia and Sotomayor, please feel free to post them in the comments section.

Links for all Sotomayor-related materials on one convenient page: Sonia Sotomayor on Dissenting Justice

On My Reading List - Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel

A growing body of legal and political science scholarship attempts to demonstrate that courts operate in a political and cultural context. In the United States, this work has examined how evolving international and domestic politics have influenced judicial opinions in the context of civil rights, economic regulation, and other important issues.

This important scholarship places judicial opinions in a broader social context, and it provides a framework for understanding court doctrine as a product of legislative, executive, and social movement activity. For that reason, I am excited to find the following recent publication: Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel.

Synopsis
Patricia J. Woods examines a controversial issue in the politics of many countries around the world: the increasing role that courts and justices have played in deeply charged political battles. Through an extensive case study of the religious-secular conflict in Israel, she argues that the most important determining factor explaining when, why, and how national courts enter into the world of divisive politics is found in the intellectual or judicial communities with whom justices live, work, and think about the law on a daily basis. The interaction among members of this community, Woods maintains, is an organic, sociological process of intellectual exchange that over time culminates in new legal norms that may, through court cases, become binding legal principles. Given the right conditions--electoral democracy, basic judicial independence, and some institutional constraints--courts may use these new legal norms as the basis for a jurisprudence that justifies hearing controversial cases and allows for creative answers to major issues of national political contention.

Advanced Praise
"This well-written book makes an important contribution by pushing the analysis of the controversies surrounding judicial intervention/activism to take ideas seriously. It provides a very persuasive account of Israel's High Court of Justice's involvement in religious issues and the key role of the judicial community in precipitating that involvement. At the same time, Woods attends to the roles of institutional factors and social movements in facilitating the controversial rights actions/decisions of the HCJ. This book is a must read for scholars of law and politics."

-- Austin Sarat, Amherst College

"The author's notion of an extended judicial community of judges, academic lawyers, and cause lawyers is a major move forward in the `new institutionalism' in the study of law and courts."

-- Martin Shapiro, Boalt Law School, University of California at Berkeley