Should the Law Force Women to Take Their Husbands' Last Name?

One of the earliest "gender" moments I can recall from childhood involved me questioning why my mother's last name differed from her brothers' and my cousins'. "She's married." That was the simple answer that failed to compute. My response: "So is Uncle _____." My early lawyering gave way to the inevitable "stop asking so many questions," and I let it go.

A new survey released today indicates that young social rebels will likely continue asking some version of my question for generations to come. According to a survey by the American Sociological Association, 70 percent of Americans believe that a woman should take the last name of her spouse. 50 percent believe that the law should mandate this change. Now that's big government!

Sources:

USA Today
Salon.Com
NY Daily News

THIS IS NOT CHANGE

As much as some political commentators try to dismiss the role of race (and gender) in the 2008 presidential election, the facts say otherwise. Obama won the election on the strength of women, black and Latino voters. McCain won a majority of white votes nationally, as has every other Republican candidate starting with the 1968 election.

During his campaign, Obama tried to downplay and market his race simultaneously. He ran as the "historic" candidate, which subtly referenced his racial background. He also ran as the post-racial candidate, in order to avoid being racialized and dismissed as the "black" candidate. Despite its sometimes subtle presence, race played a very powerful role in Obama's candidacy, message and election victory.

Although Obama relied upon identity politics for his electoral success, the White House is instructing GLBT, Latino and women's groups to kill the identity talk. Several GLBT, Latino and women's civil rights groups have urged the president to pick a candidate who will enhance the Court's diversity. No openly gay or Latino person has ever sat on the Supreme Court. Only two women (both white) have occupied a seat on the Court. And two black men have also served on the Court.

I agree that the candidate should not look like a "token" hire, but there are many persons of color, women, and GLBT lawyers who would make excellent Supreme Court justices. There is absolutely nothing wrong with considering diversity as a factor among evenly talented candidates. Reagan appointed the first woman, and gender played an explicit role in the selection process. Bush I appointed the second black justice only after the first black justice retired. Perhaps that was a mere coincidence.

Despite this history, White House officials sound more like Republicans picking a justice than Democrats. They are falling for the utterly hypocritical, ahistorical, and self-serving conservative rhetoric that condemns the consideration of ideology in the appointments process. Apparently, Alito, Roberts, and Scalia are coincidentally conservative.

Now the White House is doing its best to toss aside the very identity-based movements and politics that won the election for Obama. Press Secretary Robert Gibbs says that: "I don’t think that the lobbying of interest groups will help. . . .I think in many ways lobbying can – and will –be counterproductive." Of course, Gibbs never identifies the dangers the groups create by stating their preference for diversity. Also, it seems odd that Gibbs would disparage "special interest" groups, when labor, civil rights, feminist, pro-choice, anti-war, glbt, and many other "interest groups" are essential components of the Democratic Party. Without their support, neither Obama nor Gibbs would have a job at the White House.

This is not change.

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