Legal Commentary

Earlier this week, I posted a short rumination about my disappointment that we are likely to soon face a mom-less Supreme Court.  Today, Ann Gerhart takes up the issue in the Washington Post (The Supreme Court Needs More Mothers).  Her article, which touches on a number of the points raised in my post (we cite to the same NY Times interview of Justice Ginsburg), also covers new ground. I found the following passage of particular interest:

In saying he wants justices who have "heart" and "empathy," and who understand "how our laws affect the daily realities of people's lives," Obama has invited us to ask who has a life outside work and who doesn't. That's hard to determine in a confirmation process that will require Kagan, like Sotomayor before her, to crimp her personality and bite her tongue.

Motherhood offers a one-word verifier. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and intimacy, all outside the workplace. Much of the time, it's the opposite of being strategic and assiduously prepared.

It's a story we understand without needing all the details.

Interesting . . . so being a mom is a proxy that assures us that these modern day nominees who, chastened by a post-Bork confirmation process, have assiduously tailored their lives and sterilized their "records" are not in fact unfeeling robotrons of academic and professional achievement but indeed harbor the usual complement of human qualities.  

Because those of us who are or have been moms or have witnessed the phenomenon close up know that moms are routinely humbled by an exhausting, entropy-creating whirlwind of spit up, mystery ailments, practical conundra (how the bleep do you fit the bleeping straw in the bleeping sippy cup), and perilous judgment calls (is 103 high enough to warrant a midnight call to the doc?).

I don't credit this as a substantive rationale for wanting a mom on the court -- I have yet to meet a living, breathing (?) unfeeling robotron of the sort mentioned above.  Scratch the surface and everyone has joys, fears, and doubt-inducing intense life experiences even if they don't have the mom badge to prove it.  Regardless, I think that the broader point is compelling, namely that the confirmation process seems to have driven, in turn, a grooming and selection process that delivers pure-as-driven-snow (well, at least based on the official record) nominees who seem never to have made a misstep or evidenced human foibles.  Their lives are tidily presented through carefully packaged narratives.  I agree with Gerhart's point that this artificial perfection is in tension with the selection criteria that President Obama publicly endorses. My wager is that the Obama team, reading the response to Kagan's nomination, is already cottoning to this point and that we'll be seeing some warm, fuzzy (but most importantly kind of messy) Kagan human interest stories start to make the rounds.