Legal Commentary

Lisa Belkin has published an article in the New York Times magazine quoting commentators who ask whether it "sends the 'wrong' message" to girls and young women to nominate single, childless Kagan for the court.  Belkin quotes Peter Beinart's post at "The Daily Beast," saying that he thinks Obama should have chosen Judge Diane Wood, because she would provide a better "role model" for the young women of America who want children.  Belkin herself concludes that maybe "the Kagan nomination sends the 'wrong' message, but [that] at the moment, it is also a realistic--and cautionary--one." 

Nominations may in part be about "sending messages," but closing the gender gap for parenting women will not be achieved through role models alone.  "Role models" can raise expectations, but they are largely about optics.  Change takes, well, change. 

In fact, exceptional "role models" may be crazy-making, urging women to juggle numerous endeavors--any one of which previously occupied an adult's full attention--without any material supports in sight.  On any given Tuesday, you can find yourself asking, "Why can't I be Ruth Bader Ginsburg minus Marty (by the way, the working women of America love you, Marty, you're the berries), while also picking up my kids from school, helping with homework, and making dinner?"  And the fact that so many high-performing women are at home with their kids ratchets up the mothering standards.  In privileged communities, mothering is a professionalized field, in which many women are focusing all of the executive functioning gained through grad school and career on their kids.

My take on it?  We don't talk to highly-educated, ambitious young women about making deliberate life choices.  We tacitly encourage them to plan the biography of their 20s and early 30s in the long-standing, hoop-jumping path traditional for young men who anticipate having a partner bearing, nursing, and raising their kids.  Then at some point in their mid-30s they hit the wall; realize they have assumed all along that they will have children and don't know how that will happen (or how they can bankroll the supports necessary to make it happen); and then either "opt out" or scale back their career to take on the primary care-giver role. 

A law professor friend of mine once admitted to me that "we don't want to talk" about women opting out.  Why not?  Because we don't want to return to the bad-old-days when women were denied opportunities on the theory that they would "just have kids" anyway.  And also because we want them to keep trying, and hope they will find a way. In other words, it's in part hortatory propaganda. 

But aspiring parents of both genders need more than that.  For men and women to be both engaged parents and high-performing professionals, we will have to make some change in how we organize work and family.  And we will have to talk to young people about the choices that they make.  Until we do this, you can guess which gender will be disparately impacted.

Optics are great, but, at best, they don't get you all the way there, and, at worst, they can create an expectation gap.