Why Do Women Judicial Candidates Get Questioned on Their Sex Lives?

Republican Sen. Jeff Sessions is not supportive of Elena Kagan’s nomination to the Supreme Court. He believes she is too liberal and that her vast academic experience is not a substitute for experience “in the harness of the law.” But at least media speculation about her sexuality has not become an issue in her confirmation hearings. Not yet, at least.

Judicial appointments always generate substantial interest, but appointing women to top courts seems to produce a peculiar brand of anxiety, curiosity and consternation. I’ve experienced this firsthand. A few years ago I was shortlisted for a vacancy on South Africa’s equivalent of the U.S. Supreme Court. In South Africa, candidates are interviewed by the Judicial Services Commission, a body composed of judges, lawyers, legal academics, politicians and members of civil society. During my public interview, one of the commissioners suggested that I “get a boyfriend” as an incentive to return to South Africa (I reside in the U.S.).

I was flabbergasted, and unsure whether I should laugh or respond angrily. “You’re kidding,” I responded, giving him the opportunity to rectify what I considered an insulting question. He repeated the question. After an uncomfortable moment I was asked another question by a different commissioner. This exchange was not lost on the press.

If I was a man, would I have been asked about whether a girlfriend would bring me back to my homeland? My guess is no- the question reflected the stereotype that men migrate for professional reasons, women for “love”.

And I’m not alone among women judicial candidates in facing bizarre questioning or out-of-proportion reactions during the screening process.

Remember the hysterical response to Supreme Court justice Sonia Sotomayer’s statement that “a wise Latina woman with the richness of her experience” might more likely reach a “better conclusion than a white male who has not lived that life”? Conservatives claimed she was suggesting that her Latina identity would bias her decisions. But one wonders if such a statement would elicit a comparable reaction if uttered by a man. There was little outcry over Justice Alito’s statement, in a similar vein, on how his experiences as an Italian male shape his worldview.

Already, it’s been suggested that Kagan’s unmarried status (and a photo of her playing softball!) is evidence that she is a lesbian. Would a single male judicial nominee receive the same kind of scrutiny regarding his sexuality? Similarly, some years back, when applying for a promotion to a higher court, a South African judge who is a lesbian was asked whether having a woman as a partner would be a “hindrance” to her colleagues.

Why should the sex life of female justices matter? Why should their personal lives be a “hindrance,” or “get a boyfriend” be a viable piece of advice? The intrusive curiosity seems to reflect an inability to accept the competence and mental equilibrium of women judges. There appears to be an underlying fear that without the “balance” of a heterosexual home life, female judges will emotionally disintegrate from the stresses of the position.

Such attitudes should be of great concern to us, because the appointment of women judges is not just morally the right thing to do. Studies show it is necessary if the legal system is seen to represent marginalized individuals and groups, and, more importantly, if the legal system is to retain its credibility with the majority of the population.

Women judges also bring a different judicial voice, which makes sense given the discrete experiences of women as the major caregivers of children and the elderly. As Justice Sandra Day O’Connor has noted, “Women professionals still have primary responsibility for the children and the housekeeping, spending roughly twice as much time on these cares as do their professional husbands.” Women more openly exhibit concern about issues such as reproductive rights, sexual harassment and maternity leave.

Take, for example, the two first women judges of the South African Constitutional Court, Justices Yvonne Mokgoro and Kate O’Regan. The two decided a prominent case regarding an action former president Nelson Mandela took shortly after his inauguration, pardoning all female prisoners (except the most dangerous) who had children under 12. The challenge by a male prisoner who was similarly situated was rejected on the grounds that this on-the-face-of-it discriminatory pardon did not violate the principle of substantive equality. In other words, Justices Mokgoro and O’Regan looked at the reality of women’s lives in South Africa, noting that they are the major caregivers of children, and concluded that they would overwhelmingly benefit from the pardon.

Many people in the U.S. probably believe that justices Sandra Day O’Connor and Ruth Bader Ginsberg made a positive difference regarding the issue of gender equality by virtue of being women, as well as by the force of their intellect and knowledge. Justice O’Connor voted with the majority not to overturn Roe v. Wade in 1989, while Justice Ginsberg recently was the deciding voice in ruling the strip-search of the young woman plaintiff unconstitutional, noting that her colleagues “have never been a 13-year-old girl.”

The very presence of women judges challenges the traditional image of the detached, neutral judicial figure–essentially male–that has pervaded law practice and legal education. Women judges open the possibility that judging itself requires an aesthetic of empathy, understanding and compassion. These traits create the space for a wider societal understanding of the judge as quintessentially human, not a distant judicial automaton. Diversity on the bench, whether based on race, gender, sexuality, or disability, opens the possibility of a court that embraces a cacophony of societal voices and perspectives, removed from the historical singular voice that is neutral, impassive and detached.

As a woman, Elena Kagan will certainly make a difference on the Supreme Court–helping its credibility, challenging the notion of the white male judicial automaton, bringing a distinct worldview on issues of concern to women, and providing inspiration to other women that they can potentially be judges. Most significantly, in Kagan’s case, a third woman on the U.S. Supreme Court may just provide the “tipping point” that will render the return button inoperable.

ABOVE: Elena Kagan in 2008, during her tenure as dean of Harvard law school. Photo from http://www.flickr.com/photos/hlrecord/4595799520/ Creative Commons Attribution 2.0 Share Alike

Comments

  1. JM Calvo says:

    This is an insightful and timely essay. I particularly appreciate the author’s comparative narratives, which give an international perspective to the issue.

  2. David Nadvorney says:

    Both single men and women clearly represent a threat – or at least a challenge – to the dominant cultural requirement of heterosexual, coupled status. Deviation, either via sexual orientation or “commitment” status is viewed with suspicion or alarm. Being asked “Are you seeing anyone,” with the unspoken but implied “yet” is routine in the lives of single people, as if being single could not be a choice unless it is so that one can be “promiscuous.”
    Close behind is the requirement of children, for all candidates of all persuasions. The combination of coupledom and parenthood encodes the message, “I’m O.K., don’t worry, I’m just like you.” It seems that we still have a way to go to achieve inclusion. Hats off (pardon the male context) to both Kagan and Andrews – and countless others – who live their own lives doing good work and demanding respect.

  3. Jane Marcellus says:

    It’s curious to me that speculating on single people’s (esp. women’s, but men’s as well) sexual identity and relationship status is still culturally tolerated. Feminism has never addressed–really–the oppressive combination of curiosity and suspicion that single people get. There’s an illusion that this has changed, but that’s not my experience. Being single makes still makes people anxious.

  4. Am in total agreement with the foundation set by this article. Is it even constitutional to question an agnostic candidate on his beliefs or a woman on her sex life? Societies, including those in constitutional democracies grapple with rights, freedoms and liberties & assume that power plays still dominate where one view supercedes another. It is clear thus that to a large extent both men & women interchangeably are regarded as, or regard themselves (openly or closeted) as the pawns and kings, sometimes even queens on this checkered board of life’s chess and opera. The age old tools of discrimination undoubtedly remaining ethics, law and morality – constantly ensuring a chasm between that which is perceived as right and wrong, superior and inferior. Law, Aristotle opined, is mind without reason. Prejudice, I maintain, is reason without mind.

  5. Jennifer Nunes says:

    Brava Penny Andrews. You have said it all for all of us women who are indeed exhausted by the double standard. Yes, women have made “gains” but the glass ceiling remains heavily coated with concrete by the old guards. These men would have us return to the “normalcy” they ordained for us, a life based on the [archaic] “Origins of the family, private property and the state.”

    It is alright to show that you are bright and capable, as a women – on one condition; that you know your place/when to step back and assume the role of the “traditional woman,” the “Stepford wife,” maybe? You can’t enjoy “freedom of choice or association and not in some way be penalized by men with “small egos.” Definitely not. Somehow, I really believed we had gone past that. Silly me!

  6. Penny Andrews hit on something about women that is overlooked or ignored in American culture:

    “The very presence of women judges challenges the traditional image of the detached, neutral judicial figure–essentially male–that has pervaded law practice and legal education.”

    The traditional image of females throughout history has been one of iconic connection to either covens or convents with nothing in between. From the beginning,the idea has always been that women need a male handler. We have not yet begun to challenge this belief because so many women still accept it as truth.

    After spending a decade researching the reason why women are thought to be inferior to men, the evidence falls on the side of irrational thinking and religious influence as the apparent causes. For a taste of the ammunition used against us, see http://www.juliahughesjones.com

  7. Tom Vitale says:

    Why Do Women Judicial Candidates Get Questioned on Their Sex Lives?
    my answer in one word: MISOGYNY

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