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Martha Nussbaum on Women in the Campaign and the Court

(This piece was originally published in the Philadelphia Inquirer on November 24. It is reposted here at the request of Professor Nussbaum, who welcomes discussion on the subject in this forum.)

Thomas Jefferson liked women - up to a point. They were fine as wives, daughters or mistresses, but they had better not try to enter the political realm.

"Were our state a pure democracy," he wrote to a friend in 1816, "there would yet be excluded from their deliberations . . . women, who, to prevent depravation of morals and ambiguity of issue, should not mix promiscuously in the public meetings of men."

Such "ideas" die hard. When I was elected as the first woman in Harvard's Society of Fellows in 1972, a prestigious classical scholar wrote to me that he didn't know what to call a female fellow. Perhaps the ancient Greek language could solve the problem, he suggested. Since hetairos is Greek for fellow, they could just call me hetaira.

As he and I knew well, however, hetaira was also the Greek word for high-class prostitute.

Such "jokes" reinforced the old Jeffersonian stereotype: Women are frivolous, distracting beings, all about sexuality, so they'd better not go near those important public gatherings.

For many women, this past election promised the end of exclusion from the nation's highest offices. Thrilled by the prospect of a woman in the White House, they were all the more disappointed when those old stereotypes kept surfacing throughout the campaign.

Hillary Clinton and Sarah Palin endured a level of scrutiny of their appearance and behavior that is not applied to male candidates. Was Hillary too angry? Not tough enough? Is Palin a soccer mom? A sex object?

Sure, we did hear about Barack Obama's upscale suits and Biden's temper, but not to the same extent - and not with the same tacit demand to prove that their biology should not bar them from the "public meetings of men."

Actually, though, this election marked a victory for women's interests. Obama has done well among women ever since Iowa, where more of them voted for him than for Clinton. Predictions of massive defections of women after Clinton's defeat and Palin's nomination proved unfounded. It was, after all, a silly notion: Women are adults who care about many things - the economy, the war - and are capable of making an intelligent choice based on issues.

Especially on issues of particular concern to women, there were strong reasons to choose Obama and Biden, including their positions on health care, abortion rights, and particularly domestic violence, which remains a national scourge.

On the one side, women had Joe Biden, one of the real feminist pioneers of American politics and the chief author of the Violence Against Women Act; and Obama, whose commitment to women's equality, though less-documented, seems entirely convincing. On the other, they had McCain, with his old-fashioned insensitivity to women's problems; and Palin, with her mean-spirited policy of not paying for post-rape medical examinations in Wasilla, which no doubt deterred countless women from reporting the crime.

But if women's issues are paramount, what about their presence? Jefferson thought that nice men could represent women, too - an ugly, patronizing idea. Presence, though less important than the issues, still counts for a lot.

The presence of women in high office breaks old stereotypes. It establishes models of achievement. And it ensures that people with firsthand experience of women's issues, such as domestic violence and sexual harassment, will be involved in public policy.

So, even though women were wise to focus on the issues, they should still demand the appointments of women to key positions.

The contributions of women are especially important on the Supreme Court. If women are represented inadequately there, it sends a signal that they are less deliberative than men - less capable of the weightiest sort of reflection.

After the retirement of Justice Sandra Day O'Connor, Justice Ruth Bader Ginsburg commented that, with two women on the court, the symbolic message was: "Here are two women. They don't look alike. They don't always vote alike. But here are two women." She worried that a lone female justice looks like a "one-at-a-time curiosity, not the normal thing."

Beyond the symbolism, Ginsburg often touches on women's experience in her opinions. She shows that key legal concepts, such as the equal protection of the laws, require us to think substantively about women's lives and the obstacles that stand between them and full equality.

So Obama needs to appoint top women to his administration. And he needs to heed Ginsburg's advice, ensuring that there will be more than one woman on the Supreme Court. Given the likelihood that Ginsburg's own retirement will create one of the first two vacancies, this means his first two appointments probably should be women who understand women's issues. One of them should be Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit in Chicago, who is respected by both right and left for her superb technical competence and legendary work ethic.

Women have won a lot on the issues. Now we need to keep up the pressure for presence.

Full post as published by The University of Chicago Law School Faculty Blog on November 26, 2008 (boomark / email).