Legal Commentary

I want to add another random thought about the Kagan nomination to Howard's list.  Ok, it is not quite as random as the fact that she does not hail from the Gem State, but it is quite likely to land me in some hot water.  So I'll just blurt it out, provide a little (hopefully protective) explanation, and then run for cover: 

I find myself a little deflated that neither Justice Sotomayor nor nominee Kagan is a mother.  

I've tried to do a little soul searching about the source of this disapointment and also subject it to some critical analysis.  Some view the fact that these incredibly accomplished women do not have children as evidence of the continued difficulties, for women in the legal field in particular, of balancing work and home.  I don't think that's what is troubling me (although the work/life balance issue was my first thought upon reading Lyrissa's recent post about women at law firms). 

My own reaction (which frankly caught me by surprise) is rooted more in a personal belief that the perspective of a mother is an important one to have on the Court.  But I readily admit that this gut instinct may not hold up to more rational, intellectual examination -- at least in terms of providing a basis for valuing that element of diversity of experience above others.  And I recognize that the childlessness issue is being bandied about and abused in ideologically-motivated rants that I want nothing to do with.  There are many caveats to this discussion, the most important of which include:  I don't wish to suggest that a female nominee should be rejected or passed over because she is not a mother.  I recognize that there have probably been a disproportionate number of marrieds-with-children on the Court and that an argument can be made for the value of a different voice.  Yes, I realize that Justice Ginsburg has children (so there is a mother's perspective . . . for now), as do many of the male justices.  To sustain this proposition, it is necessary to think that there is something valuable about a mother's (as opposed to father's) perspective.  And I know that there are a thousand shades of mothering (biological, adoptive, step) and another thousand reasons why women don't become mothers (choice, circumstance, infertility).

But with these caveats, back to assessing the general proposition -- is there reason to value having the perspective of a mother on the Court? 

I think so, yes.  Most women in the U.S. become mothers, many experience it as a very significant life experience that shapes their world view, there are aspects of mothering that differ from fathering (whether as a result of biology or gendered societal expectation), and a variety of important cases implicate rather directly some aspect of the process of becoming or fact of being a mother.  The value of the mother experience thus finds general support in many of the explanations offered by Justice Ginsburg and others for the value of gender and other kinds of diversity on the bench.  (I'll avoid the philosophical debate about applying, interpreting, and making the law by stating outright that I think life experience indelibly imprints judging and judicial outcomes.) 

But it is easy to defend, generally, the value of diversity of experience on the bench.  The harder question is how valuable is this element of diversity -- valuable enough to pursue and seek out this particular perspective and experience?  Keep tabs on whether we have a mom justice?  After all, besides being a (new) mom, I'm also from Idaho and, as a westerner, likewise somewhat put out by the increasing lack of both educational and residential diversity on a Court that skews east.  If I had to pick, I'd insist on a mom well before an Idahoan (or other westerner).  But after Justice Ginsburg retires, will I oppose any non-mom nominee (male or female) regardless of the nominee's other attributes?  Probably not.  But I'll feel a bit deflated.