By Susan Brooks Thistlethwaite
When Elena Kagan is confirmed by the Senate and becomes a justice of the Supreme Court, she will join Sonia Sotomayor and Ruth Bader Ginsburg in making history. Three women, fully one third of the court, will be serving at the same time. They are likely to change the Supreme Court in ways that go far beyond even their numbers. These are not only three highly intelligent and accomplished women, they are also “wise” women. They are “wise” both in the sense meant by Sotomayor when she made her famous comment about “wise Latinas,” and in the biblical sense, as wisdom is often personified as female and a public advocate for justice. “Wisdom calls aloud in the street, she raises her voice in the public squares.” (Proverbs 1:20)
In many speeches, prior to being nominated to the Supreme Court, Sonia Sotomayor referred to her life experiences as a woman and a Latina and expressed the hope that this was part of what helped her reach good judicial decisions. “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.” Not just different conclusions, she seemed to be saying, and once actually did say, but better decisions than those “white men” who lacked the experiences of being both female and non-white.
I believe this means that the view from “outside” the realm of privilege can give a person more insight than the view from “inside” privilege. Elena Kagan and Ruth Bader Ginsburg, both women and Jewish, also share this “outsider” experience in terms of both gender and religion. One cannot argue, of course, that exceptional Ivy League educations, an experience all these women share, are totally an aspect of “outsider” status. Yet, even there, to be a woman in an elite institution and a high-performing professional in a male-dominated field does teach one that gender, in particular, matters in how one is treated, and thus how one sees the world. It is no accident that Ginsburg has spent a considerable portion of her legal career advocating for the equal citizenship status of women and men as a constitutional principle.
The Judiciary committee is scheduled to vote on the appointment of Elena Kagan to the Supreme Court this week. Conservative opposition is increasing,and a delay may occur, but the votes are there to confirm. It’s just a matter of when.
The arguments for conservative opposition are interesting, and revealing. Senator Orrin Hatch of Utah, a senior Republican and member of the committee, announced his opposition because, in his view, Kagan did not hold “the appropriate judicial philosophy.” That “appropriate judicial philosophy” apparently means the pretense to “objectivity” that, for example, Judge John Roberts so staunchly maintained in his confirmation hearings was his judicial philosophy. That was, of course, until Roberts joined the court. He has now shown himself to be a conservative judicial activist. People of privilege often do delude themselves that they are being objective, when they are in fact captive to their own life experiences and yet have not been forced, by having to live as an outsider, to consider the “view from below.”
Being “wise” like a Latina, and like the biblical figure “Wisdom” does not entail a pretense to objectivity. In both the Christian and Jewish scriptures, wisdom is the sense of justice like that of King Solomon; the idea that judging fairly means looking into the complicated human emotions that often drive legal conflicts, and that make judging so difficult. (1 Kings 3) But biblical Wisdom is not just wise judgment; Wisdom is also creative. Wisdom is there with God even before creation, and Wisdom delights in human beings. (Proverbs 8:22-31) Wisdom is mentioned more than 200 times in the Bible, and not only in the personified female figure of Wisdom, nor the wisdom of the mighty like Solomon. All people are encouraged to increase in wisdom as in both Proverbs and Psalms.
Women don’t “own” being wise–and not all women’s life experience has made them wise. But perhaps one of the reasons the biblical figure of Wisdom is personified as female is that women have not had much access to power and privilege in human history. Women have had to learn to be wise through insight, and through cultivating relationships that help them achieve their ends. Women have learned to use power indirectly, and employ the power of persuasion and the wisdom of insight into human experience to do so, and in the case of these three women, to do so effectively.
That’s why I think three “wise” women will change the Supreme Court. It’s not really a matter of how they vote, but rather how they arrive at those decisions.