This Supreme Court nomination is a testament to the values of feminism
In her book, “In My Own Words,” Justice Ruth Bader Ginsburg wrote how feminism is a concept best captured in the song “Free to Be You and Me” by Marlo Thomas. That definition defined feminism as allowing women to decide their values without societal dictates or limits.
This view sharply contrasts with some who think feminism is adhering to liberal orthodoxy. Ginsburg never believed feminism meant removing the “feet off our necks” by her brothers just to have them replaced by the feet of her sisters. Indeed, true feminism meant allowing women the freedom of choice to find their own voices and values in society.
That is why this nomination of a Supreme Court justice is a testament not just to feminism but to Ginsburg. The women on the short list of President Trump bear striking resemblance to her in their independence and clarity of thought. Most of them, like Ginsburg, balanced family obligations with their career ascensions. The difference is these women reached different conclusions on how the law is read and applied. Many do have legitimate objections for issues like abortion as inimical to the rights of women, but these women are part of the legacy of Ginsburg and her generation in an empowerment of women to reach their own conclusions.
The nominee most like Ginsburg is Judge Amy Coney Barrett. They both finished law school at the top of their classes. Both went on to teach at leading law schools and both started their careers with an emphasis on procreational rights and constitutional interpretation. Deeply religious, both cited the role of faith in their careers and convictions.
Like Ginsburg, Barrett refused to yield to the choice of family over career. Barrett has raised seven children, including two adopted from Haiti, while rising to national recognition as a brilliant lawyer and jurist. Both women earned a reputation for civility and what Ginsburg described as showing us that “you can disagree without being disagreeable.”
Ginsburg came to the Supreme Court with a deeply rooted jurisprudence. She was one of the most consistent votes siding with liberal justices over decades of rulings. In the split votes, she was the common denominator on the left side. Barrett, a former Supreme Court clerk of Justice Antonin Scalia, holds the same profile as a jurist with a clear sense of the law and principles that have fueled her decisions. The principles are different but not the independence of thought shown by both jurists.
More than any nomination in history, this is a celebration of conservative feminism. It comes close to the day of the confirmation of Justice Sandra Day O’Connor. She was selected in part because her record was a virtual blank slate, without notable remarks or opinions. Her vetting team loved the idea of an unknown nominee, a model used in future administrations. She told President Reagan that she could not even remember her stance as a legislator when it came to the repeal of abortion rights.
These women, however, have not been subtle or silent in their views. That is why this nomination is the conservative feminist movement realized. For decades, conservative women across the country have refused to accept that they have second class status in the feminist movement. The famous “Declaration of Sentiments” signed by pioneer feminists in 1848 spoke to their independence and choices as much as those on the left.
The women on the short list of Trump have distinguished themselves in claiming the mantle of that struggle for equality. They fiercely defended constitutional values. Many overcame incredible obstacles to have their voices heard. The family for Judge Barbara Lagoa fled communist Cuba with nothing a year before she was born. She graduated from Columbia Law School and became a judge on the Eleventh Circuit, all while raising her children. Judge Joan Larson is a brilliant jurist who graduated first in her class from Northwestern Law School. She became a professor at the University of Michigan after clerking on the Supreme Court.
For all his controversies, Trump has chosen remarkably strong nominees for the Supreme Court. Some critics believed he would place Judge Judy on the bench. Instead, Trump has favored highly respected conservative jurists with great records. They have not been blank slates but those with articulated principles. They have crossed the political divide when those principles demand it. This is why I testified in favor of the nomination of Neil Gorsuch, who I view as an intellectual of the first order. Both he and Brett Kavanaugh have voted against the administration.
The short list for this nomination was also impressive. These women are highly qualified jurists who have shown the courage of their convictions. They hold records that match those of Elena Kagan and Sonia Sotomayor. They are not blank slate nominees but instead conservative women who have boldly written about their views on legal theory. Many tried to put a “foot on their necks” but none succeeded. They are what Ginsburg liked about the song by Thomas. “Every boy in this land grows to be his own man. In this land, every girl grows to be her own woman.”
Many seek to paint these jurists as ideologues because they consistently vote on the basis of the conservative stance. By this exact same measure, Ginsburg also would be the ideologue who had one of the lowest number of defections to the other side in major cases. In the confirmation hearing for Kavanaugh, Senator Sheldon Whitehouse had raised this issue, asking, “When is a pattern evidence of bias?” Whitehouse noted a voting pattern by the five convservative justices who “go raiding off together.”
But he ignored the four liberal justices. They were not seen as ideologues by Whitehouse because, of course, they were viewed as right. Despite his complaint and those with other Democrats, Gorsuch and Kavanaugh have voted with the liberal justices in major decisions. The nomination today is a wonderful moment for this woman selected but also a historic moment for conservative feminists. They are part of the “you” which went with the “me” in the definition that Ginsburg showed us for feminism.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.