Jeff Toobin Got Ruth Bader Ginsburg Totally Wrong

In the March 11 issue of The New Yorker, Jeffrey Toobin pens a profile of Justice Ruth Bader Ginsburg, who is celebrating her 20th year on the Supreme Court this year. Though the piece (which he fleshed out in an interview with Fresh Air's Terry Gross this week) has some highlights—I defy you to read the note Ginsburg's husband wrote to her a week before his death without tearing up, and the descriptions of the 90-pound justice as a gym rat are priceless—Toobin utterly mischaracterized Ginsburg's years as a feminist litigator. He misses the point of her work entirely—and overlooks how revolutionary and paradigm-shifting that work truly was.

Toobin notes Ginsburg's first success in the Supreme Court, in the Reed v. Reed case. The Court invalidated a state law that said that, where a man and a woman are both qualified to serve as an executor of an estate, the man must always be preferred. After that, Toobin writes, Ginsburg "launched a series of cases targeting government rules that treated men and women differently."

The process was in keeping with Ginsburg's character: careful, step by step. Better, Ginsburg though, to attack these rules and policies one at a time than to risk asking the Court to outlaw all rules that treated men and women differently.

In the Fresh Air interview, Toobin elaborated: 

GROSS: You describe her approach in litigating women's rights as incremental, case by case as opposed to one sweeping case that would say women have to be treated equally in everything, and therefore a lot of laws will just have to be rewritten.

TOOBIN: That's right. And that's very significant, particularly when you start looking at her judicial career because Ginsburg is a methodical person, and she understood that the best way to win at the Supreme Court, or so she thought, and history proved her right, at least in her case, that you don't ask for too much.

He noted that Ginsburg "didn't ask the court to rule that all differences between the sexes, in terms of how they were treated under the law, were unconstitutional," a cautious approach he attributed to her view that "it's better to ask for narrow relief, ask for specific victories in specific cases rather than ask them to rewrite the law of sex and gender in the United States."

This is crazy. And a completely blinkered view of Ginsburg's enormous accomplishments in the 1970s. Ginsburg didn't bring a single unifying case asking the Court to declare that the Constitution requires exactly equal treatment between because that's not what she believed. It was not different treatment per se that Ginsburg fought against; it was the many legal codifications of stereotypes about gender norms that were unconstitutional, and in need of destruction.

Cary Franklin, a professor at the University of Texas Law School, has convincingly documented that the 70s-era feminist litigators were not driven by a desire for “formal equality” that would force women into men’s roles. Rather than forcing women into men’s world, Ginsburg strove to remake the social meaning of men’s and women’s roles altogether—or, at least, to ensure that the law could not cement those traditional notice of men’s and women’s place in society.

Ginsburg's cases thus sought to dismantle the legal codifications of stereotypical views of the roles that men and women should play in society—not to demand equal treatment in all things. So she brought the Reed to challenge the stereotypical view that men were more financially literate than women. And she brought the Wiesenfeld case, which Toobin also mentions, to challenge the stereotypical view that men have no business being stay-at-home parents. She brought Frontiero, a case about military spousal benefits, to challenge the stereotype that women were always dependent on their husbands, and that husbands were never dependent on their wives. And her brief in Craig v. Boren—a case about a law allowing 18-year old women but not men to buy some beer--argued that the law was premised on stereotypical views of what young men and young women "were like."

And these weren't just arguments Ginsburg was presenting to the Court. The Court, under Chief Justice Warren Burger, bought it. For example, if the Court were simply concerned about equal treatment, then it could have required both men and women to prove their dependence on their spouse to receive survivor benefits in Weisenfeld. Instead, it held that neither did—and that requiring husbands but not wives to do so was an unconstitutional codification of gender norms. Even if the assumption that men are more likely to be the primary earners had some statistical validity, the Court wrote, "such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support."

So when Toobin makes it seem like Ginsburg was just some practical-minded incrementalist, he fails to give her credit for the society-shaking, frankly revolutionary approach she was taking—and that she got the Burger Court to buy into: the idea that what was problematic was not unequal treatment per se, but rather unequal treatment that was premised on role-defining gender stereotypes.

Toobin is at his best when he provides behind-the-robes glimpses into the Court, whether it's Justice O'Connor's aerobics classes or Justice Souter's utter dismay at the Bush v. Gore decision. When it comes to legal analysis, though, he has trouble looking beyond conventional wisdom. It's frustrating that in writing about one of the giants of the feminist movement, he sells the towering Justice Ginsburg so short.

Hey NPR! Women Intellectuals Exist!

If you're like me, you can tell time by the NPR show playing on your radio. The nasally guffaws of Click and Clack on a Saturday morning tell me I've slept way too late. At night, BBC's World Service tells me to get in bed and turn out the light. And Intelligence Squared, the weekly "Oxford-style" debate show I have recently discovered, tells me it's time for an entertaining and thought-provoking Sunday lunch.

An entertaining, thought-provoking, male-dominated lunch, it turns out.

Intelligence Squared is an hour-long debate show whose podcast gets over 100,000 downloads each month. The show presents a proposition--for example, "Israel Can Live with a Nuclear Iran"--and brings in four to six panelists to debate it. The audience votes at the start and the end of each debate, and whichever side moves the most voters wins. The show, which airs on over 200 NPR stations--and, as of January, will air nationally on PBS--aims to "bring together the world’s leading authorities on the day’s most important issues," according to its website. But an analysis of the entire 69-debate history stretching back to 2007 reveals that the show all too often defines the "world's leading authorities" as male.

Of 69 debates, a full 29 (42%) featured all-male panels. Another 27 had only one woman on the panel. And over 91% of the debates featured panels that were either all or majority male.

By contrast, only four panels had equal numbers of male and female debaters, and a paltry two debates featured more female than male panelists. Not a single panel featured all women. Notably, one of the two debates with more women than men centered around a gendered question: "It's Wrong to Pay for Sex." And because the host and moderator is a man, listeners to shows with an evenly split panel would still hear a discussion dominated were dominated by male voices.

The show's website features a stirring tribute to the power of debate, "the cornerstone of American progress." Debates, the show proclaims,

embody our democratic ideas as a society, proving both sides of an argument offer intellectually respectable points of view. Too often we are isolated in “echo chambers,” funnels through which our opinions are reinforced by biased media outlets, personalized technology and like-minded associations. Debate challenges our own lack of objectivity, where our minds have been contaminated by conviction.

It's a worthy goal. But instead of offering robust, diverse perspectives on the most pressing questions of our time, Intelligence Squared has created its own "echo chamber," this one reverberating with the voices of men.

What's going on here? How is it that the show's producers haven't found it uncomfortable, if not embarrassing, to feature so many all-male discussions? This is a particularly puzzling question given that the production is almost entirely female, including executive producer S. Dana Wolfe.

I called up Intelligence Squared's PR contact to see if I could get some answers. Although they would not comment on the record to a freelance writer, the person I spoke with said that the extreme gender imbalance of the show's panelists is "something that has been brought to their attention."

It's reassuring that all-female production staff is aware that it's a problem for a show priding itself on "intelligent discussion" to marginalize female voices. But that awareness doesn't appear to be changing anything: Of the four upcoming debates listed on the website, two feature all male panels, one has only one woman, and the fourth has only two confirmed guests--both of whom are men.

Hey Sully! MSNBC and Fox News Are Not Equal

Andrew Sullivan loves to equate MSNBC and Fox News. They’re both “propaganda channels” that “poison our discourse,” according to Sullivan. This is, well, silly. But I would hope that, at the very least, this week's revelation of the Obama Administration’s justification for assassinating Americans abroad starts to change his view. Put simply, if MNSBC is the propaganda wing of the Obama Administration, he needs to hire himself some new mouthpieces.

First, it must be noted that it was NBC News’ Michael Isikoff who broke the story late Monday night. Within hours of posting the story, he appeared on MSNBC’s “Rachel Maddow Show” to discuss the white paper; Maddow introduced the segment by explaining the lengths news organizations and the ACLU have been going to in an effort to access to the legal memo authorizing these drone strikes. Referring to the Obama Administration’s insistence that the program is legal, she said, “We know you think it’s legal. Why do you think it’s legal?”

The discussion continued on MSNBC throughout Tuesday. On the midday show “The Cycle,” the panelists erupted in a fierce debate over the wisdom and legality of Obama’s drone program. “The point here is that there’s this sort of shadow government, almost,” host Steve Kornacki warned. “It’s taking place behind the scenes, and that’s where the Obama Administration has wanted it to be.”

And then to Sully's favorite, Ed Schultz (whom he has intimated is a propagandist unworthy of comparison to even Pat Buchanan). As such, he must have been pounding the table in defense of Obama’s authority, and decrying critics as right-wing Nazi-loving fascists, right?

SCHUTLZ: I have to say, as an American citizen, we are all entitled to due process under the law. And this document gives the president the ability to act as judge, jury and executioner. I’m troubled by it. It doesn`t meet the moral or the Constitutional standard that we expect of any administration.

And I have to say that liberals have come certainly a long way to crying about the FISA court and the Patriot Act and listening in on conversations to literally taking out innocent people around the world. We’re losing the moral high ground by doing this.

And even more troubling is that there are people in Washington who are ominously silent and not questioning this process and willing to stand behind the legal opinion of the Justice Department. This is President Obama’s legacy right now. It is dangerous.

[…]

There is no due process here whatsoever.

[…]

Well, I think Democratic senators need to step out and answer if this was the Bush administration, would they be so silent.

In short, MSNBC is pretty damn outraged about the Obama Administration’s insistence that it can kill any American, anywhere, whom it deems (through a secretive process) to be a threat. Now let’s compare that to Fox News’ reaction to the biggest terrorism-related scandals of the Bush Administration, shall we?

Here are just a few examples of Fox defending Bush’s wiretapping program immediately after the New York Times revealed it (transcripts via Lexis):

HANNITY: You know, Victoria, it seems to me that the left wants it both ways. They want to be able to blame Bush any time anything happens but, on the other hand, they're not allowing him to take what seem to be clearly, obvious, commonsensical-type steps to ensure that we monitor these people that we know are out there because we already know what their intentions are.  […] There's no evidence that any law was violated in any kind. It seems like, once again, the anti-Bush "New York Times" wants to create a conspiracy where there is none. [12/16/05]

FRED BARNES: Now, I think this was an easy call for Bush. He had to choose between protecting America's national security and worrying about the privacy of somebody linked to al Qaeda, who's on the phone to some al Qaeda official overseas. I mean, that's an easy call, I think, and the president made the right one. And, and, and the civil libertarians may not, but then they've forgotten about 9/11, and (INAUDIBLE) and the fact that we are at war, or they don't care about it. [12/17/05]

KRAUTHAMMER: [Bush] wins on this. And he waived the legalities when he painted it as us and them, who do you care about? He is weak on the legalities, but I think you could make a plausible argument that you might accept it on the basis of authorization of use of force on the war against al Qaeda. It's not that strong an argument, but politically, it wins hands down. [12/19/05]

On torture, Fox hosts were big fans. Hannity repeatedly defended Bush’s torture program. Bill O’Reilly could hardly have been more enthusiastic. And Fox hosts didn’t see why Abu Ghraib was such a big deal either.

So when the Obama Administration declares power to assassinate American citizens whenever an unspecified member of the Administration declares, on some unknown piece of evidence, that the person is a threat, MSNBC hosts immediately and harshly criticize both the policy and the secrecy behind it. When the Bush Administration is revealed to have illegally spied on U.S. citizens and tortured detainees, Fox hosts insist the programs are legal and that the whole thing is a left-wing plot.

But yeah, they’re totally the same.