Motherhood and Justice

Ann Gerhart argues that The Supreme Court needs more mothers:

But in selecting Kagan, Obama ensured that one key demographic would actually lose representation on the court, compared with its membership just a few years ago: mothers, a category in which 80 percent of American women eventually land.

It’s not like we’ve never had moms in black robes. The flinty rancher and the feminist firebrand who blazed the trail for female justices both are mothers, with five children between them. Sandra Day O’Connor and Ruth Bader Ginsburg, who joined the bench in 1981 and 1993, respectively, benefited from high-achieving husbands who held the Bible for them as they were sworn in, supported their aspirations and sacrificed for their careers. …

The women of a younger generation who stand on their shoulders, Sonia Sotomayor and, if confirmed, Kagan, are single and have no children. That’s not a judgment, just a fact, a line or two not found on their extraordinary bios. If Ginsburg is the next justice to step down, the court could be transformed into a body with no mothers — otherwise known as people who know what it’s like to come home from work and spend a night picking lice out of a kid’s hair.

For women and their climb toward social and economic parity, is this a sign of progress or a setback? And for the country and its Constitution, would more mothers on the bench change the way the laws of the land are interpreted? …

I, for one, am grateful that no one has turned up any record of a Supreme Court nominee saying, “I would hope that a wise working mother of three, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” The howls would be deafening.

Women in general are more “socially compassionate” than men, says Northwestern University social psychology professor Alice Eagly, citing her analysis of decades of research on gender difference in decision-making. As legislators, lawyers and judges, women are somewhat more likely than men to favor what we call, irritatingly, “women’s issues,” generally child care, reproductive rights, sex discrimination in the workplace, education and health care.

But differences between mothers and non-mothers? “Interesting question,” Eagly said in an e-mail. “I don’t know of any studies on this question of motherhood and decision-making.”

It seems sensible to imagine that a woman who has juggled it all — the full-time job, the kids, the housework, the aging parents — has a deeper and more instinctual grasp of the challenges facing similar women. Michelle Obama, a Princeton and Harvard Law grad like Kagan, now living in the White House with a guy who watches “SportsCenter” to chill, frequently tells her audiences of women various versions of “Look, I get it,” to loud cheers. …

To tease out any gender differences, researchers conducted a review of about 7,000 federal appeals court decisions between 1976 and 2002 and found no statistical difference in the way women and men ruled in a variety of types of cases, except one: sex discrimination.

In those cases, female judges were about 10 percent more likely to find for the plaintiff than their male counterparts, said Christina Boyd, a political scientist at SUNY-Albany and a co-author of the study. And on three-judge panels where at least one member was a woman, the men were 15 percent more likely to find for the plaintiff than on panels with only male judges.

So women do affect the law — something Ginsburg learned through experience. “Yes, women bring a different life experience to the table,” she told Emily Bazelon in an interview for the New York Times Magazine shortly before Sotomayor’s hearings. “All of our differences make the conference better. That I’m a woman, that’s part of it, that I’m Jewish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.”

In saying he wants justices who have “heart” and “empathy,” and who understand “how our laws affect the daily realities of people’s lives,” Obama has invited us to ask who has a life outside work and who doesn’t. That’s hard to determine in a confirmation process that will require Kagan, like Sotomayor before her, to crimp her personality and bite her tongue.

Motherhood offers a one-word verifier. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and intimacy, all outside the workplace. Much of the time, it’s the opposite of being strategic and assiduously prepared.

It’s a story we understand without needing all the details.

Neera Tanden finds these arguments “ridiculous”:

The policy initiative I worked on most with Elena at the White House was President Clinton’s child care initiative, a then-historic $20 billion investment in child care, after school, Head Start, and early learning. That’s why I find arguments by some that have criticized the president for not selecting a mother to the Supreme Court so ridiculous. There seems to be a notion that a single woman can’t represent the interests of mothers. Frankly, there were plenty of Republican members of Congress who happened to be mothers, who didn’t lift a finger to help mothers balance work and family. Now that I’m a mom, I know Elena got it because what mattered to her was drafting policies that made a concrete difference in the lives of children and helped working parents with their most important obligation.

Bella DePaulo (author of Singled Out: How Singles are Stereotyped, Stigmatized, and Ignored, and Still Live Happily Ever After and the Living Single blog) is also unhappy with Gerhart’s piece, and see also this essay of hers (h/t: Nicky Grist [bio]).

Hazal actually do maintain that fatherhood is (generally) an essential qualification for membership our Supreme Court, the Sanhedrin, and not just fatherhood, but recent fatherhood:

[תניא] אין מושיבין בסנהדרין זקן וסריס ומי שאין לו בנים ר’ יהודה מוסיף אף אכזרי וחילופיהן במסית דרחמנא אמר לא תחמול ולא תכסה עליו:1

Rashi explains that the senior has “forgotten the pain of child-rearing, and is not compassionate”:

זקן. ששכח כבר צער גדול בנים ואינו רחמני וכן סריס:

The remarkable implication is that judges, at least on the Sanhedrin, are not supposed to be mere soulless automations, rigidly applying the Law untainted by the milk of human kindness. Our previous discussions of this general topic:

And my lecture The Legitimacy of Compassion as an Influence on Judicial Decisions, which comprises much of the above material, does indeed utilize this Gemara as its starting point.

Returning to Gerhart’s thesis, Rav Ben-Zion Meir Hai Uziel actually takes precisely the opposite view; he concludes a lengthy analysis of the Halachic legitimacy of female judges (listen to my lecture on the topic) by declaring that although the institution of a policy allowing such appointments can be technically justified, it is nevertheless inappropriate:

אלא שלדעתנו מפני חשיבות של ענין דין בישראל לא נכון לעשות תקנה כזאת [לקבל נשים], שהיא פוגעת בהנהלת משק הבית הישראלי וחנוך הבנים וטפולם התמידי שאינו יכול להעשות אלא על ידי אם רחמניה שהיא צופיה הליכות ביתה, ושאין הדין יכול להיות אמת מסבות פסיכולוגיות של רגשי רחמים מרובים, שהאשה חוננה בהם, וגם מסיבת עדינות רגשותיה שהונאתה מרובה ודמעתה מצויה, אין ממנים אותה לדון דאחד מתנאי הדיין הוא: אנשי חיל, גדולים בחכמה ואמיצים ברוחם, שמקימים לא תגורו מפני איש כי המשפט לאלקים הוא.

Rav Uziel argues, in diametric opposition to Gerhart, that motherhood is actually a hindrance to proper justice (in addition to the deleterious effect that jurisprudence will have on her domestic character): “the Law [produced by a female judge] cannot be true due to psychological causes of feelings of great compassion, with which Woman is graced, and also due to the cause of the delicacy of her feelings, for her emotional hurt [heb. הונאתה] is great and her tears come easily, we do not appoint her to judge, for one of the qualifications of the judge is: men of valor, great in wisdom and brave [Heb. אמיצים] of spirit, who fulfill [the charge of the verse] “ye shall not be afraid of the face of man; for the judgment is God’s:”

We close with this fascinating exchange, from the pages of Binah magazine, about the personal and professional life of the most famous female judge in Jewish history:

Devorah Haneviah was a leader of Klal Yisrael, but the passuk says, “ad shekamti Devorah, shekamti eim beYisrael.” Devorah’s primary role and her greatest pride was not her prophecy or prominent position, but rather her motherhood.2

The author explains the passuk “ad shakamti Devorah, shakamti eim b’Yisrael – until I, Devorah, arose; I arose as a mother in Yisrael” (Shoftim 5:7) as referring to, and attributing the highest significance to, Devorah’s status as a biological mother and her career as mother to her own children. Is there a source for this explanation?

The classic meforshim who explain this passuk – Ralbag, Metzudas Dovid, and Malbim – explain eim, “mother”, as referring to various aspects of Devorah’s leadership of Klal Yisrael: as a maternal leader, a “parent” who rebukes Klal Yisrael, as well as a metaphorical biological mother of Yisrael, due to her saving them from Sisrah. Targum Yonasan goes so far as to translate the phrase as “until I was sent to prophesy for Yisrael,”, with no mention of a maternal connotation. Indeed, it would be difficult to understand why the passuk would be praising Devorah as a “private” mother in the context of her shirah on the salvation of Klal Yisrael.

I would be interested to know if there is an authoritative source that explains this passuk as referring to Devora as a “real” mother, as the author states, rather than as a leader. Otherwise, it would seem that the explanation in the article was an extension of the author’s personal views on the subject, rather than an accurate interpretation of the passuk and the portrayal of Devorah HaNeviah in Tanach.3

I heard the pshat on Shiras Devorah from Mrs. Devorah Leah Silberberg, Rav Gedalia Schorr’s daughter, who is a well-known mechaneches is Eretz Yisrael. After receiving your letter, I presented it to Rav Yisroel Dovid Schlesinger from Monsey, N.Y. who verified its veracity for me.4

I think it is clear who has the better of this interchange.

  1. סנהדרין לו: – קשר []
  2. Liba Cohen, Up Against the Tide, in Binah Vol. 4 No. 181 (19 Iyar 5770 / May 3, 2010) p. 53. []
  3. Letter to the editor from R. Reich, ibid. Vol. 4 No. 185 (18 Sivan 5770 / May 31, 2010) p. 14. []
  4. Liba Cohen, ibid. p. 15. []
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2 Responses to Motherhood and Justice

  1. DF says:

    The comments of Gerhardt and the other lady are an indictment of the entire way some people (letists)view appointments to judgeship. A sense of compassion is certainly necessary, but only for sentencing issues, which rarealy if ever come before appellate judges. The question is simply of how to interpret the law, not compassion. In any case of law in which two sides are adverse to another, “compassion” for the one litigant is tantamount to “cruelty” to the other.

    This was different in the times of the Sanhedrin, as they were not called upon to interpret statutory law. [They may at times have sat to interpret the Torah, but to delve into that would take us into the discussion of the development of the oral law.] There was no legislative body save for the Sanhedrin, and so the Sanhedrin were the legislators. Since I do most certainly think being a father (or mother) is very helpful to be a legislator, it follows that it was held necessary for the Sanhedrin too.

    However, legislators do have to represent the population at large, and there are more singles today than there were in ancient times. Hence, I would not mandate it necessary to be a parent, because a childless person can serve as a representative for singles. Still, it must be said that parenting gives one a life experience that gives one a better understanding of human nature. Indeed, others have remarked that certain well known rabbinic figures lead iconoclastic lives only because they did not have children. Had they actually had children, they would have been more normal. [There is no question that parenting makes one more compassionate. Example – When I was single it was tough to abide screaming children on airplanes. As a parent who understands and sympathizes with the plight of the parents trying to deal with it, I can handle it a lot better.] [Still not easy though!]

  2. Yitzhak says:

    I) I have discussed the question of whether there’s a legitimate place for compassion in the interpretation of the law in my earlier posts that I link to above.

    I’m certainly sympathetic to your view that compassion is irrelevant to the judge’s job, which must only be the impartial application of the law, as per the great, albeit apocryphal, Justice Holmes-Judge Learned Hand anecdote that I discuss in my “Big Guys, Little Guys” post, but the matter is hardly that simple – (re)read the letter from Rav Kook that I cite there, and the citation from Rav Zevin in my “Two Chief Rabbis” post.

    II) You seem to be suggesting that the compassion required by the Gemara for members of the Sanhedrin is merely for their legislative function; I think that this is untenable based upon the Gemara’s contrast to מסית. The clear implication is that compassion is desirable in non-מסית jurisprudence, and not merely for legislation.

    III) I’m no expert on the development of the Oral Law, but I cannot accept your sweeping declaration that the members of the Sanhedrin “were not called upon to interpret statutory law”. Orthodox Jews certainly believe that some body of legal tradition already existed, so why should it not have been the job of the Sanhedrin to interpret that law?

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