by Matt Barr

I can't believe she said that!

There's a piece on Ms. Justice O'Connor by Dalia Lithwick I missed till the increasingly miss-more-than-hit Cathy Young read it and wrote, well, I never!

Young's complaint is that Lithwick's assessment of O'Connor's career is too shallow and "gender-centric."

A graduate of Stanford Law School, O'Connor's own alma mater, Lithwick finds O'Connor downright baffling because—well, she's just not woman enough. She recalls an O'Connor speech at Stanford in which, horror of horrors, the justice was "curt and unsentimental" and spoke rather coldly of death penalty cases. "I left the hall furious, wondering how a woman could be so heartless," writes Lithwick.

Lithwick is also aghast that O'Connor failed to find within herself the "feminine compassion" to decide the 2000 election in favor of Al Gore. (This is not a joke.) And she can't understand how someone who was a trailblazer for women could "show so little empathy to female victims of violence" when, also in 2000, she voted in United States v. Morrison to strike down a portion of the Violence Against Women Act allowing victims of "gender-motivated" crimes such as rape to sue their attackers in federal court.

Apparently, female jurists are not supposed to be concerned with things like law or facts (Lithwick derides O'Connor's jurisprudence as "narrow and fact-centered") but with "empathy," at least toward women and Democrats. The Victorians' ideal woman was "the angel of the house"; Lithwick's ideal woman is the angel of the court.

How droll! The point of Lithwick's column escapes Young entirely. To wit:

The first woman on the United States Supreme Court, Justice O'Connor broke through glass ceilings the way women of my generation broke nails. She, more than any other woman in the legal profession, proved that we could be whatever we wanted.

Which is why her speech was so stunning: it was curt and unsentimental and - if recollection serves - it concluded with a lament about how annoying it is to receive late-night telephone calls from death row petitioners with only moments left before their executions. I left the hall furious, wondering how a woman could be so heartless.

She shocked me again in the fall of 2000, when I was covering oral arguments at the Supreme Court in Bush v. Gore. Justice O'Connor, 70 years old at the time, was listening to an argument about how to count the notorious "butterfly ballots" that had confused Florida voters, especially the elderly. Her characteristically tart reaction to the voters' difficulties -- "For goodness' sakes, I mean it couldn't be easier" - crushed any liberal dreams that some heightened feminine compassion would decide this case for Al Gore.

Suffice it to say, Justice O'Connor is a huge mystery to most women of my generation. How could someone who blew open doors for generations of women after her show so little empathy to female victims of violence in the 2000 case of United States v. Morrison, for instance, where she joined with the court's conservatives to invalidate the Violence Against Women Act, or to teenagers facing the death penalty in Roper v. Simmons last fall? How could someone who so embodies minority advancement not use her new power to pull everyone else up with her?

If you're reasonably sharp, and especially if you're familiar with Lithwick's Court coverage, you suspect she's making a point about how different from expectations this First Woman To Be Something acted. I'm not sure whether it's a failure of Lithwick's column or Young's intellect that Young genuinely thinks Lithwick is saying feminine compassion should have made O'Connor vote to continue the recount.

Lithwick drives the point home later in the piece:

But her position as one of the last real open-minded moderates -- the tiebreaker in a generally polarized court -- reveals how powerfully those skills in diplomacy, compromise and pragmatism that she developed as an early feminist can bear fruit.

Ultimately, the women I know have come to love Justice O'Connor not just for what she is, but also, perhaps grudgingly, for what she has done as well. She has showed us that she could be more than just another justice on the court. She modeled fearlessness for those of us who still feel law is a man's game. And she showed us that greatness can be achieved by rolling up the sleeves of your black robe, and doing justice, one small case at a time.

Get it? Even though she hasn't thrown like a girl for the last 24 years, she has carved out an entirely admirable place in history, and the respect of "a woman and a lawyer," maybe grudging respect, since she does things like vote with the majority on the Violence Against Women Act. O'Connor wasn't a Female Justice, she was a Justice, "one of the last real open-minded moderates ... reveal[ing] ... skills in diplomacy, compromise and pragmatism that she developed as an early feminist."

I'm sure you do get it, but you're not a Reason contributing editor.

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