THE IMPORTANCE OF DESCRIPTIVE REPRESENTATION

The Supreme Court nomination process is a political fight that requires convincing the American public to support the president's choice. Maltese (Reference Maltese1995) found that fighting against the nomination of a justice has become a symbolic test of an administration's strength (143). Individual judges interpret the constitution in different ways, which leads to varying outcomes as they can have honest disagreements about how laws should be interpreted (2, 5). Given that the president's pick to fill a vacancy on the Court can influence policy outcomes for years to come, it is a highly politicized process (10). In the modern appointment process of justices, nominees typically fail to gain confirmation when the president and the Senate are controlled by opposite parties (142). However, even if a nominee is confirmed, the nomination process can still inflict damage on their credibility as a jurist. Airing the proceedings on television allows politicians to draw attention to the identity of nominees. This permits exploitation given the suspicion of a nominee perpetuated by external cues in the media prior to the actual hearing. This results in senators invoking issues of identity without having to articulate them explicitly.

Senators have an interest in drawing public attention to the nominating process. Comiskey (Reference Comiskey2004) argues that this is due to a legislator's desire to influence public opinion and secure reelection (49–53). But this increased media attention leads him to level several criticisms against the media's coverage of the process. Reporters dig up dirt on nominees, broadcast of hearings on television can distort the behavior of participants, and these two things then influence the behavior of the Senate (63, 71–74). Comiskey believes that the process is not overpoliticized; rather the media's impact is overstated (83–84). This is not entirely accurate given how the media works in tandem with senators to boost opposition to a nominee by using internal cues to amplify the suspicions raised in journalistic accounts. This was true for the nominations during the 109th and 111th Congresses, where the media facilitated the legislators’ goals by cuing people into the potential political “dirt” it had dug up on the nominees.

Research into hegemonic masculinity helps us understand how Supreme Court nominations, especially of women, are contested affairs that challenge the patriarchal status quo. While both “hegemony” and “masculinity” can appear vague with varying definitions, this body of research asks for a reconsideration of masculinity in society and how its dominant position is assumed as natural and normal. In turn, the media helps purvey these views in order to keep elites in their superior position atop a hierarchy (Donaldson Reference Donaldson1993, 645).

Because multiple masculinities exist, understanding the delineation between heterosexual and homosexual behaviors becomes crucial. Men have a dominant role in society in relation to women, who are seen as sexual objects, but homosexual men are also subordinate to heterosexual men in this patriarchal system (Donaldson Reference Donaldson1993, 645). Homosexuality offers a challenge to heterosexuality and the dominant place of the heterosexual man in society. Homosexual acts and effeminacy are subversive to the established “gold standard” masculinity (Donaldson Reference Donaldson1993, 648; Connell and Messerschmidt Reference Connell and Messerschmidt2005, 846).

To understand what the hegemony of men entails, Hearn (Reference Hearn2004) sees it as a broad social category as well as dominating the social practices of individuals and groups. We should see men as socially constructed and gendered, not assumed dominant and naturally in that position (51). These practices change over time and, as we shall see, the opening of the profession of the law to women—including judging—has precipitated change (59–60). The Court within the American system is one such place where men's power is preserved. Guided by the principle of stare decisis, justices are appointed and expected to behave in certain ways that give deference to the past—a past that was constructed and controlled by men that preserves their interests. As women are appointed to the Supreme Court, their behaviors are being anticipated and contested by another male-dominated body, the United States Senate.

When scholars first began discussing the idea of a hegemonic masculinity in the 1980s and 1990s, continued shifts in the perception of the traditional roles of men and women were occurring, as more women entered the workforce and it became normal for men to stay at home. According to Donaldson (Reference Donaldson1993), associated with this shift is the perception that men who do stay at home will become whole, whereas women who forego traditional gender roles and become career professionals are giving something up. As evidence, he cited the change in advertising, where magazines start to reflect this shift by offering products that appeal to the busy stay-at-home dad and the on-the-go working mom. The media follows the shift but also reinforces the stereotypical negative connotations associated with changing gender norms (652). We see these gendered perceptions replicated in Supreme Court nomination hearings, as the third and fourth women appointed to the bench are viewed with suspicion. Sotomayor and Kagan are nontraditional women who pursued legal careers. Being unmarried at middle age also reinforces the idea that they gave something up to succeed in what has been a traditionally male-dominated profession.

Associating masculinity with reason and femininity with emotion and bringing it into the courtroom can be traced back to at least the 19th century. In reviewing the practice of law in antebellum America, Grossberg (Reference Grossberg, Carnes and Griffen1990) noted that everyone who entered a courtroom, men and women, were subordinate to the men who were judges on the bench. These men were held up as paragons, representing all the valorized characteristics of a particular type of masculinity: wisdom, virtue, reason, wit, and detachment from emotion that allowed them to bring impartial judgment on people as groups rather than their feelings on them as individuals (140–50).

Grossberg (Reference Grossberg, Carnes and Griffen1990) suggests we might think of men that become judges as akin to priests if the law were a civic religion, being wed to it they are the embodiment of reason. The public is silenced and in awe before them when they enter the courtroom (140–41). The advent of women entering the legal profession, instead of revolutionizing the practice of law, created a new segregated segment within it, with women forming their own associations and tending to specific types of legal duties. This included refraining from the practice of law once they graduated law school, becoming secretaries, or being relegated to particular types of practice, such as public defenders (145–49). These practices continue to the present.

The number of women who have served on the nation's highest court has been slim (only 4 of 113 justices ever appointed, of which 3 are currently seated). In 1981, the first woman justice, Sandra Day O'Connor, was nominated to the Supreme Court by President Ronald Reagan. Before this hurdle could be overcome, women first had to break the barrier of being accepted into and completing law school, and at one point within living memory this male-dominated profession was unavailable to women. As only the second woman to serve on the Court, Justice Ginsburg, commented that going to law school in the 1950s felt like, “every time you went to answer a question, you were answering for your entire sex.”Footnote ¹ Ginsburg would later be joined by the third and fourth nominees, Sonia Sotomayor in 2009 and Elena Kagan in 2010.

The advent of women being appointed to the Supreme Court creates unique problems. While it is unclear what impact having more women on the Supreme Court will have substantively, senators are given to merely acknowledging the symbolic importance of their appointments. It may be that if more women serve as judges they may feel less of a need to express a “women's perspective” (Kenney Reference Kenney2013, 41–42). The presence on women on courts has also been construed almost as a novelty in media coverage (Escobar-Lemmon et al. Reference Escobar-Lemmon, Hoekstra, Kang and Kittilson2016). In a profession dominated by men, the appearance of women there challenges society to confront gender stereotypes (257). However, by framing these nominations in a particular way, the media allow gender to become the focus, and opponents are enabled to draw suspicion on their candidacy based on identity.

There is some evidence that the American public is already primed to view potential nominees with suspicion. Farganis and Wedeking (Reference Farganis and Wedeking2011) believe that this is in part due to perceptions of evasiveness that have their root in the failed nomination of Judge Robert Bork in 1987. Bork gave detailed answers to questions during his nomination hearing and was rejected by the Senate. This gave way to subsequent employment of the “Ginsburg precedent,” named after future nominee Ruth Bader Ginsburg who avoided detailed responses to questions involving cases likely to come before the Court in the future. By coding exchanges (the question asked by a senator followed by a nominee's response) the authors demonstrated that justices are not more evasive, but that past nominations helped contribute to that perception amid a changing nomination hearing process where senators use their time on camera to ask more detailed questions (525–27).

Given the highly visible political debate surrounding Supreme Court nominations, senators use existing beliefs held by the public to cue viewers regarding women nominees. This includes relying on values associated with judicial restraint that pair well with traditional Judeo-Christian norms prevalent throughout the United States to create a caricature of the nominee. In the past, medieval Christians were convinced that a battle existed between God and the devil over the eternal souls of individuals. This included the fear of real succubi, or demons taking the form of women that would tempt men and devour them (Mott Reference Mott1998). Belief in the existence of supernatural beings such as demons was tied to fears about sex, masculinity, and sexuality (to name but a few). Crawford (Reference Crawford2006) has explained the function of succubi in the psyche of many Christians living under the medieval church. While these creatures were historically portrayed as powerful devils with horns or witches with grotesque skin and magical powers, senators today can suggest that the public pay attention to the nomination proceedings in order to cue the same persistent fears. By using internal cues, legislators need not explicitly cite religious views about the perceived threat of witchcraft to stoke anxieties towards marriage. Like witches that were agents of the devil and threatened to steal men's penises, thereby threatening the sanctity of marriages and rendering men useless, women on the Supreme Court challenge the established position of men in American government.

Of course, women on the Supreme Court are not witches. But the perpetuation of these dichotomous categories places women in a suspect group and precludes the possibility of discussing constitutional conceptions beyond the restraint versus activist divide. Burgess (Reference Burgess, Gillman and Clayton1999) contends that this is the central problem of American constitutional theory and prevents discussion of competing explanations—critical legal studies as well as critical race and feminist legal theories are cited as other possibilities—and it becomes impossible to reconcile these interpretations of the constitution by unelected judges with liberal democratic values (204–205). This is important because we do not yet know how identity politics will play out in the political sphere amid demographic shifts in the United States, especially in the context of Supreme Court nomination hearings.

In exploring the meaning of the term “judicial activism” Green (Reference Green2009) suggests that a “smorgasbord interpretation” is applied today where, given the ill-defined label, it includes multiple definitions: decisions by judges that are erroneous (the infamous Dred Scott case being the most obvious example), decisions that have bad results, invalidate statutes, or a combination of all of them. The reductive “all the above” definition of judicial activism relegates the phrase to what Green calls a “Frankenstein” to serve as a “mask for ulterior motives.” It becomes a catchall for any decision one does not like (1217–20).

However, labeling between judicial restraint and activism is one of the main ways the public evaluates judicial nominees, so despite the vagueness of the terms, it has remained a part of the dialogue surrounding the appointment of new Supreme Court justices. How scholars talk to the public about judicial appointees depends on their ability to frame it within the existing discussion that relies on the dichotomy between activism and restraint (Green Reference Green2009, 1220–22).

It is incorrect to link the vague definition of “judicial activism” with progressive rulings from the Supreme Court (Green Reference Green2009, 1227). The tactic has become so effective that senators from both parties employ it. The phrase “judicial activist” serves as a rallying cry to unite opposition and is a persistent pejorative that follows a justice around like a dark shadow. For example, in response to Republican President Donald Trump's nomination of Judge Neil M. Gorsuch in early 2017 to replace the seat left vacant by the death of Antonin Scalia, Democratic Senate Minority Leader Chuck Schumer penned an op-ed for the New York Times warning all Americans that the judge would be another activist on the bench. The senator compared Gorsuch's failure to answer questions posed to him as similar to those asked of Chief Justice John Roberts when appointed. Citing the outcomes of the infamous Citizen United (2010) and Shelby Co. v. Holder (2013) decisions, Schumer linked Gorsuch to Roberts: both are activists who want to overturn precedent.Footnote ²

The success of women within the legal profession and the advent of televised nomination hearings operates within the restraint versus activist debate. These contentious affairs hark back to medieval witch trials in their format and, as questioning centers on the identity of nominees, the Supreme Court as an institution is placed at the center of this debate in American politics. The nominations of Roberts, Alito, Sotomayor, and Kagan convey this shift in the Supreme Court to focus on questions of identity, as each was appointed during an interregnum marked after the Bowers v. Hardwick decision (the 1986 ruling that found bans on sodomy unconstitutional) but before Obergefell v. Hodges (the 2015 ruling that found same-sex marriage constitutional in the United States). Political actors, in this case U.S. senators, saw the judiciary's continuing role in deciding questions about the rights of homosexuals and have connected it to the qualifications of justices serving on an unelected Court.

DATA AND CASES

I analyzed the nomination hearings before the Senate Judiciary Committee of the four justices nominated and appointed to the U.S. Supreme Court during the 109th and 111th Congresses. First, I reviewed video from the hearings of John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan. This allowed for the identification of certain themes and key issues that were repeatedly mentioned throughout the days-long hearings for each of the nominees. Additionally, it revealed events that visually appeared in the news and comport with a queer new institutional analysis but are not readily apparent by a reading of the text of the hearings alone.

From there, I identified the specific issues that were most salient. It is now common practice for numerous senators of the party in opposition to the White House to target specific instances in the nominee's record. By delivering pointed questions to a nominee while the cameras are focused on them, members of Congress can take positions, claim credit, and advertise their point of view for the voters back home in order to secure reelection (Mayhew Reference Mayhew2006). Even if the nominee eventually is confirmed, focusing on these issues can raise controversy, and legislators can claim that they were serving their constitutional duty by going over the nominee's record with a “fine-toothed comb,” as the following cases demonstrate clearly.

THE NOMINATION OF JOHN ROBERTS TO THE U.S. SUPREME COURT

In the first Supreme Court nomination in 11 years, Republican President George W. Bush nominated U.S. Appellate Court Judge John G. Roberts to replace retiring Justice Sandra Day O'Connor on the Supreme Court in July 2005. Incidentally, Roberts was instead quickly moved to fill the seat of William Rehnquist after the chief justice died on September 3, 2005, and was confirmed later that month as the 17th chief justice. This led to a second nomination, Judge Samuel Alito, to replace O'Connor in November 2005, with successful confirmation by the Senate in early 2006.Footnote ³

The 109th Congress included a Republican controlled Senate, and thus the Judiciary Committee as well, and the nomination hearings took place September 12th through the 15th.Footnote ⁴ A significant portion of time was spent by senators examining Judge Roberts on the bounds of what he was willing to answer in his testimony. Reference was made at several points during the proceedings to the “Ginsburg Precedent,” her view that a nominee should give “no hints, no forecasts, no previews” during the committee hearings as to how they would rule on a case before the Court.Footnote ⁵ Although Roberts followed this rule, he was chastised by senators for not being more revealing. This was especially true for Democratic Senator Schumer, who charged that Roberts would “cite it [the Ginsburg Precedent] when you don't want to answer something.”Footnote ⁶ This reveals the challenge for the committee and nominee: to use the hearings to uncover as much as possible, but not so much that the future justice has prejudged all the cases that are to come before the Court.

At the beginning of the hearings, several Republican senators made reference to the Supreme Court acting as a “super-legislature” and cited the prevalence of 5-4 decisions from the Court as evidence that the body had become politicized. Chairman Arlen Specter told the committee that appointing a new Chief Justice would provide opportunity to “rebuild the image of the Court.” This repeated use of the term “super-legislature” signified a coordinated partisan effort. Republican Senators Specter, Chuck Grassley, Sam Brownback, and John Cornyn used their opening statements to frame the debate within the confines of this established trope: judicial restraint versus activism. Their mission—by acting in concert—was to return the Court to the status of a neutral arbiter.Footnote ⁷

The media spotlight on Roberts after the president selected him led to questions regarding his sexuality. On August 21, 2005, the New York Times published an article comparing the judge's association with a incipient conservative movement at Harvard with the marginalized status of homosexuals. It ran with a photo of Roberts and two male friends posing with a pie.Footnote ⁸ Their posing in preppy clothes, combined with the fact that Roberts married and started a family at a later age, drew suspicion of the nominee. The newspaper primed readers to draw a parallel between being a marginalized conservative on a college campus and homosexual identity, which is associated with the nascent, formative years of undergraduate education. It also suggested that Roberts might have something more to hide. Despite this external cue introduced in the media, the theme did not appear to gain traction within the committee during the hearings given Roberts’ status as a conservative judge before a Republican-controlled committee that was still deeply opposed to gay rights.

Instead, Republican committee members repeatedly asserted and cited evidence that Roberts would be a justice who would adhere to the confines of judicial restraint. Specter wanted a Court of “consensus.” Grassley praised Roberts as a replacement for Rehnquist, who exercised “judicial restraint.” Senator Jon Kyl said that the Supreme Court was not a “political office,” thereby reinforcing the idea that the Supreme Court should follow neutral principles. Senator Jeff Sessions warned that activism was a judge ruling based on the desired outcome, to see policy preferences enacted. Brownback told Roberts that the Founding Fathers wrote about restraint, and used a baseball metaphor to reinforce his position: a judge is like an umpire and therefore cannot play on the field; a judge cannot rule in favor of their policy preferences because doing so would further tear the country apart. The senator even became emotional as he noted the political division that plagued American society.Footnote ⁹

Additionally, Brownback attacked the idea of “super-precedence,” or that repeated reinforcement of the holdings of a case make it irreversible, in order to pursue his goal of overturning Roe v. Wade (1973). Although its holding had been reinforced in 38 subsequent cases by the time of the nomination hearing, the senator did not think it was the correct decision. In order to give Roberts a path to help institute his own policy preference, Brownback cited the landmark Brown v. Board of Education (1954) case that overturned Plessy v. Ferguson (1896). This ruling enabled the Court to declare “separate but equal” unconstitutional by overturning the existing precedent.Footnote ¹⁰ There was precedent for overturning precedent.

Republican senators characterized Roberts as a justice who would adhere to judicial restraint and repeatedly praised him as a replacement justice that would adhere to neutral principles. While advocating for him as an objective arbiter who would exercise restraint, Brownback skirts the line of the dichotomous restraint versus activism debate. The senator “outted” himself as an activist and expressed his desire for a justice to overturn Roe v. Wade for the benefit of the country. The constraint of activism/restraint debate proved to be unworkable when applied to the practical issue of abortion. After subscribing to calls for restraint, objective application of the law, and judging based on neutral principles as his Republican peers do, the senator allowed himself to cross the line drawn between mutual and dependent asymmetrical pairings: suddenly he favors desire instead of reason, activism instead of restraint. Of course, Senator Brownback did not just suddenly change his mind; rather, the illogical incoherence of the established constitutional categorizations could not be maintained when moved from the theoretical and applied to the practical (Burgess Reference Burgess, Gillman and Clayton1999; Sedgwick Reference Sedgwick1990).

THE NOMINATION OF SAMUEL ALITO TO THE U.S. SUPREME COURT

Whereas Robert's nomination hearing intimated the presence of a debate between judicial activism and restraint, Alito's confirmation hearings all but confirmed it. Although he was generally praised for his candor in answering questions, opponents challenged him on failure to recuse himself in cases. In the past, Alito had ruled as an appellate court judge in a case that involved the company Vanguard, where he held a mutual fund, as well as Doe v. Groody (3rd Cir. 2004), where he sided in favor of police that stripped searched a ten-year-old girl after executing a warrant against a suspected drug dealer.Footnote ¹¹ These issues were used to paint Alito as a judge of questionable ethics by failing to recuse himself as well as predisposed to ruling in favor of the government.

Reinforcing the dichotomous choice between competing constitutional interpretations could not have been done more succinctly than when Republican Senator Specter used the term “flaming liberal” in contrast to an “arch-conservative” during Alito's nomination hearing. By examining the right set of cases, Specter charged that Judge Alito could be characterized as either.Footnote ¹² The description of a “flaming liberal” draws on several negative stereotypes to raise suspicion. “Flaming” is often used pejoratively to describe a gay man, typically an effete one that is unable to conceal his sexual orientation, and in this instance, it is also applied to a liberal. By pairing the two words, it denotes judicial activism as well as a rejection of reason, by characterizing someone as being unable to contain their desire for certain progressive policy outcomes.

Senator Specter was the anomalous committee member who correctly exhumed the false, tenuous, and extreme comparison of an “arch conservative” to a “flaming liberal.” In his comments during the hearing, he quickly dismantled this pairing by noting the ease of its construction. By selectively assembling cases from Alito's history as a judge, a narrative could be crafted to make either association. So while Specter appealed to stereotypical conceptions of identity in his willingness to use the terms, he also broke them apart by showing the futility in applying them to Judge Alito to create a caricature.

Judge Alito's nomination took place within a media narrative that helped frame the discussion that Senator Specter deconstructed. After the third day of the hearings, news outlets focused on Alito's wife crying during testimony. On television, Martha Ann Alito was pictured seated in the audience behind her husband as he testified. Following intense questioning of her husband, she broke into tears and excused herself from the room. This does not appear in the text of the transcript during the hearing but was clearly visible before the cameras and was used by the senators to push back against Alito's opponents who suggested he was a bigot. This allowed Alito's advocates to focus on the theme of restraint by linking the judge with reason and contrasting it with activism, desire, and the emotion displayed by his wife.Footnote ¹³ The senators themselves, angry at attempts to characterize Alito negatively, raised their voices in expressed exasperation. Meanwhile, the judge remained poised during testimony, the embodiment of rationality and reason, unburdened by the emotional outbursts of hysterical women.

Another persistent theme during Alito's nomination hearing was the claim from his opponents that he would be a consistent vote on the Court in favor of the government to the detriment of individual rights.Footnote ¹⁴ Opponents used cases like Doe v. Groody (3rd Cir. 2004) to assert that Alito continually gave undue deference to law enforcement and government authorities. Senators were concerned with this given the context of the hearings and their worry that the president was pushing to extend the limits of executive power in prosecuting the War on Terror.

Senators and witnesses before the committee alike continued to vilify Alito for threatening individual rights. One of his most ardent opponents, New York Democratic Senator Schumer, stated that Alito's “deferential and absolutist” view of the separation of powers between the three branches of government were concerning. Schumer cited Alito's willingness to allow the president to execute warrantless wiretaps and expand his authority under inherent powers of the constitution.Footnote ¹⁵ Berkeley law professor Goodwin Liu testified that, although he did not consider Alito an ideologue, his opinions consistently favored the government and impinged on individual liberties.Footnote ¹⁶ Instead of residing within the confines of restraint versus activism, Yale law professor Ronald Sullivan argued that Alito was not a strict constructionist but “shifts his interpretive style when necessary to rule in accord with the government's interests.”Footnote ¹⁷

The nomination hearings of these two, straight white conservative justices was framed dichotomously by many to reinforce existing power structures, where the identities of the nominees were assumed to be the default and did not require comment. Roberts and his supporters cast him as adhering to judicial restraint by using “neutral principles” and being a “neutral arbiter” of the law.Footnote ¹⁸ Despite a brief attempt by the media to incite suspicion that Judge Roberts might be a homosexual, he was easily confirmed to the Court. Alito's opponents suggested he intended to rule in favor of the government to the detriment of individual liberties. This discussion occurred on a stage where emotional outpourings by senators and his wife during testimony reinforced the image of Alito as remaining stoic before the committee. There was no reason to fear these two men on the Court, as virtuous and reasoning like civic priests, they were worthy of the robes bestowed upon judges. Not everyone adhered to this reductive conversation, as opponents tried to paint Alito as someone willing to abandon his adherence to precedent to seek his policy preferences in deciding cases. This is in contrast to the subsequent nomination hearings of two women, where their “other”-ness was continually used against them to raise questions about their qualifications and damage their reputations, tempting and threatening the superior position of the men on the Court with their emotions and desire.

THE NOMINATION OF SONIA SOTOMAYOR TO THE U.S. SUPREME COURT

In order to understand the increased rhetoric during Sonia Sotomayor's nomination hearing, it is important to consider the changing dynamics within the Judiciary Committee. During the 111th Congress, President Obama was able to refer two Supreme Court nominees to the committee, Judge Sonia Sotomayor to replace retiring Justice David Souter, and Solicitor General Elena Kagan to fill retiring Justice John Paul Steven's seat.Footnote ¹⁹ Democrats gained control of both chambers of Congress in January 2007. With the switch in party control, the chair of the Judiciary Committee moved to Democratic Senator Patrick Leahy. During the 109th Congress, there were 10 Republicans and 8 Democrats; in contrast, the 111th Congress's Judiciary Committee was comprised of 12 Democrats and 7 Republicans.Footnote ²⁰

Sotomayor came before the Judiciary Committee with 17 years of prior judicial experience and was also the first Hispanic to be nominated. This immediately placed her in more than one outgroup, as a woman and an ethnic minority. Her confirmation hearing dealt with political issues such as the Second Amendment and abortion. Additional focus was placed on the case of Ricci v. DeStefano (2008), when she ruled as a federal judge on the U.S. Court of Appeals for the Second Circuit. The dispute was between firefighters in New Haven, Connecticut, and a test used for determining promotions and consideration of race. As argued by Chairman Leahy, Sotomayor followed precedent and ruled unanimously as part of a three-judge panel to defer to the lower District Court's decision. In doing so, critics charged Sotomayor was an “activist,” “racist,” and “biased.” Leahy used his time during the hearing to argue the contrary: that she was following established precedent even though the Supreme Court ultimately overturned the decision.Footnote ²¹

While there was posturing from Republican senators about the historic nature of the first Hispanic woman nominated, they also refuted the substantive importance of identity used to inform the justice's approach to the law. This happened through repeated reference to the now infamous “Wise Latina” speech Sotomayor had made in 2001 at the University of California, Berkeley School of Law. It was there that she shared her hope that “a wise Latina woman 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” (Sotomayor Reference Sotomayor2002). Republican senators pounced on these comments, which were also widely reported in major U.S. newspapers, such as the New York Times and Washington Post, to further charges that Sotomayor would use gender or ethnicity to bias her future judicial decisions.Footnote ²² However, Sotomayor's sensitivity to the influence of background on individuals was not a declaration of bias. Instead of acknowledging how each individual is shaped by their own experience, her opponents relied on a shallow reading of the impact and the substantive importance demographics play in the lives of Americans to spin their own political narrative.

Justice Sotomayor's identification with two outgroups—women and Hispanics—could allow her a perspective critical of the prevailing heterosexist conceptions of society where a “neutral” position is synonymous with the default white, straight male perspective.Footnote ²³ In discussing these Wise Latina remarks, Republican Senator Lindsey Graham proclaimed, “If I had said anything remotely like that, my career would have been over.”Footnote ²⁴ This is an appeal to the heteronormative standard of ignoring race, gender, and the traditional and persistently dominant role white men have played in the construction and maintenance of our social and political institutions. For a white male to ask an individual who is of multiple outgroups to be blind to identity is to accept de facto legitimacy of the prevailing view maintained by the dominant in-group—white men (Burgess Reference Burgess, Gillman and Clayton1999).

Graham's approach effectively reduced the debate over Sotomayor's confirmation as a choice between reason and desire. He proceeded to muse aloud about his responsibility as a member of the committee: “If I give you this robe to put you on the Supreme Court …” In speaking in terms of clothed/unclothed, he coupled restraint with reason, and being unclothed/naked with activism and desire (Burgess Reference Burgess, Gillman and Clayton1999). Sotomayor's comments, including the Wise Latina speech, allow him a view of how she behaves “outside the courtroom without the robe.”Footnote ²⁵ According to this dualistic thinking, a Supreme Court that is clothed in neutrality is seen as legitimate by making use of logic and restraint, as opposed to the perverse nature of an unchained and impassioned judiciary, one characterized by naked activists and driven by desire to decide cases and threaten the positions of men (Burgess Reference Burgess, Gillman and Clayton1999, 208).

Following Graham's imagery, Sotomayor without the restraint of her “robe” is free to reveal her true self when she makes appearances in public. The male senators should fear what lies hidden underneath. With her Wise Latina speech, she effectively “takes the robe off and says that their experience makes them better than someone else,” according to Graham.Footnote ²⁶ Instead of portraying her as a qualified jurist in line with the other nominees appointed to the Court, Graham construed it as his decision whether or not to allow her access to the robe of a Supreme Court justice. It is up to the senator to decide to “clothe” her perceived judicial activism. Paradoxically, in order for Graham's construction to work, he simultaneously had to eschew Sotomayor's legal record in order to express his desire that she conform to his preferences and not act on hers.

Focus on Sotomayor's Wise Latina speech effectively draws upon common stereotypes applied to Hispanic women (for example, being emotional and tough) and permeated into the hearings themselves (Escobar-Lemmon et al. Reference Escobar-Lemmon, Hoekstra, Kang and Kittilson2016, 265). This was evident when Democratic Senator Amy Klobuchar relayed a story during the hearings where a constituent who worked in an airport in her home state asked, “Are you going to vote for that woman?” The worker explained to the senator his concern that Sotomayor would let her “emotions get in front of the law.”Footnote ²⁷ Such an exchange uniquely captured the debate of Sotomayor's concern for empathy in deciding cases.

The fact that a man asked his senator if she would vote for “that woman” demonstrates the effectiveness media emphasis on her Wise Latina remarks had in framing the debate regarding Sotomayor's nomination prior to the hearings before the Senate Judiciary Committee. Newspapers reported on what were argued to be controversial aspects of Sotomayor's past; this allowed senators to amplify these external cues and raise questions about her judicial temperament and capacity for allowing emotions into consideration in her rulings.Footnote ²⁸ President Obama, when nominating Sotomayor, said “depth and breadth of one's empathy” and “their broader vision of what America should be” was critical for judges.Footnote ²⁹ Senator Sessions, during the hearings, said “Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law.”Footnote ³⁰ As Kenney (Reference Kenney2013) observed, it is ironic that Senator Sessions did not realize his identity as a white male also shaped his judgment of Sotomayor (18). Instead, his position of authority is used in an attempt to whip viewers into hysterics about what Sotomayor will do to the composition of the Court. Her emotions will be untethered and she will be given power to implement her activist preferences to the detriment of men.

These examples reveal, despite her lengthy résumé and years of service as a judge, those that were opposed to Sotomayor's confirmation were able to frame the debate by raising questions and drawing suspicion of her record through consideration of her identity. The word “empathy” served as an internal cue to evoke disdain for anyone who would refute reason in favor of desire. In this framework, the two are diametrically opposed. The question of her ability to rule fairly as a judge was so suspect that it gave rise to the term “empathy standard” during the hearings in regards to the possibility that she would consider emotions.Footnote ³¹ By making the word empathy something worthy of derision and suspicion, Sotomayor's opponents were able to couple it with doubts over her ability to make decisions with restraint. If she were willing to consider identity and heritage, as her Wise Latina comments show, she would also give consideration to the positions of others and consider empathy. As an activist, Sotomayor's opponents argued she would go beyond what was demanded by the law and the constitution and rule in favor of her unreasoned preferences.

The effectiveness of framing the nomination within these two choices, restraint versus activism and reason versus desire, put Sotomayor and her supporters on the defensive. Sotomayor herself spent time talking about prior cases where she followed the law in delivering her rulings, despite where her sympathies resided.Footnote ³² After her anecdote, Senator Klobuchar went through a painstaking process to detail rulings made by Sotomayor in which the average person would have sympathy for one side, but in which case the judge ruled in favor of the other in accordance with the law.Footnote ³³ The exchange was testament to how a qualified judge with an impressive resume could have her membership in outgroups, women and Hispanics, used to discredit her accomplishments.

Republican Senator Jeff Sessions drew on the suspicion built toward Judge Sotomayor leading up to the hearings in his opening statement. He criticized her judicial philosophy and suspected latent activism, arguing it would be “allowed to reach full bloom” if he voted to confirm.Footnote ³⁴ This would seem to suggest either that Sotomayor's full capacity as a judge had been restrained thus far and would be able to grow into activism should she be confirmed to the Supreme Court, or a level of disingenuousness in her capacity as a judge. The insinuation he made was that instead of ruling in accordance with mainstream understandings of the law, Sotomayor had instead been playing a role in order to serve her own agenda. This is reminiscent of the medieval conception of the succubus demon: she threatens to devour men but is hidden in plain sight in human form. In Sotomayor's case, that agenda is to be confirmed to the highest court in order to become unrestrained and thus unchained by things such as precedent and the threat of reversal from higher courts. Again, Session's use of such language was not commensurate with Sotomayor's history as a judge for nearly two decades.Footnote ³⁵

It is in such comments that the underlying heterosexist conceptions of our governmental institutions are revealed. Language was used by opponents to appeal to the senses by using metaphors and invoking imagery associated with modesty, reproduction, growth, and sexuality, such as the idea of clothing nakedness and covering that which might offend, as well as comparing Judge Sotomayor to a flower not fully in bloom. It represented an unnecessary appeal to emphasize Sotomayor's gender, while using sexualized imagery to suggest that she might not be fully developed in her judicial philosophy or feign judicial modesty in a subversive attempt to obtain a higher position in government. This condescending paternalism allowed the speaker to undermine Sotomayor's credibility, despite her many years of experience, in order to question her motivations and reiterate the risk associated with appointing a justice who is a woman by linking her with judicial activism.Footnote ³⁶

By repeatedly mentioning the Wise Latina remarks, Republican senators effectively structured their argument against Sotomayor within the constraints of the restraint versus activism debate.Footnote ³⁷ They stressed comments suggesting she might be an activist on the Supreme Court and has previously signaled a willingness to take into consideration identity in decision-making.Footnote ³⁸ These criticisms forced her to backtrack and apologize, calling the remarks a “rhetorical flourish that fell flat.”Footnote ³⁹ Advocates on the committee came to Sotomayor's defense by using various tactics: Senator Durbin underscored the context of the speech; Senator Klobuchar reminded listeners that the Senate had confirmed the judge for a lower court position without mentioning them; and Senator Specter stated that people were making a “mountain out of a molehill,” given that prior nominees were allowed to reference their life experience and background.Footnote ⁴⁰

Some senators did recognize the confining debate over Sotomayor and activism. Democratic Senator Feingold told viewers at the beginning of Sotomayor's nomination hearing to be wary of the term “activist,” as it often denoted “a judge who decides a case in a way you don't like.”Footnote ⁴¹ However, it is worth observing how senators on both sides of the aisle employed the terms. Senator Franken told Sotomayor that he feared activism was “on the rise,” while also agreeing with Feingold's definition.Footnote ⁴² Republican Senator Cornyn applied a different definition of activism, saying it could be a good thing, “if it is enforcing the rights and the laws that have been passed by the legislative branch,” but that it would be a bad thing if it involved “inventing new rights” and “veering off this course of enforcing a written text.”Footnote ⁴³ It demonstrates the limited utility of using such terms to discuss jurisprudential disagreements.

Republican senators, such as Sessions, were aware that both conservative and liberal justices could be characterized as activists.Footnote ⁴⁴ Nevertheless, this did not deter him or other Republican senators from spending a significant amount of their time deriding activism within the judicial branch.Footnote ⁴⁵ Democratic senators that subscribed to the restraint versus activism construction helped cede the debate and were relegated to emphasizing Sotomayor's judicial temperament and modesty.Footnote ⁴⁶ Sotomayor herself rejected the debate within the framework of activism versus restraint and instead characterized constitutional questions and arguments regarding the law as having “no objective stance but only a series of perspectives. No neutrality, no escape from choice in judging.”Footnote ⁴⁷ This contrasts with the next woman nominated, Elena Kagan, who unlike Sotomayor, tolerated the characterization of restraint versus activism.

THE NOMINATION OF ELENA KAGAN TO THE U.S. SUPREME COURT

Unlike Sonia Sotomoyor, Elena Kagan, nominated by President Obama in 2010 to be the fourth woman who would serve on the U.S. Supreme Court, did not easily fall into two outgroups. With no prior judicial experience, Kagan's nomination hearing to replace retiring Justice John Paul Stevens focused on prominent issues during her tenure as dean at Harvard Law School and then as solicitor general for the United States. Special emphasis was placed on her role as dean when military recruiters were prohibited from using the law school's facilities due to a conflict between the institution's nondiscrimination policy and the military's “Don't Ask Don't Tell” (DADT) policy, which barred lesbians and gays from serving openly.Footnote ⁴⁸ While Republican senators jumped on this issue as an opportunity to show that Kagan did not adhere to the rule of law, they were also able to amplify suspicions about her latent sexuality discussed in the media and attempt to categorize her as belonging to another minority.Footnote ⁴⁹

After a photograph of Kagan playing softball was published on the front page of the Wall Street Journal on May 11, 2010, media outlets subsequently began reported on Kagan's sexuality and dating life. The New York Times mentioned that as a clerk, Kagan would go play basketball with the men while the women who worked for federal judges would exercise together.Footnote ⁵⁰ Surrogates for the nominee immediately professed that she had dated men in law school. While traditional media outlets had difficulty reporting on rumors and innuendo, digital news organizations and blogs were able to discuss the nominee's sexuality and dating life openly, even getting supporters that knew her to comment on the accusations.Footnote ⁵¹

The confluence of Kagan's gender and legal experience, particularly within the frame of the media, allowed her to be criticized as a nominee in much the same way as Sotomayor. She violated the traditional normative expectations for women in a patriarchal society as well as the expected judicial background for a Supreme Court nominee. These factors, along with the photo in the Wall Street Journal, placed her within two outgroups. It was not just that she was an unmarried woman, but she might also secretly be a lesbian. It allowed the committee to draw upon public perception of homosexuality as immoral. It also signified a double standard, in which a woman's relationship status was deemed a valid point of discussion and pertinent in assessing her for a public position.

Some addressed accusations leveled against Kagan as a secret activist circuitously during the hearings. On the first day, Republican Senator Sessions asked Kagan if, given her lack of experience, she is able to remain within the “harness of the law.”Footnote ⁵² This, once again, appeared to be an appeal to the dichotomous relationship between restraint and activism in approaching constitutional theory. Sessions used this simple metaphor to inquire about Kagan's fidelity and adherence to the law (a refutation of judicial activism) to operate within the confines he expected of a nominee to the Supreme Court.Footnote ⁵³

Other witnesses, such as Robert Alt from the conservative Heritage Foundation, assailed Kagan during the hearings for her liberal activism more explicitly. In his testimony Alt linked Kagan's nomination to a more general critique of activism in general—specifically, the liberal activism that is ready to overturn historic precedent. He did this by employing sexualized language to conjure imagery that tends to be threatening to the average person. He said a liberal activist court would turn legislation into an “orphaned eunuch.” Without parents, an orphan is alone in the world and vulnerable. They cannot reproduce and lack the capability to fend for themselves.Footnote ⁵⁴ This imagery of a eunuch implies castration, a threat to an established conception of society where the patriarchal family is the basic unit. The assumed dominance of men is thus threatened by such an activist Court furthering its liberal agenda. Unrestrained, that Court could lash out at what it sees as detrimental to society and remove its ability to reproduce, thereby rendering it useless and unnecessary. Interestingly, no such instances of explicit sexualized language were used by witnesses testifying against Sotomayor during her nomination hearing.Footnote ⁵⁵ For opponents of Sotomayor, the suspicion that she would be an activist could be quoted from her speeches where she discussed race and its influence. For Kagan, without concrete examples of speech indicating identity-based activism, they needed to create suspicion by linking her to a group that has been historically maligned, the LGBT community.

The committee therefore focused on LGBT issues related to Kagan's career to create this link. Along with the military's DADT policy, the committee had additional questions on the possible legal future for the Defense of Marriage Act (DOMA). These issues fit well within the confines of the debate between activism and restraint, as public opinion on questions regarding homosexuality were evolving in the American public and it was expected that at least one of them would come before the Court. Because Kagan was already primed to be the subject of suspicion raised in national newspapers over her sexuality, attempts to characterize her as a judicial activist in regards to issues of homosexuality were no doubt highly beneficial to her opponents.Footnote ⁵⁶

Charges of activism against Kagan provoked her Democratic allies on the committee to come to her defense. Senator Schumer noted that she “embodied modesty.”Footnote ⁵⁷ Kagan herself talked about having restraint and humility during the hearing. Additionally, Senator Kyl asked Kagan if she could be a “neutral arbiter,” again suggesting that he had reason to believe that so far she had not been neutral in her approach to the law.Footnote ⁵⁸ Furthermore, Senator Graham asked if her “activism can be parked.”Footnote ⁵⁹ While he may have been referring to her role as the “advocate” for the government's position as the solicitor general, it could also have suggested that he did not necessarily expect her to be restrained. Going into the hearings under suspicion and scrutiny of the public eye for her perceived identity and expectations about what it was supposed to be, Kagan continued to be harshly criticized as one who would violate the constraints of the system.

The debate between senators during Kagan's nomination hearing was placed within the theoretical confines of the restraint versus activism dichotomy. Unlike Sotomayor who refuted the characterization, Kagan herself enabled its construction to be maintained. At one point during the hearing, Democratic Senator Whitehouse observed a rise in 5-4 decisions on the Supreme Court, citing it as evidence that justices in a divided Court will follow their own personal policy preferences. In that instance, Kagan flatly refuted him, explaining that it merely meant that justices have honest disagreements about the law and was not indicative of personal preferences being followed.Footnote ⁶⁰ Perhaps it was easier for Kagan to refute Whitehouse than acknowledge an argument outside the simple constraints of the debate in which she was forced to partake. She did not have a record as a judge and, consequently, could refute suggestions of activism given no prior proof. Instead of having to defend an alternate conception of constitutional theory or how the justices on the Supreme Court reach their decisions, she deflected criticism within the confines of the existing restraint versus activism frame.