Naomi Schoenbaum on Elena Kagan’s “Post-Identity” Approach to Gender

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Naomi Schoenbaum, a Bigelow Fellow at The University of Chicago Law School, has published "Post-Gender Justice: What Does Being a Woman Mean to Elena Kagan?" in The New Republic.  Here is an excerpt:  

Kagan has been deemed a female pioneer: the first woman to lead Harvard Law School and to serve as solicitor general. Yet, despite this impressive list of firsts, Kagan (who was dean of Harvard Law School when I was a second- and third-year student there) has not taken up the helm as a leader on women’s issues, or explicitly identified herself as a woman leader in the law. This has something to do with her age. The first generation of women lawyers to make it to the highest echelons of the American legal profession—who faced enormous barriers in the profession simply because they were women—had no choice but to take on gender as a defining feature of their legal education and career. * * *

[Kagan] has given no indication that she considers her gender to be a factor in her legal thinking. In her opening statement two weeks ago, she paid tribute to O’Connor and Ginsburg, and recognized that she herself wouldn’t be where she was without them. But her broader career, including her rise in academia and her tenure in the White House, has been marked by no particular interest in women’s issues. The most relevant of her few academic writings on gender-related topics—an article on the constitutionality of pornography and a student note about Title VII of the Civil Rights Act, which revolutionized sex discrimination law—focused on doctrinal or procedural issues, rather than substantive questions related to gender equality. * * *

After reaching milestones in academia and the Obama administration, Kagan has been invited to speak on issues related to women in the legal profession, but, on these occasions, she has concentrated on the data and avoided statements about sex discrimination. In discussing gender disparities in the law, she has focused on women’s choices, such as how women opt to “move around in different areas” rather than aim for “the pinnacle,” and how “many of the issues that women face in the workplace are issues for men as well.” What’s more, when Kagan has spoken on women’s issues, in contrast to O’Connor, Ginsburg, and Sotomayor, she has steered clear of discussing the way gender affected her legal career. * * * 

 Like President Obama, the man who nominated her, she has portrayed herself as a figure beyond identity politics.

Schoenbaum’s full article is here.  It’s worth a read.

-Bridget Crawford

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1 Response to Naomi Schoenbaum on Elena Kagan’s “Post-Identity” Approach to Gender

  1. Barbara Burke says:

    I watched the Kagan hearings hoping there would be an exchange in which she had the opportunity to address her work and support for gender issues. I would have been thrilled to hear her self-identify as a feminist. Perhaps that is too much to ask. Or perhaps is is an example of the generational differences within feminism. Just the other day during an interview at the Aspen Ideas Festival Justice Ginsburg called herself a “flaming feminist.” When I read that I thought immediately – that is the difference – they say it. Justice Ginsburg is 77 years old and we should all have as clear an understanding of feminism as she. Rock on , Ruth.

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