Interesting analysis of the way Sandra Day O’Connor’s “feminism” stacks up—or rather, fails to stack up—to contemporary feminist dogma.  From Cathy Young, “O’Connor’s True Feminism”, The Boston Globe:

By shattering a barrier to women’s advancement, O’Connor surely earned her place in the history books. But is her gender otherwise relevant to judging her legacy?

One remarkable gender-centric assessment of O’Connor appeared on the op-ed page of The New York Times, penned by Slate.com editor and Supreme Court correspondent Dahlia Lithwick. 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 O’Connor’s 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.

…Not to mention just one more piece of evidence to suggest that gender feminism, in its current liberal-academic incarnation, is less about the equality that comes from privileging the individual and her intellectual independence than it is about forming a hive-minded identity bloc that priviliges those “women’s issues” that have been decided upon by politictally-motivated partisan activists who presume to speak for an entire sex, and who shamefully label those women who dissent from the gender-feminist party line as “inauthentic” or “in denial.”

Not that O’Connor’s record in this regard is perfect, of course—often times her rulings strained to jibe with her political sensibilities at the expense of any coherent judicial philosophy—as Young herself points out:

[…] Overall, O’Connor’s jurisprudence was a mixed bag. Her famed flexibility and pragmatism could sometimes lead to arbitrary and inconsistent rulings: In a 1999 case that was in many ways similar to US v. Morrison, she voted to uphold federal lawsuits over sexual harassment in public schools.

Particularly unsatisfying was O’Connor’s attempt to find a compromise on the issue of affirmative action: She voted to strike down a University of Michigan policy that awarded extra points to minority applicants, but to uphold a law school admissions policy in which the use of race as a factor was less explicit. The result was to preserve a system that discriminates with good intentions and may well harm its intended beneficiaries. O’Connor’s prediction that such policies would no longer be needed in 25 years also demonstrates a rather poor understanding of the self-perpetuating nature of bureaucracies.

Lithwick, rather insultingly, sees O’Connor’s compromises as manifestations of her ‘’inner softie” (a woman after all!). It’s more likely that her pragmatism had a lot to do with a reluctance to interfere with established practices that she believed served society well: Her decision to uphold race-based affirmative action was influenced, in large part, by briefs from corporate and military leaders.

One of O’Connor’s favorite sayings reportedly is ‘’A wise old woman and a wise old man reach the same conclusion.” Agree or disagree with O’Connor in specific cases, she is a wise old woman and a worthy feminist pioneer—not least because she has always refused to be defined by her gender and to be boxed in by either feminine or feminist stereotypes.

I tend to be a bit more harsh in my assessment of O’Connor’s legacy as a jurist, but I do agree with Young that as a feminist, O’Connor reliance on a conservatism that recognizes the rights and equal worth of individuals—regardless of sex— is laudable, and should be a lasting piece of her judicial legacy.

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also commenting: Free of Chains, who curiously conflates the kinds of gender feminist demands on O’Connor evidenced in Dahlia Lithwick’s July 2 New York Times op-ed with demands made upon her by “her conservative critics.” Of course, as one of those conservative critics myself, I take exception to such an easy equivalency, and note in passing that the demands I placed on O’Connor were simply that she find a consistent legal philosophy—preferably one that restricts itself to interpreting the Constitution as written—and rule appropriately and coherently.

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update: Text of Dahlia Lithwick’s original op-ed posted here.