“The Couch of Restitution” (Or, The Devil and the Deep Blue Sea vs. The Devil in Miss Jones)

In a previous blog (feels like ages ago—I really must get out from under this blizzard of work!) I discussed the alienation of various aspects of human capacities and attributes, among them the sale of sexual services and the sale of "caring." I noted that, as per Professor Margaret Jane Radin, one significant reason for banning the sale of sexual services is the notion that commodification of this deeply intimate, personal human capacity could ultimately lead to dehumanization. This is true even in many cases where the seller of the sexual service ostensibly has a choice in whether or not to place her or his body into commerce. All too often "choice" is a slippery concept, and is strained to breaking in situations where the chooser has few viable options.

Consider a recent article in the ABA Journal that describes the case of a lawyer who allowed some clients to discharge legal fees by joining him on what he called his "couch of restitution" for sexual activity. After a client complained to the attorney ethics board in her state, ultimately the Michigan Attorney Discipline Board reviewed the matter and sanctioned the attorney by suspending his license to practice for 180 days. More than one client, had, in fact, complained to authorities that the lawyer had offered them the "couch of restitution" in exchange for legal services. According to the ABA Journal, the board opinion noted, "The high degree of similarity of these separate accounts established respondent's system of making sexual overtures to female clients who were seeking legal assistance in a domestic matter. These overtures occurred during a discussion of his legal fees."

It is perhaps not a surprise that women seeking assistance in domestic matters from mostly male lawyers might be asked to perform sexual services in exchange for a benefit. I first heard of such a thing years ago as a young college student when a middle-aged woman of my acquaintance shared with me all of the details of her sex-for-legal-services exchange with her divorce lawyer. I was horrified—I neither wanted to believe that this sort of thing happened nor that it had happened to someone I knew. This woman was a well-established suburban matron whose separation and pending divorce from her abusive husband had left her with few reserves of either money or self-esteem. She was, it seems, an ideal target. Back then I wrote her lawyer off as an abusive weirdo who represented few members of the legal profession. It turns out, though, that the woman that I spoke to is not alone: one scholar cited a nationwide survey of attorneys showing that 32 percent of the respondents answered that they knew at least one attorney who had engaged in sexual relations with a client. A posting to another blog late last spring, Above the Law, describes another lawyer recently sanctioned for trading legal services for sex.

This sort of thing, it turns out, cuts across professions—for instance, the "casting couch," where hopeful actresses perform sexual services for movie producers and directors, is the stuff of legend. Even in today's post feminist employment climate, successful women are sometimes derided as having "slept" their way up the corporate ladder, whether they did so or not. And last, but not least, stories of female students who exchange sexual favors with male professors for higher grades are still very much a part of the academic landscape, university faculty conduct codes notwithstanding. Part of the barrier to ending these types of behaviors is the way in which this sort of sexual favor trading is viewed in not only in specific professions but by society as a whole. Women who participate in such exchanges are sometimes viewed with scorn and derision, dismissed as calculating hussies who knowingly, willingly, and gladly choose to trade sex rather than money for desired benefits. In contrast, the men who accept the sexual pay outs are rarely subjected to public opprobrium and not very often held otherwise accountable; they are sometimes even lauded by locker-room style banter . This is no less true in legal settings. Just review the comments posed after the ABA Journal article linked above. One poster seems to call women who have made such trades with their lawyers "restitutes," a pun on prostitutes. Other posters mocked the fact that the complainer who initiated the matter complained only after she exchanged sexual services yet still received a bill. Very few postings evinced any sympathy or concern for the women involved.

Acknowledging that sexual contact between lawyers and clients is an ongoing and serious problem, in 2002 the ABA drafted a rule explicitly barring sexual contact between attorneys and their clients in certain contexts. Drafters cited the inherent power imbalance of the lawyer-client relationship, an imbalance that easily leads to the exploitation of clients by attorneys. Nonetheless, such abuses continue, as they occur in settings where few victims are willing to come forward. Especially for women seeking legal counsel in domestic matters, if the choice is between sexual activity with a lawyer or continuing on in a difficult domestic situation, it's the choice between the Devil and the deep blue sea. Or is it, as some would have it, the "Devil in Miss Jones?" that is the apt metaphor here?

 

 

Alienate My Affections: The Market (In)Alienability of Attending to Others (Or, Aynnie Did You Dun?)

I have been away from my blog for quite some days now as I plunge into teaching, writing, editing articles, and finalizing my dissertation. Anyway, with all of the intellectual cross-pollination going on in my life, I find myself thinking about the ways in which a number of the concepts I teach about and write about have value and meaning in my real life—yes, my other, mostly non-scholarly life, the one where I make extra strong lattes and watch the wind blow while hanging out with family and friends. I also inevitably end up thinking about just how limited and valuable time is. Both of these thoughts occurred to me the other day after teaching a Property class on "Market Inalienability."

"Market Inalienability" is an article in which the author, Professor Margaret Jane Radin, discusses the extent to which and whether society should ban (or continue to ban in the case of existing prohibitions) the commodification of certain human activities, aspects or attributes while allowing the non-pecuniary transfer of the same goods (if the use of the word "goods" doesn't beg the question). So, for instance, in the case of prostitution, there have long been rules that forbid such activities. In contrast, certain exchanges of sexual favors without direct payment, such as sexual intimacy in marriage, are completely permitted and even encouraged. Of course, a crucial question in the latter example is what it means to get paid for sexual services (how much marital romantic feeling is premised on the desire for general economic well being or even for more specific economic recompense, after all?), but for the most part our broad, modern social understanding of marriage marks it as the ultimate in sanctioned sexual exchange for non-pecuniary purposes. One significant reason for banning the sale of sexual services is, says Professor Radin, the notion that commodification of this deeply intimate, personal human capacity could ultimately lead to dehumanization. Hence, maintaining a system of non-commodification of sexual services (or, at least, "incomplete commodification" which may allow for some commercial activity in the realm of sex as an acknowledgement that values of autonomy and basic human need may require this) helps to promote "human flourishing" by preventing the objectification of human beings.

Well and good, I say. But does this still hold true when considering the "sale" of other forms of non-sexual interpersonal relations such as affection, caring, concern, or even attending to others in the form of working on their behalf? As to the latter point, isn't working for others for pay a form of human commodification? Indeed, working is one form of commodification that can have truly dehumanizing consequences. Thinkers such as Proudhon and Marx didn't call it "wage slavery" for nothing. We (mostly) non-Marxists in the Western world just call it a "job" and call truly dehumanizing situations "bad jobs." Ultimately, it's mostly all good if you can just get paid enough. "Get paid" has become one of the mantras of postmodernity.

This being the case, what's up with spending time on behalf of others and not getting paid? We generally call such actions by rosy euphemisms such as "volunteerism," "community building," "institution building," and even "homemaking." In what I perceive to be a far less rosy use of euphemism, we sometimes construct unpaid activities as actually being paid, either included in the pay you already receive ("it's a duty that's implied in the nature of your job") or being compensated by intangible, non-monetary personal benefits ("you will be incredibly appreciated if you do this.") But one woman's volunteerism or community building is another woman's unpaid and abusive labor situation.

Now, of course, there is significant value to labor performed without monetary compensation, and this is addressed by a number of scholars and non-scholars alike. Sometimes unpaid labor represents an investment that will pay off in pecuniary terms for the worker at some time in the future. Sometimes unpaid labor is what the worker "pays back" for societal benefits he or she has already received, often times in surfeit. At other times, unpaid "care work" (which I define as work promoting or supporting not just the practical needs of others but their aspirations, ideals or goals, and often heavily laden with an emotional, moral or ideological component) is, as some have argued, an operationalization of a broader "ethic of care" that seeks to address unmet community, institutional or personal needs.

However, in a perverse and inverse operation of the saying "you get what you pay for," all too often those who engage unpaid laborers in "care work" get far, far more than they would ever be willing or able to pay for. In contrast, sometimes unpaid workers in such settings, unless they hold prestigious, high profile positions, are not only uncompensated but devalued and frequently forgotten all together. In short, contributing to human flourishing via selflessness sometimes devolves into an absence of self. As one student said to me the other day after our class discussion of Professor Radin's piece and its implications: "What would Ayn Rand have to say about all of this?" (It was awesome to know that people are still reading Rand, even if, as the student said, he felt as if he had to hide the book from public view).

Is there room for the articulation of a principled Randian "ethic of egoism" in all of this, a positive affirmation of the worth of the individual in certain cases where that ethic is all too frequently being implemented only by the powerful? This is, I think, an especially trenchant question for women of color and women in general, as they seem to do an awful lot of the uncompensated work in our society, be it sexual, social or otherwise.

*This blog entry is a shorter version of one of my current working papers.

Masculine, Feminine, Or Human? (Or, Private Parts)

In a previous blog I wrote about horsey feminism and concern with a female horse winning a major horse race. (see Bully for You, Filly For Me). In that entry I discussed the disquieting effect of anthropomorphism that brings biology-as-social-destiny thinking to the animal world. Recently it all came flashing before my eyes as I watched the hullabaloo surrounding Caster Semenya, the 18 year old South African middle distance runner who won a gold medal in the 800 meter at the 2009 World Athletics Championship. Ms. Semenya is accused of not being female, and is now undergoing "gender verification" by the International Association of Athletics Federations (IAAF). The IAAF has explained that they do not suspect "cheating" but wanted to determine if she has a "rare medical condition" which gives her an unfair advantage.

Well, this is a horse of a different color. Or is it? The emphasis on exacting physical standards reminds us that the world of elite athletics, like horse racing, is far more than just a game. The existence of regulatory boards at the local, national and international level, all vested with varying amounts of quasi legal authority, attests to its importance. Athletes become more than just individuals, but instead are representatives of a unique form of cultural production—Big Sports. As I have written elsewhere (see my paper A 'Ho New World ), Big Sports, in its processes and prerogatives, is uniquely masculine and racialized, and is a venue where fans can act out fantasies of domination via the subordinated bodies of the athletes, whether on an individual, regional, national or international level. In the regime of Big Sports, athletes are more akin to animals: warm, breathing, performing bodies , pawns in the game to be scrutinized ("look at those shoulders!"), worshipped, rubbed and touched like totems or talismans and finally discarded as the circumstances dictate. The focus on women in Big Sports adds an entirely other dimension. Women are sometimes seen as an affront to male notions of sports performance, especially when prevailing cultural and social norms mediate for disinterest in sports participation among women. Excellent women athletes can and do raise social ire because they inhabit a domain that is fundamentally male.

So what about if a woman is not really a woman when participating in big time women's athletics? That's cheating, right? This raises a discussion about the gender aspects of physical performance. While many physicians and scientists would agree that males often outperform females in physical tests, what is not often enough discussed is the reliability of the physical performance tests selected in such assessments and the extent to which such outcomes are more a reflection of women's relative lack of training. So, for instance, if men often outperform women on push-ups, this may be a result of the women's lack of upper-body physical training rather than an innate strength advantage in men. At the end of the day, strength, like so many other capacities, falls along a spectrum in various individuals of either gender and concentrations of strength among men may be more socially rather than biologically dictated.

Yeah, yeah, you may say. How ever it is that men happen to be, on the average, stronger than women, doesn't matter. The difference in physical performance is what causes us to divide sports activity by gender. As one of my kids says, if they didn't, women would get blown away a lot until they catch up to male standards of training. To preserve women's sports, we have to limit participation to only women. Only women. Uh-oh, it's that dreaded p-word again: time for a panty check. (see my entry on Sarah Palin, "Teacher, Teacher, I Declare" for a discussion of a whole other kind of panty check—or is it?)

Determining gender is far more complex than many people imagine. If it were as simple as a panty check, a trip to the showers would suffice. Here the public seems to reduce the human to the animal, querying gender from its apparent physical aspects instead of recognizing the biochemical, psychological and sociological processes which comprise it. What is deeply troubling in the case of Caster Semenya is that regardless of the outcome of the official "gender verification", this young woman has undoubtedly been inalterably changed by international attention not to her full human essence, or even to her full athletic essence, but rather to her private parts.

 

It is Michael You Mourn For (Or, the Man in the Mirror)

When I was in high school my English teacher Mr. Tattu made us do something that I hadn't done since third grade: memorize a poem. I was indignant. "Why should I have to do something so hopelessly old-fashioned?" I fumed. Still, being heavily vested in my identity as a Good Girl and a Good Student (at least at that point in my life), I did it. The poem was Gerard Manley Hopkins' "Spring and Fall: To a Young Child". It goes:

Margaret, are you grieving
Over goldengrove unleaving?
Leaves, like the things of man, you
With your fresh thoughts care for, can you?
Ah! As the heart grows older
It will come to such sights colder
By and by, nor spare a sigh
Though worlds of wanwood leafmeal lie;
And yet you will weep and know why.
Now no matter, child, the name:
Sorrow's springs are the same.
Nor mouth had, no nor mind, expressed
What heart heard of, ghost guessed:
It is the blight man was born for,
It is Margaret you mourn for.

I have never forgotten this poem, especially since, as time has passed, I've come to truly understand its meaning. This is a poem about a child's innate understanding of her own mortality. Someday, sooner or later, we will all be gone. This poem kept playing in my head during the last few days as I reflected on the death of Michael Jackson. On the day that he died, I was traveling west to a conference and had been ensconced in a plane for several hours. I had passed the time doing something that I rarely do on such trips: conversing with the passengers next to me. It's not that I'm antisocial. It's just that, mostly, I've found that the average business traveler (and that's who I often run into on my itineraries) seems to have no interest in conversing with me. Maybe I don't seem…adequately business-like. Yes, we'll call it that. As I've remarked to some friends, there has been a remarkable upsurge in the desire of fellow business travelers to converse with me over the last year or so. When I think about it, it seems to coincide with Barack Obama getting the presidential nomination. Really. I think I have Barack (or maybe Michelle) to thank for making me more acceptable as a traveling companion. Anyway, as we touched down for the landing in Seattle my seat mate was showing me his Blackberry and its amazing bells and whistles. He turned it on as we reached the ground. I read the screen: Michael Jackson dead. I frowned and started to tear up, catching my breath sharply. My seat mate, puzzled, looked at the screen to see what had caused my reaction. "Oh, is Jackson dead? Wow, that'll be a big deal for a while.

A big deal indeed. I saw my whole life, and especially my childhood, pass before my eyes. Suddenly I was back in primary school listening to a Jackson Five song for the first time—somebody had brought it in to play during free time, as we were permitted to do. The class froze. "Who is that?!!" we shouted. Even we little kids knew that we had just heard something special. It was as if the unbounded joy and unmet longing of childhood came together in a heartbeat. Very quickly, the Jackson 5 consumed our and the public imagination. Michael, especially. We dreamed of meeting him. All the more we dreamed of it because we were from Los Angeles. Star sightings were common enough. My mother once worked in an upscale department store where she waited on Diana Ross. We actually knew people who had met Michael Jackson. Michael sightings and interactions became the highest-valued social currency of our childhood. A girl across the street from me named Juliet got a puppy from Michael Jackson because her grandmother, a maid for a Really Famous Person, had met him. A girl from my neighborhood named Venus got to go on the Dating Game with him. Yes, we had only a few degrees of separation from Michael Jackson. He was, to us, like a much better off, distant relative. Maybe none of us could be him. But we could see him; he was always there, somewhere.

As we grew up he was still there, but somehow far larger than life by then. We read tabloids, we heard the stories. Michael was…different. Maybe. But Michael was ours. He was like a cousin that you used to hang out with but then there came a day that you really didn't hang anymore but you still loved and admired him because he was great. And he was…yours.

So, if it seems strange to people that I am mourning Michael Jackson the International Pop Star, so be it. That's only a small part of who he was.

More on the Baby Daddy (Or, No Way Kin You Be)

I was e-chatting ( some of my best relationships are maintained via e-chat—brief but warm and informative electronic messages traded with friends) with Feminist Law Professors' Bridget Crawford earlier today about her recent blog post "White People's "Baby Daddy." Bridget invited me to weigh in via blog. Never one to pass up a chance to ruminate in the blogosphere (especially since of late I have been consumed with several other projects), I thought I'd give it a whirl. Her post begins:

<<When speakers use the phrases "baby daddy" and "baby mama" in non-colloquial contexts, do they mock African-Americans or do they embrace one way that the American vocabulary has been enriched by the contributions of African-Americans?  Both?  Neither?>>

This is a topic that I've toyed with off and on ever since I saw Amy Poehler of "Saturday Night Live" fame in the film Baby Mama a few months ago via cable (most of the time I'm too cheap to ante up for the movie theater, what can I say?). "Baby mama" (or the male variant, Baby daddy) is, as the blog post explains, an African-American (or African Caribbean) term denoting the mother or father of one's child who is not one's wife or husband (or even necessarily one's girlfriend or boyfriend.) It usually indicates a clear bifurcation of the biological functions of parenting from the social functions of parenting or intimate partnering. Increasingly bandied about in popular culture, these phrases are sometimes used to symbolize an immense social emancipation from the norms of domesticity: why keep the man (or the woman) when all you really want is the baby (and sometimes you don't want that, but that's another story) ? Baby mama and baby daddy are also, however, widely perceived as being emblematic of the eroding family in black communities.

Bridget Crawford ponders whether the use of these phrases by white people "crosses into twenty-first century blackface minstrelsy." My answer? Maybe. There is, all too often, a thin line between cultural appropriation (incorporation of "outsider" cultural artifacts without acknowledgement of the source) and cultural broadening (incorporation of "outsider" norms without acknowledgement because the "outsiders" come with the artifacts, that is, they are perceived as part of the polity and thus are able to continually participate in shaping the nature of the cultural capital that is incorporated.) We are not yet to the point where mainstream white society can assume that any adoption of black cultural norms is more exemplary of broadening than of appropriation. Some words and phrases stand as much as they ever did for white-racist inspired black oppression. These words still pack a punch for black people no matter how often repeated in white mainstream settings. "Ghetto," for example, is the new and the old black. The blog Bourgie, Interrupted seems to agree on this point. Nonetheless, while we still have a ways to go in sorting out black-white relations, we are, if not post-racial, certainly post-racist. By this I mean that it is definitely uncool to intentionally employ racist cant, and when it is employed unintentionally, right-thinking white people usually clean that …stuff… up pretty quickly. Or, if not clean it up, wrap it up, sometimes sending racism so far under wraps that it becomes both profoundly obscure and obscurely profound.

But more intriguing for me is not just the racial implications of the terms but the gendered implications, especially in the case of "baby mama". This is what hit me when I saw the film Baby Mama. As those of you who saw it know, the film uses the term with an ironic, postmodern, post-heteronormative spin—Amy Poehler's character is the gestational surrogate for another character played by Tina "bitch is the new black" Fey, another SNL alum. Amy is Tina's "baby mama." There is plenty of "baby mama drama" in the film, but not the usual kind. (For the uninitiated, a man has "baby mama drama" when, for example, his baby mama shows up at his new girlfriend's house and asks the new girlfriend for diaper and formula money since she has a job and is taking up time with the baby daddy. Another example is where, true story that happened at my cousin Tata's wedding, the limousine carrying the baby daddy and his new wife intentionally drives by the baby mama's house right after the wedding and blares the horn, and the baby mama comes out holding the baby and curses out the whole wedding party…oh, sorry, I digress…) The film explores the clash of class and cultural norms between the two women, painting them both in high relief in order to tell the tale. Tina Fey is the wealthy, cultured career woman who has put off childbearing in her early years only to find that she is having difficulty conceiving. Amy Poehler play the low life "white trash" woman with a trashy boyfriend to match who wants to make money from surrogating. Brilliant, I thought. What better way to explore the outer limits of divorcing the social and biological aspects of parenting than by mocking gestational surrogacy? Since the seminal Baby M case in 1986 that brought surrogacy to public light, surrogacy has become a much used, mostly legally sanctioned activity (it's still forbidden in some places, and is stringently limited in others) that has made the joy of childbirth a reality for persons who in the past had little hope of creating families in this way. But at the end of the day, surrogacy remains very much a contractual, marketplace arrangement that is all too often (but certainly not always) entered into by less privileged women in our society. Commercial surrogacy, or "reproductive outsourcing" is a growth industry in some parts of the world. Poor women in India, for example enjoy surrogacy fees that equal two or three years' salary.

But what's all this got to do with the price of diapers in Detroit? Plenty, I'd say. "Baby mama," whether used in the black cultural context or to signify women as gestational surrogates, for me signifies an unquiet anomie that bubbles under society's surface. It is a weird, circular wheel on which personal and relational autonomy, here, the right to separate parentage from other social relationships, runs head first into the oppression wrought when the bonds of kinship are not only broken but treated in some cases as if they never existed.

Bully for You, Filly for Me (Or, The Alphas and the Omegas)

I had been meaning to blog on a New York Times article from a few days ago about the "phenomenon" of women in the workplace who harass, intimidate and sabotage other persons in the workplace. I'll call them bully girls. The article notes that while most workplace bullies are men, about forty percent of workplace bullies are women. It also notes that about seventy percent of the victims of female bullies are also women. The article decries this apparent affront to feminism. As one commentator suggests, such behavior is distressing because it is "antithetical" to the way women are supposed to behave to other women and gives lie to the claim that women are "nurturers and supporters." One commentator in the article suggested that woman on woman bullying may occur because women learn to fight with one another for male attention at any early age. "We're competing with our sisters for our dad's attention or for our brother's attention." I guess the girls just can't help it.

Say what? I don't know what's so surprising about the existence of bully girls. What pink cloud have some of these people have been living on? While it is possible that the behavior that is being described as "bullying" in women is just called "leadership" or "asserting authority" in men, this is not necessarily the case. (That's called the "B" factor, and the b doesn't stand for witch.) People with power, women included, are sometimes…mean to people without power. And it may have nothing to do with peculiar womanish problems. Earth shattering? I hardly think so.

Before I could get to the blog on bully girls another news item struck my attention: "Rachel Alexandra Wins the Preakness" blared the headlines in my New York Times news on tap e-mail. "Wow," I thought. "A female jockey?" Er, no. Rachel Alexandra is the filly that won. The horse. Ridden by a male jockey. The stories about Rachel Alexandra noted that she had broken a horsey glass ceiling of sorts, winning in a field of several highly rated male horses. Relatively few female horses have had big wins of this nature. Another female horse, Eight Belles, came in second in the Kentucky Derby last year but she fractured both front ankles in the race and had to be destroyed. Competing with all those big, rough boy horses was her undoing, according to some pundits.

So what do these two stories have to do with each other? A lot, if you think about it. Both have to do with that really odd gender othering that we do. Take the bully girl (please.) Despite the fact that women are half of the population, they are still treated as if they are slightly outside of the human species. Bully girls are noteworthy because of expectations of a quiet, calm domestic demeanor that follows women from the home place to the workplace. But we all know that some women weren't all sweetness and light even when they were relegated to the home front. Nor were women necessarily "nurturing and supportive" when it came to the women employees they supervised at home, namely, their domestics. As scholar Mary Romero writes, this was particularly true when the women bosses were white and the domestic workers were women of color. The relationship between domestics and their lady of the house bosses was frequently characterized by "spatial and verbal deference," emblems of an unremitting though often silent race and class struggle.

As to all the pretty little fillies that are featured in high stakes professional horse racing, gee, why make a big deal out of a filly winning a major horse race? Well, it seems that some of the same biology-as-social-destiny thinking that features in discussions about human capabilities is also seen in the horse world. It is apparently common in horse racing circles to rate male horses over females, colts over fillies, because of beliefs that fillies may be easily intimidated by the more aggressive colts or may be physically too fragile to withstand the rigors of big races. As one observer said of Rachel Alexandra: "[she] marked herself the alpha-filly of her generation, and it is that kind of horse who has earned a chance to tackle males."

Well, doggie. That's some mighty fine anthropomorphizing. Exporting human social categories such as gender to the animal world and attributing human motivations to the behavior of animals has always been a peculiar phenomenon. Moreover, the practice of investing non-humans with a gender identity ('"engenderneering" as scholar Roy Scwartzman calls it) further sheds light on the values and ideals of the broader culture in which we live. We struggle to find a way to understand the behavior of beings that are other than us. The distinction between human behavior and animal behavior was thought to be pretty clear cut for centuries. But the more we study animals, the more we find that they may have traits and capacities that are just as worthy of respect as our own. They may even behave like us in some cases. What does it mean to be human, anyway? Those boundaries just seem to be slip sliding all the time ("talking" dolphin, anyone?).

In this regard, anthropomorphism has a lot to do with the effort to reconcile human maleness and femaleness. As scholar Wendy Lynn Lee suggests, anthropomorphizing has serious implications for how we construct gender, racial, sexual and class norms in the human world, and for how those norms are deployed. This is because the essential "truth" of anthropomorphism is that the human experience is central, and is posited as the model for understanding the behavior of all living beings (and even in some cases the properties of inanimate objects). Moreover, the human who figures in Westernized anthropomorphic musings is typically straight, white and male: the alpha norm around which all other identity classes group. Those other identity classes are secondary. I'll call them omegas. Because status is often hierarchically arranged based on the relative acceptability of ones identity, there are often some pretty lively battles for avoiding the bottom-most identity status. Being the omega of the omegas is pretty cruddy.

So, what are these identity-challenged omegas supposed to do?

Make like the filly: Keep running, fast. At least until the race (or the way we think about the race) changes.

Color Her Justice (Or, If the Shoe Fits)

Supreme Court Justice David Souter recently announced that he would step down, clearing the way for President Obama to appoint a new Justice in Souter's place. Immediately pundits were abuzz with possible candidates. One strain of commentary was particularly salient among the progressive bloggerati: President Obama should appoint a woman, and she should be a woman of color.

That seems like an interesting possibility, in light of the fact that few women (and no woman of color ) have graced the bench of our highest court. Imagine, another pair of pumps to keep the wing tips at bay. (For some people the relevant dismissive gendered metonyms are "skirts" and "suits". I'm a shoe person, what can I say? ) Who will she be? One prominent name offered is Judge Sonia Sotomayor, an Associate Judge of the Second Circuit Court of Appeals. Judge Sotomayor, a Latina (or a His-Panic, as Conservative commentator Pat Buchanan seems to pronounce it, Freudian slippage evident) is someone whose name has been offered for high judicial office from time to time by both Democrats and Republicans. She is, according to some, that elusive creature, the "political centrist." Hmm.

What does that mean? Or, more to the point, should we be worried? Choosing Justices for the Supreme Court is fraught with the peril of getting it wrong, that is, choosing someone whose pre-Court behavior ends up having little to do with his or her Court behavior. History is full of examples. David Souter, the Justice to be replaced, most easily comes to mind. Justice Souter was appointed by George H.W. Bush after having been touted as a "confirmable conservative". His voting record has instead mostly been one of studious moderation, as he aligned himself with the more liberal wing of the Court in later years. Anther famous "mistake" was former Chief Justice Earl Warren, who was appointed by Republican President Dwight Eisenhower on the premise that he was reliably socially conservative. The Warren Court, as most of us know, was instead the source of a series of landmark decisions that changed the social and jurisprudential landscape of the United States.

Several recent appointments, especially those under the second President Bush, are seemingly more true to expectations. Chief Justice John Roberts for the most part has certainly lived up to the hype, given his decisions in cases such as Parents Involved in Community Schools v. Seattle School District No. 1 , where he penned the majority opinion disallowing the use of racial classifications for purposes of school integration. Roberts: ""[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—Gee, is that all we have to do? Who knew? All that time wasted living in a racist society..... Justice Samuel Alito, another recent conservative pick, has also done yeoman's work for the conservative cause. He was nicknamed "Scalito" in the early years of his term for his fairly consistent concurrence with uber-Conservative Justice Antonin Scalia.

But the truth is, looking closely at the records of even the ostensibly most conservative judges reveals some streaks of judicial independence. It may well be that tenure on the Court often works the way it's supposed to work—there is a smoothing of sharp edges as the pure fire of justice reshapes extreme political ideologies. Yes, there is still a left, right, and center on today's Supreme Court. But those typologies may be increasingly more blurry and consequently less useful in predicting how a Justice will rule.

If this is the case, what then is the role of race and gender in understanding the type of jurist a woman of color will be? Past and ongoing racial and gender discrimination in the United States means that women of color often see life through a particular lens, one that likely affords them a clarity of vision about issues of equity. What they observe through those raced and gendered lenses, however, may not be what we think. For instance, Justice Clarence Thomas, appointed by George H.W. Bush to fill former Justice Thurgood Marshall's seat, while an African American, is certainly no Thurgood Marshall. He must have been (and must still be) wearing 3-D glasses.

When President Obama goes out seeking the Supreme Court nominee who best fits the glass slipper, let us hope (choose one of the following shoe metaphors):

--the shoe fits.

--the nominee clicks his/her heels together three times and brings us back from jurisprudential Oz.

--(s)he's already walked a mile wearing the other one.

--the nominee doesn't take it and throw it at the American people.