Okay, here we go again. The new rap on Sonya Sotomayer is that she is “overly aggressive,” maybe even a “bully” based on comments by anonymous lawyers on the almanac of the Federal Judiciary.
I have to admit that the whole debate makes me tired. I have constantly advised my female coaching clients that they simply do not has as much “bandwidth” as men, even in this day and age.
What I mean by that is that they are walking a tightrope. They can’t be too angry or, of course, they will be labeled with the B word. They can’t be too soft, or they won’t be tough enough. Men, of course, have the same kind of constraints in corporate America; they also have to be charming to be liked but the road they walk is simply wider.
As I wrote in my book Stop Pissing Me Off! What to do When the People You Work With Drive You Crazy, one of my clients learned the hard way that the war of the sexes still rages in the workplace. Coached by a mentor at her old law firm to be direct with support staff, she endeavored to do that in a new firm. She was brief, clear and direct. It failed miserably. Although the terms law firm and soft culture often don’t belong in the same sentence, my coaching client didn’t recognize that the new firm did, indeed, have a much softer culture. Consequently, the support staff found her approach to be nothing more than condescending and abrupt antics.
She had run smack into the old gender stereotype: men can be rewarded for hard-charging and direct, even angry behavior, but women may be penalized for the same tactics. Instead of being applauded, they’re called bitches. I had to inform my client of the sad truth that women’s styles are still examined differently. Women who fail in male-dominated workplaces leave a trail behind them: “We tried hiring a man but it didn’t work out.” It’s not fair, it’s not legal; but it does still happen.
NPL legal reporter Nina Totenberg analyzed the oral arguments of Sotomayor and found that her style was tough and blunt but no more so than other judges, especially when compared to notoriously tough judges such as Supreme Court Justice Scalia. Early in her judicial career Sotomayor was criticized as being too blunt, and her mentor Judge Guido Calabresi, former Yale Law School Dean, started keeping track, comparing the substance and tone of her questions with those of his male colleagues and his own questions.
As he told Totenberg “And I must say I found no difference at all. So I concluded all that was going on was that there were some male lawyers who couldn’t stand being questioned toughly by a woman. It was sexism in its most obvious form.”
Since I spent ten years standing in front of federal judges, I frequently joke to my speaking audiences that they can’t insult me, I’ve been insulted by professionals. (Not that they’re not professionals, it’s just not their job to insult me.) The people who are critiquing Sotomayor for behavior that most seasoned trial attorneys would find pretty typical should just get a grip!

Many words have been written about Supreme Court nominee Sonia Sotomayor’s 2001 assertion in a speech, later published as a law review article, where she said: “I would 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.” These rather innocuous comments have fueled a firestorm (never mind that Justice Alito made similar ones.)
While this all seems like a tempest in a teapot to me, one case where gender would have made a difference is the recent U.S. Supreme Court May 18, 2009, 7-2 decision that the Pregnancy Discrimination Act (the “PDA”) should not apply retroactively. In AT&T vs. Hulteen the Supremes found that AT&T is permitted to pay lower pension benefits to female employees if they took maternity leave prior to the enactment of the PDA. Predictably, the lone woman Supreme Court Justice, Justice Ginsburg, dissented.
As I wrote in my book on Sexual Harassment, this decision had its roots in a 1976 decision. Prior to that time, those of us who practiced employment law assumed that only women could get pregnant. In G.E. vs. Gilbert, a woman was fired for being pregnant and sued, claiming sex discrimination. The case worked its way up to the Supreme Court. There, the Supremes - all of whom were male at the time - evidently knew something we did not, since they ruled, quite absurdly, that pregnancy discrimination by employers “was not a gender-based discrimination at all.”
Congress fired back a scathing response to the Supremes by passing the PDA scolding, essentially, “Yo Supremes! Only women can get pregnant.”
So we thought we had that straightened out until last month with the AT&T case. (In her dissent, the current lone woman on the Court, Justice Ginsburg wisely suggested overruling Gilbert so it “can generate no more mischief.”) It is hard to imagine any woman who has ever been pregnant, or has contemplated being pregnant, finding that pregnancy discrimination is not sex discrimination.
While I agree with Sotomayor’s critics that, of course, you don’t want one’s background to lead to race based decisions, you do want, above all else, a judge with wisdom. Wisdom comes from study, yes, but more often from life experience. A diverse and yes, “rich” as Sotomayor tagged it, experience is critical for wisdom.
Coco Channel captured an enduring truth in one sentence: “In order to be irreplaceable one must always be different.” Louis D. Brandeis, the first Jewish Associate Justice on the United States Supreme Court, also captured the importance of uniqueness when he said, “America has believed that in differentiation, not in uniformity, lies the path of progress. It acted on this belief; it has advanced human happiness, and it has prospered.” As we teach in our diversity courses if differences make us a better nation, a more relevant organization a more innovative and successful company, we’re going to have to learn to cope with differences while also putting them go good use. I’m proud of the diversity of my own team.
Most of the American public argees. A new Associated Press - GfK Poll suggested that Americans have a more positive view of Sotomayer than they did of any of former President George W. Bush’s nominee’s to the high court. Half backed her confirmation. In the same poll, 63 percent supported affirmative action for women while fewer, 56 percent favor affirmative action for racial or ethnic minorities. Surprising, the poll did not define affirmative action, a critical error since, as I wrote in my book on Affirmative Action most people are confused about the legal definition of this term.
Is Sotomayor different? Yes. Does that difference matter? Yes. We do need a court that reflects the richness of American diversity at least enough to understand that only women can get pregnant.