Fat Judges Need Not Apply

From left: Kim McLane Wardlaw, Elena Kagan (AP Photo; Getty Images) Justice may be blind, but not when it comes to weight. Paul Campos reports on the bizarre campaign to find a woman to replace David Souter on the High Court—as long as she’s thin.

Beth Brinkmann has argued more than 20 cases before the Supreme Court—more than any other woman—but in 1996 her membership in the exclusive club of SCOTUS advocates was nearly revoked, after she committed a serious professional blunder.

Did she cite an overruled case? Fail to mention an on-point precedent? Freeze up under the relentless questioning of the justices? No, she wore a brown skirt suit.

Wardlaw’s “ectomorphitude” also gets rave reviews at legal gossip site Underneath Their Robes, which describes her as “Heather Locklear in a black robe. This blond Hispanic hottie boasts a fantastic smile and an incredible body, showcased quite nicely by her elegant ensembles.”

At the time, Brinkmann worked in the solicitor general’s office, and her boss, Walter Dellinger, received a letter from then-Chief Justice William Rehnquist. Apparently, the justices had held a conference on the matter, and concluded that brown was not a suitable color for an advocate’s skirt suit.

According to The Legal Times, Dellinger wrote back, “defending Brinkmann and respectfully pointing out that not enough women had been in the SG's office for long enough to establish a sartorial norm.” Women in the SG’s office were sufficiently annoyed to dub the incident “Bethgate.” But they also got the message: From then on, when appearing before the court, all of them wore black.

Now Brinkmann’s name is being floated as a possible successor to David Souter, so her fashion faux pas didn’t derail her career. But the incident is a reminder of how cosmetic considerations often manage, when women and power mix, to become matters for the strictest scrutiny.

Consider the two women widely considered the frontrunners for the nomination: former Harvard Law School dean and current Solicitor General Elena Kagan, and federal appellate judge Sonia Sotomayor.

Within hours after the news broke that Souter was resigning, concerns arose that Kagan and Sotomayor might be too fat to replace him. A commentator on the site DemConWatch.com noted that of the three most-mentioned candidates “the oldest (federal judge Diane Wood) is the only one who looks healthy,” while Kagan and Sotomayor “are quite overweight. That’s a risk factor that they may not last too long on the court because of their health.”

At The Washington Monthly, a commentator claimed to have employed a more scientifically rigorous method: “To all the short-sighted libs who are clamoring for the youngest-possible nominee... Right idea, wrong methodology. You want someone who will serve the longest, i.e. with the greatest remaining life expectancy—and that involves more than simple age. I tried assessing their respective health prospects, and ruled out all who even border on overweight. Best choice: Kim McLane Wardlaw, whose ectomorphitude reflects her publicly known aerobic-exercise habits.”

(Wardlaw’s “ectomorphitude” also gets rave reviews at legal gossip site Underneath Their Robes, which describes her as "Heather Locklear in a black robe. This blond Hispanic hottie boasts a fantastic smile and an incredible body, showcased quite nicely by her elegant ensembles.")

Meanwhile, a letter writer at Salon comments on Sotomayor’s candidacy, “How do you say 55, overweight, and diabetic in Spanish?” (Sotomayor was diagnosed with Type I diabetes—which doesn’t correlate with higher weight—when she was a child).

All this would be easy to dismiss as meaningless Internet chatter, if it didn’t obviously spring from some widespread cultural assumptions—assumptions also reflected in such things as Rehnquist’s bizarre and offensive letter.

Three of these assumptions—that a woman’s appearance is far more important than a man’s, that extreme thinness in women is especially desirable, and that weighing slightly more than average is a major health risk—have become interrelated in subtle and invidious ways.

In the cases of Kagan and Sotomayor, the absurd idea that their weight represents the sort of health risk that ought to be taken into account when considering whether to appoint them to the Supreme Court illustrates both how hysteria about being “overweight” has gotten out of control, and how such concerns often camouflage less-respectable impulses.

Based on photographic evidence, Kagan’s and Sotomayor’s current weights almost certainly do not even correlate with any increased mortality risk, let alone one that ought to be considered in the nomination process (for average-height women, no increased mortality risk correlating with weight begins to appear until weights above 200 pounds).

So what’s the real motivation for all the anxiety about the bodies that house two such apparently distinguished legal minds? A glance at the comments at a site such as Abovethelaw.com, which features a number of vicious attacks on Kagan’s appearance, provides one clue. For some men, the only thing more intolerable than the sight of a powerful woman is the sight of a powerful woman they don’t want to sleep with.

Another hint might be found in Jeffery Rosen’s odd New Republic essay regarding Sotomayor. Using exclusively anonymous sources, Rosen speculates that Sotomayor may be, in the words of one of those sources, “not that smart and kind of a bully.” He includes an anecdote about an “elderly judicial colleague” who basically told Sotomayor to shut up during an oral argument (“Will you please stop talking and let them talk?”).

Rosen, a law professor, admits that he hasn’t actually read enough of Sotomayor’s work to form an independent opinion about whether the sniping regarding her supposed lack of analytical firepower has any merit. One need not be a radical feminist to wonder if a little more homework is in order before you publish a piece implying that a woman with Sotomayor’s résumé might be too dumb and “overbearing” (aka bitchy) to serve on the Supreme Court.

All this is speculative, but sexism isn’t always as outrageously and amusingly obvious as it is in Rehnquist’s letter. And the cosmetics of power aren’t exclusively unisexual: recall the swooning reviews that John Roberts’ dreamy good looks drew from many supposedly sober pundits.

Still, nonsense about women, weight, and “health” is particularly pervasive and destructive. Indeed, if we were really concerned about medical risk factors that actually do have a significant negative correlation with a candidate’s life expectancy, the most relevant is one that has afflicted 108 of America’s 110 Supreme Court justices: being a man.

Paul Campos is a professor of law at the University of Colorado at Boulder.