Fashion Crimes

If you thought we were beyond the point of scrutinizing the femininity of a woman in a powerful role, media coverage of Elena Kagan’s journey to the Supreme Court has been a sorry lesson to the contrary.

There’s the speculation about her sexual orientation that refuses to die—she has short hair, she’s 50 and single, and (gasp!) she’s played softball. The blogosphere has buzzed about her physical appearance for weeks, comparing her to various male celebrities, and over the weekend, the mainstream media—in the form of a style piece written by the Washington Post’s Robin Givhan—weighed in on Kagan’s “anti-style offensive.”

The article read as though Kagan should have removed her nose from those boring law books long enough to take some etiquette lessons or Netflix a season of Sex and the City—after all, Miranda, the lawyer on that show, managed to be trendy. Maybe then she would have learned to apply her makeup properly, sit with her legs delicately crossed, and carry herself with a ladylike posture.

Instead, in Givhan’s words, Kagan has “embraced dowdy as a mark of brainpower,” and she sits “hunched over . . . with her legs ajar.”

Never mind those degrees from Princeton and Harvard or the fact that Kagan was Harvard Law’s first woman dean and the nation’s first female solicitor general. Givhan wants you to know that she sometimes doesn’t cross her legs.

Asked why she feels Kagan’s outward appearance is a relevant topic to comment on, Givhan says, “I don’t think I really need to defend it. I think it’s obvious.”

Givhan acknowledges that women’s appearances are often subjected to a higher level of scrutiny, but she doesn’t believe that’s necessarily a negative thing: “Yes, women’s appearances are looked at more closely, but women have a lot more options.”

She says she evaluates style based on each person individually and not on gender.

Indeed, Givhan did write a piece about then-Supreme Court nominee Samuel Alito and his wife during his confirmation hearings in 2006. However, as noted by Matt Yglesias’s blog, it’s impossible not to notice the difference in connotation and word choice between Givhan’s evaluation of Alito’s style versus her commentary on Kagan’s.

Alito, while apparently equally conservative and boring in his wardrobe choices, gets to be “tidy but not fancy” and “Brooks Brothers solid.” And he avoided any “image missteps because he stuck to the basics.”

Kagan, meanwhile, wears little that “could be described as fun, impish or creative” and appears to be “stuck in a time warp.”

Perhaps more troubling, Alito’s wife—a woman who, at least in the context of his confirmation hearings, fulfilled the traditional supportive-wife role—was also deemed to lack style. But her clothes were described as “familiar and reassuring because they are the sort of clothes that populate office complexes, PTA meetings and the closets of many a working mother.” Her cable-knit sweater was dubbed “charmingly awkward.”

You get the picture. So what do Washington’s leading female Supreme Court lawyers have to say?

Latham & Watkins’s Maureen Mahoney says she was “appalled” by Givhan’s article.“[Kagan] dresses professionally. Why would fashion-savvy be a relevant criterion for assessing a judicial nominee’s qualifications?” She adds that Kagan “should be applauded, not ridiculed” for dressing in conservative business attire.

Sidley Austin partner Virginia Seitz observes that our culture has become increasingly focused on the physical appearance of both men and women, but she notes that commentary about women often has “a vicious edge.” Seitz speculates that could be the result of discomfort with women in powerful roles: “Usually verbal cruelty is a way to keep the upper hand.”

Patricia Millett, co-head of Akin Gump’s Supreme Court practice, says the discussion about Kagan’s looks is unlike anything she’s ever seen a male nominee endure. For this to be happening in 2010, she says, is “a sad statement.”

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