Two Words

It's a good Saturday morning. The sun is out, the house is quiet, and I'm engaging in my favorite morning activity: sitting on the couch under a blanket reading blogs and the news in absolutely no hurry at all. Since I've got nowhere to be, I can savor the writing a little more, I can read more slowly, in fact, I can actually read instead of skim. I go through probably two to three hundred pieces of stuff in my RSS reader every day, so there's a lot of very fast skimming. So I'm reading this NYT article by Adam Liptak analyzing the impact of the recent decision which weakened the exclusionary rule. The content isn't really important to what I want to say about the article, but for context: the exclusionary rule is the principle that if the police break the rules while procuring some piece of evidence, that evidence can not be used to prove that a crime occurred. So if police need a search warrant to enter your house, and they don't procure a warrant, they can't use drugs they find in your house to convict you of possession. Or if police torture you to obtain a confession, the confession can't be used to prove that you did whatever you're accused of. The idea is that the evidence might very well be valid, but that the exclusionary rule is for "deterrence." That is, if police know that evidence obtained by breaking the rules will be thrown out, they'll be more likely to obey the rules.

Anyway, the finer intricacies of the exclusionary rule are not what interest me today. I thought Liptak wrote a fine piece, and explained the law and the opposing views quite well. He also discussed the evolving personal philosophies of the justices, which is a subject that always fascinates me because I think it's a unique idiosyncrasy of American law and jurisprudence (and really, politics) that important questions of how we live our lives can end up hinging on the deep thoughts of a single person not elected to office.

And then I get to this:

Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

(Cue record scratch) What? Her tone was "sharp and flinty?" I've heard O'Connor, and her voice is neither particularly sharp nor flinty. Had she had some kind of voice-box operation? A scratchy throat? Ingested significant quantities of helium? Or was this complete editorializing on Liptak's part, through a convenient sexist lens? I suspected the latter. Because remember, O'Connor is not only a woman, but an old woman, an old, powerful woman, and this she ends up frequently portrayed as a crone of the highest order (see, e.g. Nancy Pelosi).

So, I did a little digging. First, I managed to pull up the transcript from the oral argument in question. It didn't take much searching around to find it, and this is what it said:

MR. SALMONS: That's not --
JUSTICE O'CONNOR: -- to just go in. So,
if the rule you propose is adopted, then every police
officer in America can follow the same policy. Is
there no policy of protecting the homeowner a little
bit --
MR. SALMONS: Of course the --
JUSTICE O'CONNOR: -- and the sanctity of
the home --
MR. SALMONS: Of course there is --
JUSTICE O'CONNOR: -- from this immediate
-
MR. SALMONS: -- Your Honor, and that is
not --
JUSTICE O'CONNOR: -- entry?
MR. SALMONS: -- our position. And we,
respectfully, would argue that that's not an
appropriate way to conduct the deterrence analysis.

Well. So far, this is not matching at all with the image Liptak is giving me with his "sharp and flinty." So I wondered, was Liptak there? Or maybe he just listened to a recording? Because from the transcript, I don't see how you get "flinty." In fact, what I get is "Dude, don't you know that you're supposed to shut the hell up and let the justice finish the question?" The, like, second thing they teach you in law school is "Don't interrupt the judge."

So I had to know. What did it sound like? For your listening pleasure, I've clipped off from the hour-long argument the few seconds of this exchange. Let's have a listen.



I'll let you judge for yourself whether there's any way, without sexism, that O'Connor's tone could be described as sharp or flinty. This is such a small thing. It didn't add anything to Liptak's description. It didn't add anything to the discussion of the exclusionary rule. In fact, several other people are quoted in the article, and there's no unnecessary editorializing about how they sounded whenever they said the quoted material. The article is not, as a whole, sexist in any way. So why seize on this one thing? Because it baffles me that this kind of small stuff makes it into print and television and movies all the time. I don't have any particular expertise beyond being a relatively close reader (when I want to be) and having read a few feminist blogs here and there, and this jumped out at me like a samurai with a sword. Was there no editor there to say "Adam, what the hell is this?" It adds nothing, and futhermore, it's not even accurate.

And it's a compendium of a million tiny things like this that make me never able to forget, not even for a moment, that I am a woman and thus subject to disdain and disgust at any possible moment, without reason or warning.