March 16, 2012 10:49 AM

The Rhetoric of Marginalization

Posted by Steven Harper

By now, just about everyone knows about Rush Limbaugh's vile rant against the third-year Georgetown Law student who had the temerity to speak her mind before Congress. This post isn't about the subject matter of her testimony. Whether and which employers should provide health insurance plans that include contraception as a preventive care benefit for their employees will remain controversial, even after the U.S. Supreme Court rules on the Patient Protection and Affordable Care Act.

This post isn't about Rush Limbaugh, either. He is what he is. To some people, he speaks truth in a straightforward, albeit colorful, manner. To others, he's a carnival barker whose hypocritical aim is to rile up 99-percenters in ways that feed his ego and divert attention from his own stunning wealth.

Climate of incivility

Rather, it's about a climate of incivility that reserves a special rhetorical vitriol for women, especially those like Sandra Fluke. She is smart, articulate, and on the cusp of entering the legal profession from a top law school. Whatever else she learned at Georgetown, it probably didn't include dealing with public descriptions of her that included words such as "slut" or "prostitute." Or what to do when someone with a national radio following suggests posting Internet videos of her intimate moments, "so taxpayers can get their money's worth."

Even if he was telling a prolonged, off-color joke, Limbaugh's language was crude. But that's because it expressed equally crude thoughts. The larger problem is that Limbaugh may have said what many other people—mostly men—were thinking. Any doubters need look no further than Gary McCoy's cartoon in the March 7 edition of the New York Daily News or other comments throughout the blogosphere made in support of Limbaugh’s sentiments.

More disturbing is the fact that such attitudes aren't limited to criticizing women who speak in favor of contraception for health plans. Even conservative columnist Peggy Noonan, who once served as speechwriter for President Ronald Reagan, spoke about the broader issue on the March 11, 2012, episode of Meet The Press:

"One of the big problems with discourse in America is the way—forget left and right for a second—it's the way women are being spoken of. Women in public life. Women in politics. Women and policy questions.   . . . Somebody has to stop and notice that this sounds like a horrible, misogynistic war on women. We have got to stop it. I feel like the grown-ups have to step in. . . . Left, right, and center, it's getting horrible for women now. Let's stop it."

A joke is one thing, but . . .

Noonan's complaint goes to the language of marginalization. Relegating another human being to a distasteful subcategory of the species makes evaluating that person on the merits unnecessary. At a minimum it infects the assessment. As the number of powerful females grows, words of marginalization become interpersonal weapons of mass destruction. Such words are also like cockroaches—for every one that crawls into the public light, a hundred more thrive in darkness.

What's the relevance to the legal profession? None, some might argue. After all women have risen from a quarter of all law students in 1975 to almost half today. Yet something is amiss. Just look at the dismal representation of women at the top of big law: They comprise only 16 percent of equity partners in firms responding to the latest NALP survey. (Half of all firms refused to respond at all. Draw your own inferences and follow The American Lawyer's Women Partner Watch.)

Most of the men running large firms aren't Limbaughs. In fact, there are many benign reasons for the absence of equity partner gender parity in large firms. But I don't think those benign reasons are a complete explanation. Drilling down into the growing top-to-bottom compensation gap within equity partnerships would probably reveal another dramatic manifestation of the problem. Whether public or private, the thought is the father to the deed; words of marginalization can bridge the two.

The gender-specific aspect to all of this is both vicious and hypocritical. Would Limbaugh have used such reprehensible language to describe another man? What if, during an interlude between one of his four marriages, he had taken Viagra or Cialis and had a prescription drug benefit that paid for it? What would that make him or any other similarly situated male?

Whatever the answers, I have no desire to watch any of Limbaugh's videos.

Steven J. Harper is an adjunct professor at Northwestern University and author. He recently retired as a partner at Kirkland & Ellis, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at www.thebellyofthebeast.wordpress.com. A version of the column above was first published on The Belly of the Beast.

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