Below is my column in The Hill newspaper on the expanding number of Democratic presidential candidates pledging to choose a woman as a running mate. What is striking is how these pledges have not even warranted a question in coverage over the propriety of such pledges since they would bar any males regardless of their qualifications to lead the nation. It raises an interesting conflict between the political and legal realms in stating such threshold conditions. What would be strictly forbidden for any business or agency or school is permissible in politics.
Here is the column:
The pool of Democratic presidential candidates for 2020 is not just the largest in political history but also the most diverse. The impressive array of women and minorities follows the first female Democratic presidential nominee in 2016. That followed two successful nominations and election of an African American as president. That is something in which every citizen can take pride, and it should inspire even greater efforts to draw more women and minorities into politics. However, this campaign season has seen how calls for diversity can easily become calls for discrimination.
Four presidential candidates have indicated they will only consider women for vice president, while other leaders have proclaimed that women govern differently than men. What is most striking about such pledges is that they would result in a federal prosecution if the candidates were running even a small business or agency. Instead, they seek to run the country based on a pledge not to consider men regardless of their qualifications. It presents an interesting conflict between our legal and political values in the use of race and gender as a criteria for selection.
Representative Eric Swalwell of California recently made his pledge after declaring, “Spoiler alert: I’m a white man.” He asked voters to look beyond his race and gender but assured them that he would only consider a woman as his running mate. It was a curious pitch in which he insisted he does not think the identity of a person should “hold them back” yet he also pledged to deny other men the chance to be his vice president.
Senator Cory Booker of New Jersey also promised not to consider any man to be his running mate. To rapturous applause, Booker declared, “I will have a woman running mate. To me it is really clear that we do that.” Such clarity has come from a variety of liberal figures now emboldened by rising rhetoric that dismisses white male candidates.
On daytime talk show “The View,” host Joy Reid confronted Swalwell with a question that, if reversed, would be denounced as blatant racism and sexism. She asked, “Why does the field need yet another, to be blunt, another white guy?” The premise of her question is that candidates are defined to a major degree by their gender. The “white guys” are portrayed as largely redundant or possessing the same defining element for Reid. That view is being repeated like a mantra during this campaign season.
Hillary Clinton told a thrilled audience that women govern differently due to their gender and pointed to New Zealand Prime Minister Jacinda Ardern who, after a mass shooting, “showed the heart not only of a leader but of a mother.” Others have made the same statements that they would not only refuse to vote for a man but that women are better leaders. One activist claimed that women are superior to men as leaders for such reasons as they “know how to spend and save money even when money is scarce.”
It seems the reference to gender is only worthy of condemnation when made by or about men, unless it is a negative statement about the flaws of male leaders. Consider a hypothetical situation in which a male politician is asked whether he thinks men govern differently and he said, “Of course. Men are fathers and look at problems differently. They must be strong and leaders.” He would be torn apart and accused of “dog whistling” other sexists in suggesting that women do not have those significant attributes. Women struggled for decades with men who claimed that gender was a determinative criteria and that women did not have the natural talents for leadership. It was a scurrilous lie perpetuated by deep seated prejudice.
Now, some are bringing this criteria back into our politics in reverse. The pledge to not consider any man, regardless of his qualification, shows how disconnected our politics have become from our principles. If Booker or Swalwell were heading a school or business, they would be defendants in an Equal Employment Opportunity Commission action based on such a discriminatory pledge. In Baltimore, a school was sued and a settlement reached after school officials told the head softball coach that they would not renew his contract because of a “preference for female leadership.” The school officials had apparently believed women coached differently.
In California, a restaurant was sued and a settlement reached over its alleged preference for female servers. Stuart Ishimaru, who at the time was acting chairman of the Equal Employment Opportunity Commission, declared, “This case should remind corporate America that employment decisions must be based on merit and ability to do the job, not on gender stereotypes.” The fact is pledges to not consider men are perfectly legal in choosing who will serve as your president or vice president, but such pledges are illegal in choosing who will coach a team or serve a table.
Some will argue that presidents have picked running mates based on their geographical or political appeal for generations. But race and gender are immutable characteristics, and for that reason, they are given the highest level of scrutiny in constitutional law. We have spent decades prosecuting and suing those who applied the same bias in sports, business, education, and indeed government. In other words, these candidates would head a government that would prosecute and sue those who expressed such a preference, let alone an exclusionary policy, based on race or gender.
Many in the media have praised Representative Al Green of Texas for a question he asked seven chief executives testifying before his committee. He asked, “If you believe that your likely successor will be a woman or a person of color, would you kindly extend a hand into the air?” Not one raised his hand and the media erupted with condemnation, despite the fact that federal law bars executives from seeking replacements from a particular race or gender. If a company is following federal law, it is not supposed to have a predetermined expectation on such hiring issues. Its leaders are supposed to give the job to the most qualified candidate.
Most of us celebrate the diversity this campaign season and support the efforts to encourage more women and minorities to seek positions of leadership. But identity politics can easily turn into identity prejudice when gender is being cited as an innate qualification or a threshold exclusion. If we truly want a president and vice president to reflect our nation, let us start with our shared values. The litmus test is leadership.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.