Susan Estrich’s America

To Estrich, power is getting fat paychecks and making decisions that affect large numbers of people. But, to many mothers, power is the ability to come home at a reasonable time and have a family dinner — or not to join the paid workforce at all. CEOs have certain types of power, but they don’t have power over their own schedules. Estrich cites the example of Brenda Barnes, who left a top job at Pepsi because she couldn’t be home for her children’s birthdays.

Estrich admits that legislation has given women legal equality, but argues that unconscious discrimination persists and that our society has “policies and practices that exclude half the population from achieving their full potential in the public world.” She suggests that society identify and change both written and unwritten rules that disadvantage women, rules centered around what Estrich sees as the inherent conflict between the demands of raising a family and achieving professional advancement.

In particular, Estrich suggests opening schools earlier and keeping them open later to give mothers help with child care. But the fate of the average or low-income woman is not her principal concern. Rather, she explores, the missed opportunities — what she terms the lack of power — of women on the highest rungs. She proposes allowing women lawyers, for example, to make partner in their forties, rather than in their childbearing years, and encouraging job-sharing for partnerships and high-level corporate positions.

In order to measure progress, Estrich suggests that every quarter, American corporations be required to report the number of women at the top, just as they report profits. In her own words, “A workplace without women should be suspect and scrutinized accordingly. It’s not a quota, any more than profit projections are. But the determination both to count and demand accountability reflects a judgment that success is both possible and important: you’re expected to succeed, not just try hard. If you fail, you have to explain why, and it better be good.”

Estrich seems unaware that all major employers as well as all employers doing business with the federal government, already have to report this information to the Equal Employment Opportunity Commission (EEOC) on an annual, if not on a quarterly, basis. Despite her assertions to the contrary, major corporations already face what many regard as a quota, in that they can be investigated and prosecuted by the EEOC for employing too few women. The famous cases of Sears in the 1980s and Joe’s Stone Crab restaurant in Miami, Florida, in the 1990s, where the EEOC brought charges of discrimination even though not one woman had complained, show that the system she proposes is alive and well.

Estrich does not discuss either the practically or the cost of her recommendations: She simply assumes that the expense would be absorbed by the corporations. Presumably, if two women shared the CEO position, each would get paid only half the salary and have half the power — not a useful way to give women more of each.

More fundamentally, there are reasons why corporations do not “jobshare” executive positions. Executives are highly compensated, but they also have enormous responsibility to the corporation. While compensation can easily be divided, responsibility for both success and failure cannot be shared. In Estrich’s world, corporations exist not to produce goods and services for consumers and provide returns to shareholders, but to tackle difficult societal problems.

In the real world, equality of opportunity for men and women does not lead to precise equality of outcome, because, as Estrich repeatedly shows, men and women are different. When two groups are given the same job opportunities, and yet outcomes differ, discrimination is not necessarily the story. Another explanation is that the two groups have systematically different preferences, both in terms of the desirability of particular jobs and professions and in terms of hours of work. And that’s precisely what Estrich has proved: When given a shot at the eighty-hour weeks and hectic travel required to get to the top of a major firm or corporation, many women (like many men) just say no.

Consider a few examples among many. In the first chapter, Estrich writes, “In the first five minutes, a female law review president will tell you that she doesn’t want to live like a man or the hard-driving women of my generation. She’s not planning to make partner. Two years, then pregnancy, then who knows? I have never, ever heard a male law review president talk like that.” In the same vein, she declares, “My girlfriends from law school started pulling back five to ten years after we graduated. Biological alarms blaring, they went in-house, of counsel, PTA. All the men I knew who’d gone to firms made partner.”

Similarly, in chapter seven she writes, “Mary is a lawyer in a firm with more than five hundred lawyers. She is a high-powered partner who does transactions, works crazy hours, and has to travel. She has two kids under seven; she keeps a lot of balls in the air. One of the younger female associates came into her office recently and said to her, ‘I don’t want your life.'”

Surprisingly, Estrich also admits that some of the women who reach the top are not as qualified as men. She cities a study showing that fewer women than men had attained leadership positions in corporations before being invited to join the board. And she gives the example of a friend on a corporate board who describes being at a disadvantage because she is one of the few members who has never run a major company.

For that matter, Estrich herself falls short of the standards of scholarship expected from a powerful, tenured law professor. Sex & Power is riddled with inaccuracies. It refers to Clinton’s lawyer as William, instead of Robert, Bennett, confusing two prominent brothers. It mistakenly attributes a well-known study by professor June O’Neill to the Pacific Research Institute. It describes part-time work as barely existing, when about a quarter of working women work part-time. Heidi Miller left Citigroup and went to Priceline.com well before the book went to press. There are no footnotes, and the bibliography contains erroneous citations.

But the book’s central failing is a lack of intellectual integrity. In the final chapter of Sex & Power, while she explains her decision to move to California, where her husband lived, trading her tenured Harvard professorship for a post at the less-prestigious University of Southern California, Estrich confesses, “Work was my escape, my source of satisfaction, my family. But I always knew what I wanted. When the time came for me to make a choice, for me, it was no choice. I knew I wanted children. ‘Knew’ doesn’t describe it. I have never been so certain of anything in my life.”

Susan Estrich, mother of two, knows firsthand the overwhelming attraction of motherhood, yet she calls on young women to make a different choice from hers and instead to fulfill the mission of feminism and finish the revolution. Motherhood, of course, is the reason for the relatively small number of women at the top. As Estrich demonstrates but is too ideologically blinded to admit, human nature is such that this is unlikely to change soon.

Diana Furchtgott-Roth is a resident fellow at the American Enterprise Institute and co-author of The Feminist Dilemma: When Success is Not Enough (AEI Press, forthcoming).