Equality for Martha Stewart?

The best one can say about the sentencing of Martha Stewart is that it climaxes the rise of women to equality with men in the workforce. She was used as a political fall-guy because she was popular, entrepreneurial and rich -- following a long list of men with the same attributes, from Ken Lay of Enron a week earlier and running back to junk-bond guru Michael Milken years before. She was treated like one of the boys, one who would send a message to all that being rich and successful is grounds for suspicion and for assurance of prosecution if you do not dot the innumerable I's and cross all the tricky T's of the modern welfare state -- to demonstrate to the envy-the-rich constituency that justice is "fair" to all, rich and poor.

But the justice system is anything but fair. Convicting the poor is difficult because they often invoke sympathy from juries of neighbors facing similar life situations. But the rich and famous are easy game, even with their expensive lawyers, for envy is a widespread human failing. So ambitious prosecutors will go to any length to find a juicy target. Household names can even be prosecuted without charging them of an underlying "crime," as was the case with Ms. Stewart. Claiming she lied to investigators about insider securities trading was enough for her to end up in jail -- without being charged with insider trading itself -- especially for a woman who appealed to middle class housewives who take pride in making living more gracious, staying home to "bake cookies," in Hilary Clinton's famous elite putdown. Stewart simply was one more scalp on the wall of powerful, ambitious, federal prosecutors to win the applause of the mob. If lying to the Feds is so bad, why did Bill Clinton not merit a court trial? Prosecuting powerful presidents is much more dangerous than baiting the rich and is almost as rare as jailing the media.

While claiming to follow the rule of law, the Stewart prosecution lacked the most basic requirement: to set clear rules beforehand regarding what would constitute illegal behavior, as has been required from the early philosopher John Locke to moderns like F.A. Hayek. Insider trading is a relatively new and murky charge to begin with (see Andrew Bernstein article below) but prosecutors could not make a case for it that even a sympathetic judge could swallow. Instead, she either did or did not tell the truth to investigators based on the word of a securities employee who might have been prosecuted himself if he did not testify against her. He convinced the jury but Stewart was denied the right to raise the point that the prosecution did not have evidence of an underlying crime. So elite prosecutors and judges bend the law to fit political whim, leading a retreat from the rule of law in the United States that will eventually lead it into the jungle of third-world-like legal chaos.

Elsewhere in the securities world last week, Allison Schieffelin was parlaying her sex into a $54 million Equal Opportunity Commission award, $12 million for herself alone--for so-called sex discrimination against a woman who was earning $1 million per year as a securities underwriter and trader at Morgan Stanley. As in similar suits, her lawyers used institution-wide statistics to show that fewer women than men were top executives in the securities business. The fact that there were 20 percent women in executive positions (up from 14 percent two years before) and there were fewer women in the field generally was claimed irrelevant or even as proof of further discrimination. It did not matter that the head of the fixed income section at Morgan Stanley was a woman or that the CEO of Smith Barney was a woman.

The only thing that mattered was that employment lawyers and feminist groups were pleased with the result -- or thought the settlement should have been even higher. No guilt was proven because the company was forced to settle, as do most companies fearing the bad publicity worse than the loss of cash. Judge Richard Berman made his views obvious during the trial when he accused Morgan Stanley's lawyers of "disagreeing with everything" in the pre-trial hearing, as if it was unfair to present a defense. Settlement seemed the best option from a judge who crowed at the end of his trial that the case was a "watershed" event "in protecting the rights of women on Wall Street"--protecting all of those millionaires. From the little that we know about the case (the records were sealed), the main evidence was that men in the securities office "ordered breast-shaped birthday cakes and hired strippers" -- well-known proof of injury among tough securities traders. An even bigger award of $100 million was made earlier against Smith Barney for having a party room named "Boom Boom" after a play about a bar with dancing girls. Such is how women are oppressed in the securities business these days.

Ms. Schieffelin filed the charge because she had been denied promotion and EEO laws are one of the few means to seek redress, whether for real discrimination, poor performance or whatever--and she was later fired for "gross insubordination." In fact, the overwhelming number of charges is dismissed as obviously not discrimination but attempts to override normal personnel decisions. Still, the large EEO community could not justify its existence without some successful suits and big, rich firms again make the best targets. Juries sympathize with almost anyone who files against them and the executives fear nothing more than being thought discriminatory and want to settle at any cost. Did I forget to mention that Schieffelin won her millions for sex discrimination even though she was fired by a woman supervisor?

The military is different. Even feminists reluctantly concede it is an exemplar of employment equality, other than forbidding women in combat positions. The war in Iraq has shown the incredible advancement of women to influential positions in the very close support positions of military police and intelligence. Indeed, women held the top positions in both fields in that war zone, even skirting close to the Congressional restrictions on female combat deployment. For example, Army public relations showcased Brig. Gen. Janis Karpinski, the top military police officer in Iraq, as "the first woman to lead combat troops" in U.S. history. Indeed, the Abu Ghraib prison scandal revealed women to be serving in all of the critical positions.

The first pictures that so shocked the nation highlighted two low-ranking women military police guards pointing to the private parts of nude male prisoners. Not receiving as much initial attention was the fact that Gen. Karpinsky was their boss, most media attention being directed to a subordinate male colonel. Almost no attention has been directed to the fact that women in military intelligence played top roles too. It was the desire for better intelligence, indeed, that led to personnel plans to remove Gen. Karpinski, who was deemed inadequate for the position, and to the scandal itself. Reluctant to fire a woman deemed the first to lead combat troops, the decision was made to give military intelligence de facto control over the prison and leave Karpinski nominally in place. This put Maj. Gen. Barbara Fast, the leading intelligence officer in Iraq, actually in charge of the prisoners at the time of the abuses. Indeed, the tougher Guantanamo Bay interrogation techniques later transferred to Abu Ghraib and questioned as incompatible with the Geneva Convention -- including 20-hour interrogations, light and sound assaults, the use of women jailors to taunt nude male prisoners, exposure to cold weather and water, and so-called "stress positions" -- were first declared legal by the Guantanamo legal council, Lt. Col. Diane E. Beaver.

With all of the equality, however, there were anomalies. There was the unwillingness to fire Gen. Karpinski, for example. The reluctance of military officers to do so is understandable since more male military careers have been ended by EEO complaints than battlefield errors in recent years. The media hesitancy to highlight the strong female role is less obvious. As was first reported here, the Washington Post did not identify the soldiers in the critical first pictures as women, or bring attention to the fact that Karpinski was a woman. More surprisingly, the higher-ranking and more important Maj. Gen. Fast has only been identified a few times publicly and, then, only buried deep within newspaper stories and never on television.

So, is the feminist, Naomi Wolf, correct that the "masculine empire" is dead and now women are in the top positions, or very near to them? Women can be treated equally in court prosecutions, as with Martha Stewart, but also can be given multi-million dollar awards for claimed work-place discrimination by other women, as with Allison Schieffelin, or be promoted to top positions in formerly male fields in the military and be given additional considerations, as was Janet Karpinski initially, or even be granted protection from media scrutiny, as with Barbara Fast. To escape the all-powerful critical eye of the media, now that is real power. Yet, all of these examples concern a relatively few, elite women. The position of the majority of women today is more complex.

As Prof. Steven E. Rhoads demonstrates in his new book, "Taking Sex Differences Seriously," while almost all men seem similar in valuing aggressiveness, competitiveness, and dominance, women seem to divide into two camps. A majority of women prefer marriage, nest building and children to work and power and only a minority favor power and position. Even most high-powered women in candid surveys reject role reversal and prefer a partner superior in earnings, status and power. Indeed, most women believe that feminism has made it harder to combine jobs and family and has made it more difficult to have a successful marriage.

As early as 1942, the pioneering feminist Virginia Woolf concluded that American women had achieved essential political equality with men. What were holding women back from social and economic equality were "phantoms" in their own minds that they, themselves, had to overcome. The most oppressive of these was the "angel in the house" ideal of the sacrificing mother and wife rather than the free and independent (and even selfish) woman preached by her feminism. More social and economic redoubts have fallen over the past half-century and most American women have left the house at least for part of the day to join the worlds of power and competition.

But there has been a cost for most women, with a majority regretting that children and marriage have become more threatened as a result of the gains-for most women have refused to swap the angel for the selfish power role that presumably would grant them true feminist equality, freedom and happiness. Even for the most powerful and successful who have managed to overcome the phantoms, like Martha Stewart, these have simply achieved the equality of workplace achievement that makes them the target of popular envy, just like the men.

By Donald Devine, Editor.