Supreme Court Justice Ruth Bader Ginsburg arrives for President Obama's address to a joint session of Congress on Feb. 24.
Following Supreme Court Justice David Souter's retirement announcement earlier this month, court watchers were immediately unified on one point: his successor would likely be female.Why the emphasis on gender? After all, there are no Asians, Hispanics or Muslims, male or female, on the court. But the lack of women is widely perceived as the gap that most needs to be addressed.
On the Supreme Court, the first female justice, Sandra Day O'Connor, was the lone woman for 12 years before President Bill Clinton nominated Ruth Bader Ginsburg in 1993. And when Justice O'Connor retired from the court in 2006, the court again became a one-woman institution, as Samuel Alito took Justice O'Connor's seat. But those pushing for a female nominee say the need on the court isn't only a matter of perception.
Some contend that the court, and the country, benefits from people with varying experiences and viewpoints.
I wholeheartedly agree. A nominee not a judge, not a lawyer, would be great. Not going to happen, but it is a dream worth having.
Justice Ginsburg has made that point herself. In an interview with USA Today last week, she discussed the attitude of her colleagues during recent arguments in Safford Unified School District No. 1 v. Redding, in which school officials looking for pain medicine strip-searched a 13-year-old girl. She said the male justices didn't understand what a sensitive age that is for young females. "They have never been a 13-year-old girl."
Some experts, particularly conservatives, say such statements demonstrate the danger in making gender, or race, the main criteria for picking a nominee. It risks that justices will come to see themselves as needing to represent the views of a particular group, rather than acting as an umpire who remains neutral about who wins and loses, as Chief Justice John Roberts has described the role.
Gender or race should not be criteria, say conservatives, but they do insist on ideology being a criterion. Insist. And then justices such as Roberts make conservatism the view that needs be applied. For Roberts to insist he is neutral is nonsense, at best, and disingenuous.
"When you make appointments based on particular ascriptive criteria, the justice sooner or later could say, 'Oh, OK, I better reflect the desires of the constituency to which I belong," says Stephen Presser, a legal historian at Northwestern University. "You have to be very careful of having the court be a representative body and thinking about it in political terms, because that weakens the rule of law."
No. It is not that a justice says, "Oh, I'd better think as a man," or as a woman, but that it is part of the thought process. Justice Ginsburg doesn't need to remind herself she's a woman, just as, presumably, Justice Roberts doesn't have to remind himself he is a man.
And the court is political: note Gore v. Bush, as an example.
Jay T. Jorgensen, a partner at Sidley Austin LLP who previously clerked for Justice Alito and former Chief Justice William Rehnquist, says he saw first-hand how life experience can inform the justices' discussion. In 2000, the court heard a case called Public Land Council v. Babbitt, which centered on grazing rights. Justice O'Connor, who had been raised on a ranch, was able to elevate the discourse due to her knowledge of the industry. Yet, Mr. Jorgensen makes the point that her life experience didn't predetermine her vote. The court ruled 9-0 against the ranchers.
And Jorgensen clerked for conservatives.
Review some of the names being talked about as possibilities for the next Supreme Court justice.