June 27, 2005

If Justice O'Connor retires, must her successor be a woman?

"Sources report Rehnquist is not ready to resign and that O'Connor is readying the way for a return to Arizona with her invalid husband." So reports Robert Novak today.

No woman has ever vacated a seat on the Supreme Court. Every woman who has ever served on the Supreme Court is currently on the Supreme Court. We have yet to discover the extent of the political feeling that a woman must be replaced by a woman.

Novak writes:
While Bush would consider replacing one of the court's two women with its first Hispanic justice, neither Roberts nor Luttig for O'Connor would be politically correct.

Accordingly, White House judge-hunters are looking for a woman. They have interviewed Appellate Judge Edith Brown Clement (5th Circuit, New Orleans), a conservative who flies under the radar. She was confirmed as a Louisiana district judge in 1991, seven weeks after her nomination by the first President Bush, and was confirmed as an appellate judge in 2001, two and a half months after George W. Bush named her.

Clement would be subject to far more scrutiny as a Supreme Court nominee. So would any other conservative named by Bush, though Democrats may have exhausted scrutinizing Gonzales.
It's funny that members of minority groups should be thought to be exchangeable with women. I suppose there's an idea that it isn't right for the Court to consist almost entirely of white men, and the one thing you cannot do is move any closer to that extreme. But if we're concerned about representation, women are more than fifty percent of the population, and there are some important legal issues that have a special impact on women. For only one ninth of the Court to be female, after so many years of two ninths, should disturb us, unless we cast the notion of representation aside altogether. Equating a Hispanic man with a woman should be regarded as kooky. But it is really a smokescreen. Look, I'm doing a first! Sorry, that irks me.

Either replace a woman with a woman or don't talk about representing groups on the Court.


Slocum said...

I imagine that Bush will lean toward female and minority candidates because he will be able to get away with more conservative views in a female or minority candidate (or, especially, a female AND minority candidate) than he would with a white male candidate (who would 'naturally' be subject to heightened scrutiny).

The obvious irony is that those who brought a focus on identity politics to the process are now likely to get a candidate less amenable to their views than they would have otherwise.

HaloJonesFan said...

I know what the phrase means, but the statement that "...O'Connor is readying the way for a return to Arizona with her invalid husband..." made me snicker. Error 42: Invalid Husband. Remove or replace with valid husband to continue.

dax said...

How will Justice O'Connor survive not being on the A-List of the Washington DC dinner circuit???
It's well known that she's quite the social butterfly.
Arizona! Oh, the horror!

Sloanasaurus said...

How about Janice Rodgers Brown or Priscella Owen. Both of them pass the extraordinary circumstances test.

Bush should name a politically based conservative to the court to make sure there are no Justice Souter suprises. The court has not awed us with their scholarship or intelligence in recent years. Nowdays it is just another raw political body. Just as Earl Warren was a previous governor, Bush should name Orin Hatch or John Corynin to the court.

No matter who Bush names to the court no one will have the type of partisan credentials that Ruth Bader Ginsburg had (ACLU etc).

Mycin said...

Ah, identity politics. What fun.

To quote a wise blogger:

"But ordinary people might tune politics out, so they just can't resist prodding and stimulating us with those symbolic things. Somehow people get so fired up about symbols."

headzero said...

I thought it was all about putting the most qualified person in the position, not if they were man or woman, white, black red or yellow.

What happened to getting somewhere in life because of what you have accomplished, instead of what your genetics are?

Kathleen B. said...

agreed Slocum - that is ironic.

and I think most people can get on board with the idea that merit should prevail. and overall getting away from "representative groups" should be the ideal. I would personally hesitate Headzero, to ask "what happened to", as if it used to be that way. Do you think all the white baseball players were all better than the Negro League players? it was just after Jackie Robinson that suddenly black players became so talented? When Justice O'Connor graduated from law school she couldn't even get a job as a lawyer - she was offered positions as a legal secretary. So let's not pretend that things used to be based on merit, and now have become perverted by identity politics.

Jacob said...

The most qualified person for the Supreme Court would be a Posner or an Easterbrook, and we know that's never going to happen.

FYI- In my country, Canada, there are four women on the 9 person Supreme Court (including the Chief Justice). The Court has to have 3 members from the French speaking province of Quebec but that's partially because Quebec operates on civil, as opposed to common, law. So it's not really an identity politics thing, one of the Quebec justices is an Anglophone (one of the non-Quebecois justices is a Ontarian francophone).