Women and the High Court

The first woman on the Supreme Court was Sandra Day O’Connor. Even her name conjures us back to a different day, when women had their traditional place in the community and politics wasn’t as partisan and acerbic as it is now. That was 1980. A woman born in 1931 became our first female Justice.

I remember thinking the flood-gates had opened and that female justices would, from then on, pour onto the high court. But it took more than a decade for the next woman to be appointed to the Supreme Court. In 1993 Justice Ruth Bader Ginsberg became the second woman to take her seat on the highest court in the land.

Since then, the court has benefitted from the insights of a woman, and the texture that their unique experiences bring to the adjudication process. When George W. Bush got two chances to appoint Justices he chose, well… men. So much for the flood-gates. Once again, the court looked like an “old boys” club, but for one exception.

It was not until 2009 that Barak Obama got a chance to nominate a justice to the Supreme Court. He thankfully took the opportunity to put a woman back in by nominating Sonia Sotomayor.  During an uphill battle to get confirmed, she had to pledge that she would not let the fact that she is female, Hispanic and imbued with all the richness that comes from having been disadvantaged and having to work hard to surmount the obstacles inherently in her way, get “in the way” of being a Supreme Court Justice. Excuse me, isn’t that why we want her there in the first place?  How come no Senator ever asked Ch. Justice Roberts to discount the fact that he was male and white and privileged? Similarly, how come no one asked Justice Thomas to rule notwithstanding the fact that he was black, male and accused of sexual harassment in the workplace (who remembers Anita Hill) when he was being confirmed?

Experience, no matter the breadth, is what makes a person who they are. It is also what makes a Justice qualified to adjudicate the most weighty issues that are presented in our legal system. These are the rulings that can change our lives as American Citizens. Of course we want diversity on the court. We need the Justices to bring to the fore their experiences as common people and not just as legal scholars, in order to shape our laws in a way that reflects the people of our nation – not just the composition of our founding fathers.

Today, President Obama is faced with making another decision for a Supreme Court nominee. The fiber-optic lanes are abuzz with speculation as to who he will pick – and whether the pick can be nominated in the present-day aserbicism that is Washington DC and the confirmation process. On the famed short-list are one man, Sidney Thomas, and a lot of women. Kudoz Mr. “O”.

The women being discussed as possible nominees include:  Diane Wood (7th Circuit Ct. Judge), Elena Kagan (former Harvard Law School Dean), Merrick Garland (D.C. Circuit Ct. Judge), Martha Minow (Current Harvard Law Dean), Elizabeth Warren (head of the Congressional Oversight committee), and last but not least – the bombshell confirmation if it were to happen – Secretary of State Hillary Rodham Clinton.

Pundits are blue-faced observing that none but two of these women have any judicial experience. Yes, so refreshingly true.

My former Law School professor and former US Assistant AG: Douglas Kmiec noted on CNN that “Stevens’ genteel, gentlemanly way has passed from our time”. Well, I wish it hadn’t. Perhaps the time for gentlemanly confirmation hearings could be ushered back in by a female nominee that had no life-long record of adjudication for the senate judiciary comittee members to scrutinize and criticize?

I think it would be welcomed change for the Obama administration to expand the list of possible nominees to include more non-judges and people with different backgrounds and from other regions of the country. Yesterday, when the buzz began on potential nominees, Bill Mears of CNN observed that all the Justices, but the retiring Justice Stevens, were ivy league law school graduates. I wonder if that’s a common denominator the nation could do without? We don’t want the Supreme court to be composed of a homogeneous body of nine justices who are always in sync. We need them to vigorously debate the issues that will color our lives for generations to come, and to draw their decision-making criteria from a plethora of different experiences that have brought them to where they are today.

On a lighter note: for those of you who would love to see Hillary Clinton on the High court, or would hate to, the White House said yesterday that President Obama “thinks Secretary Clinton is doing an excellent job as secretary of state and wants her to remain in that position.” So no worries.

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2 responses to “Women and the High Court

  1. 110 justices and only 2 ….ok now 3 women since its inception. Pat Robertson made a big stink about that on Rachel Maddow, cried bloody murder and reverse discrimination in the face of Sotomayor’s confirmation. Boo Hoo – how long can the white male endure the oppression of the …. oppressed ? Anyway – fast forward to 2010, another figure in a black cape falls off the judicial table and the whole discussion starts again.
    But excuse me – in the interest of diversity did I hear you wish for a “non-judge” to mix into the pot? Would the enlightened sisterhood really sleep better at night knowing that the highest court of the land is more rainbow colored at the expense of judicial experience?
    Loathe to echo anything that has Pat Robertson as a caption, I have to agree that to have finally arrived at women’s equality is to be blind like lady justice herself. Green, blue white or female, may the best man …uhm… person win. In any case, Hillary has her hands full bringing peace to the Middle East and Elizabeth Warren, notwithstanding the fine judge she would make, is sorely needed to fight the David vs Goliath battle against Wall Street. I for one would love to keep them both exactly where they are.

    • I do think that its not necessary for Supreme Court Justices to be ivy league law school graduates. There are many legal minds, in fact curious and legally versed minds, who did not graduate from ivy league law schools. That factor should not be a requisite criteria to become a sup ct. justice. Similarly, judging need not be a pre-requisite either. The supremem court weighs constitutional issues – and their well thought out decisions guide the nation forward and chart the course that we will set on. Their role is different from lower court judges who adjudicate. Justices of the supreme court need to be versed in the law, but more than experienced judges they need to be experienced thinkers. So yes, I do think our nation could do well with non-ivy league, non former judge, justices; and great justices can come without those qualities.

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