Gender and the Supreme Court “Vacancy”

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Last week, Dahlia Lithwick wrote an intriguing article in Slate magazine regarding the frequently heard argument that President Obama’s first nominee to the Court should be a woman.   Lithwick quotes Justices Ginsberg and O’Connor lamenting the  dearth of women on the Court and also examines the arguments concerning whether women are different  jurists than men.

I find this debate fascinating, and I do believe – and the Court has ruled  – that diversity matters in American discourse.   However, as we value and encourage diversity, we must avoid essentialism.   So, for me, the question is not whether a woman should be appointed to the Court, but rather what type of woman she will be.

This question is critical.   All women do not think the same way, share the same opinions, nor agree on what it means to be a woman in America in the early 21st century.     It would be folly to treat women like a deck of cards – “pick a woman, any woman” – and hope that the desired result –  that being concern for women  – will be obtained based on the presence of two X chromosomes.   When politically disenfranchised groups are placed in prominent positions, this danger is ever present.    Clarence Thomas and Thurgood Marshall are both African American males, but their judicial philosophies are entirely opposite.     Sarah Palin and Hillary Clinton share little in common politically despite sharing a race and gender.   Thus, in the desire to see a woman on the Court we must be clear on what  is desired.

I believe what most people are saying when they say “we need a female justice” is that there should be someone on the Court who cares about women’s rights and can effectively articulate those positions.   But must this person necessarily be a woman?   Don’t get me wrong – there are certain things that only women can know.   (I believe that is why both Justices Ginsberg and O’Connor dissented in the Nguyen case when the majority declared that birth automatically bonds a mother and child.   Those women knew better.)   However, there are men out there that can understand these concepts.   Justice Blackmun – a man – was responsible for Roe and defended that decision, as well as women’s reproductive rights in other ways during his tenure on the Court.   Given the choice between a Justice Blackmun and a justice who cares little about the myriad problems women face but who happens to be a woman –  most women’s rights advocates would probably  take the guy.

In sum, I beleive, as always, that judges care about the law over all else.   However, it is also true that in any human group, people bring their past and personal philopophies to bear.     Let those be the standards to judge the candidates rather than gender.

–Nareissa L. Smith

Cross-posted from the   Constitutional Law Prof Blog

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