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Woman or Minority Should Be Next Supreme Court Justice

Friday, 30 September 2005 12:00 AM

Could it be a woman yet?


Do you really need judicial experience to be a justice?

Not necessarily.

How does Justice Miers sound?

Who?? Harriet Miers ...

Earlier this week, President Bush was quoted as saying that "diversity is one of the strengths of the country," in answer to a question as to how close he was to picking a replacement for Justice Sandra Day O'Connor. The comment sent everyone scurrying, again, to make lists of women and Hispanics who might be on George W. Bush's short list for the court. Former Bush counsel and Texas Bar President Miers is now topping many lists.

Why does it matter so much? The truth is that most Americans couldn't recognize Sandra Day O'Connor if she ran into them on a street corner. Supreme Court justices aren't exactly household names, or recognizable celebrities.

Justice Stevens told me that when he first registered to vote in Virginia after being named to the court, the clerk asked his profession. "Justice," he replied. "Isn't that nice," she said to him. "We had a fellow in here last week who said his job was peace."

But if anonymity is their lot once confirmed, still their identity in terms of race and gender sends a powerful message that goes beyond pure symbolism. The fact that so many of the key points of contention in the Senate hearings relate to issues to which women and minorities bring unique experiences regarding the application of law to facts is what matters.

The life of the law, Oliver Wendell Holmes famously said, is not logic but experience. Whether the question is abortion and reproductive freedom, or civil rights and affirmative action, or the matter of profiling and the use of racial characteristics as a basis for decision-making, there is no question that women and minorities bring different experience to the decision-making process.

John Roberts did a brilliant job for himself as a witness, but his analogy of a justice to a baseball umpire wasn't fair. An ump does what a camera could – a dozen umps in the same spot should reach the same conclusion. The Supreme Court decides cases only where lower courts disagree. They are right not because there is one right answer, but usually because there isn't, which is why the court votes, and its results become "right" for that reason.

To say you have no agenda makes no sense. The question is which agenda, which set of values, and experiences, you bring to the task of deciding questions that could go both ways. In that regard, gender and race surely shape one's perspective, as the president's comments reflect, in law as in politics.

If the president nominates a hardcore white male conservative, all bets are off. Anyone who voted against Roberts will immediately say: This guy is worse. If I was against Roberts, I have to be against this guy.

Any Democrat who voted for Roberts has a good reason to oppose this guy. He can say: Look how reasonable I was last time, but this guy goes over the line. Roberts, yes. Attila the Hun, no.

Democrats would love a fight. It's a chance to pile on about all the president's weaknesses: to tie together his over-readiness to make the right wing happy, to stay up and fly back for Terri Schiavo, while ignoring the needs of thousands of poor, very much alive Americans; to cater to the right wing, while ignoring everyone else; to play politics with the courts and judges, while ignoring the rest of the country.

On the other hand, if he nominates a woman or a minority with a record or stance closer to Roberts, what can they say? No judicial experience? Earl Warren didn't have judicial experience, either, and he did just fine.



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Could it be a woman yet? Yes. Do you really need judicial experience to be a justice? Not necessarily. How does Justice Miers sound? Who?? Harriet Miers ... Earlier this week, President Bush was quoted as saying that "diversity is one of the...
Friday, 30 September 2005 12:00 AM
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