Obama Needs to Pick a Woman

by Brien Jackson

In the wake of the announcement that David Souter would be retiring from the Supreme Court, Mark Halperin loudly declared on his Time hosted blog that, regarding Souter’s replacement, “white men need not apply.” Halperin was probably right on the factual content of the headline. His problem, however, was in assuming that this is a bad thing.

Since the ratification of the Constitution, 110 individuals have sat on the Supreme Court. 2 of them were white females, two of them were black males, 106 of them have been white males. Of the current 9 justices, including Souter, 1 is a white female, one is a black male, 7 of them are white males. All of them are Ivy League graduates who sat on an appellate court prior to their nomination to the Supreme Court. And while Latinos now represent the largest minority group in the United States, there has never been a Hispanic justice on the Court. Similarly, there are no openly gay members of the Court, even though the most prominent Constitutional questions the Court will hear over the next decade will likely revolve around gay rights.

This sort of under representation is hardly unique to the Court, women and minorities hardly have proportional representation in Congress or other avenues of elected office either, but it is indisputably distorting of decisions that come out of the court. It’s hard to imagine, for example, that the Court would have ruled in favor of Goodyear in the infamous Ledbetter case if Sandra Day O’Connor had still been on the bench instead of Justice Alito, even though O’Connor, like Justice Kennedy, was generally favorable to business interests in such statutory questions, for the simple reason that, as a woman herself, O’Connor would simply have a better understanding of the reality of discrimination in the work force, and of the difficulty in fighting it. Her identity, in other words, would serve as a crucial part of her general outlook, the same way a white male’s identity plays a role in the way he views the world. Because, perhaps more than anything other than class, our identity fundamentally shapes the nature of our experiences. A woman, or a minority, has simply seen different aspects of our society, and experienced shared events from a different perspective than a white male.

What’s more, at this point in time, a Court that is 88% male is simply unjustifiable. Women make up 51% of the American population, and 48% of its law school graduates. There are hundreds of women on the federal bench, and thousands on state courts across the country.  Dozens of high profile legal scholars and professors are women, and women have served as the dean of prestigious law schools across the country. Considering that 8 justices have been confirmed to the court since Sandra Day O’Connor became the institution’s first female member, the fact that only one of them has been a woman should be a mark of national shame.

Critics would counter that Obama should nominate the “most qualified candiate,” but this largely misrepresents to pool of potentials. Across the realm of prior experience that has marked previous justices; prominent legal scholars, federal jurists, politicians, etc., there are hundreds of potential nominees for a President to select from, and no way to objectively quantify them. Any standard one could think of is fraught with subjectivity and determination of personal preference. Given that fact, there’s no reason some level of identity shouldn’t be taken into consideration, in seeking a court that will have a reasonable level of diversity in regards to experiences.

Sonia Sotomayor would be only the third woman to ever serve on the Court, as well as its first Hispanic justice. And while she graduated from Yale Law School, growing up in the Bronx is hardly a typical starting point for a Supreme Court justice. With that in mind, Sotomayor would make an excellent addition to the Supreme Court; she would challenge groupthink amongst the white male dominated Court (if Sotomayor does replace Souter, 2/3 of the Court would still be made up of white males), and she certainly has the qualifications for the job.