A quick thought on the Supreme Court situation

[catsittingstill]

Women are slightly over half the population.  So women should be slightly over half the Supreme Court.  There are nine Supreme Court judges, so that means five of them should be women.

The most we've ever had is two.  George W. Bush left us with only one.  Of course the next Supreme Court judge should be a woman.  The next four Supreme Court judges should be women.  Unless Ruth Bader Ginsberg retires in that time, in which case the next five Supreme Court judges should be women.

Duh.

And I'm being moderate and patient, here.  If I was really going for true equality and fairness, the Supreme Court should have only women on it for the next one hundred and ninety years, at which point a single male would be allowed to serve and twelve years later, a second male would be allowed to serve, with the court only opening up to allow a total of four males sixteen years after that.

Comments

[nojay.livejournal.com]

To be fair, President Bush did try to appoint a woman Justice but the patriarchal Establishment successfully blocked his desires and he reluctantly had to forgo his liberal principles and choose from the all-male second-best candidate list. Bummer that.

[catsittingstill.livejournal.com]

I can well believe she was blocked partly because of her gender. I had the impression there were some real questions regarding whether she was qualified, however.

[pocketnaomi.livejournal.com]

Among the legal community, there was no question about it. She wasn't. There are many who are, but few of them are Republicans, let alone the kind of vapidly loyal Republicans Bush demanded from anyone he hired. It was the same sort of problem which landed us with Clarence Thomas. Finding a first-rate black constitutional law scholar wasn't difficult, but finding a first-rate black, passionately conservative, constitutional law scholar couldn't be done, so we ended up with third-rate.

[pocketnaomi.livejournal.com]

I'm a con law groupie, which means I'm going to have to disagree. At least temporarily.

Women are slightly over half the population of the United States. They aren't yet slightly over half the population of the superstar constitutional lawyers in the United States. They're more of those than they used to be, and I hope it will soon get to the point where they are proportionately represented in that group; however, I'm not willing to confine the search to only that smallish subsection of those I consider competent for the job who happen to be women. There are too few really good con law judges in the first place; we need to be able to take the best of them, whomever they may be demographically.

I trust Obama as a con law scholar himself; if he weren't currently already employed, he'd be capable of being a damn fine Supreme Court justice himself. I'd like him to look first among the women in the field, but ultimately go with whatever individual's got the best skills for an insanely difficult job, regardless of that person's sexual equipment. And then I'd like to see some changes at the lower levels of judicial appointments and law school hiring, to put more women in a position to be top constitutional judges.

[catsittingstill.livejournal.com]

You are, of course, entitled to your opinion.

My opinion is that women ought to be looked at first for the next five Supreme Court positions that come open. If you honestly can't find any good women prospects (a question that current Republican leaders should get no voice in, in my opinion, as they are incapable of viewing a woman candidate dispassionately), *then* we can consider going with a suitable male. If we wind up with one or more males in the next five candidates, we should, of course, continue to consider women first for every single Supreme Court position after that until we have five woman judges.

Because the current boys-locker-room atmosphere in the Supreme Court is profoundly disturbing to someone who is not part of the currently privileged gender, and I don't think it will be fixed by anything less than this proto-equality I have suggested.

[pocketnaomi.livejournal.com]

I'd happily accept your proposal so long as "good prospects" are defined by a pretty astronomical standard. I've been studying the Supreme Court for twenty years and can count on my fingers the number of justices I consider to have been truly good at their job between about 1955 and the present (I haven't done enough research from before that to have an opinion). I don't want to appoint justices who are merely up to the standard of those who have been on the Court so far, I want to appoint justices up to the standard of the great ones who have been on the Court so far. Preferably, yes, I would choose women until there's an appropriate number of them... so long as I can find that many women who are likely to be among the most brilliant justices in history. If I can't, I'm going to look to see if I can find men who could be.

[howeird]

How to lie with statistics. The supreme court is not chosen from the general population, but from people who are actually qualified to make decisions at a technical legal level. Okay, Clarence slipped through the cracks somehow but he at least owned the appropriate pieces of paper.

One of the sad things about US history and patriarchal societies in general is few women attempt to become judges, and even fewer stick it out long enough to make a name for themselves at the highest levels. So the pool of qualified individuals is still heavily weighted toward males.

And just because someone is female does not automatically make her someone whose decisions you would agree with.

But having said that, I agree Obama ought to make a special effort to identify qualified women to take Souter's place. Before she was Secretarified, Hillary was being pundited as a possible court nominee.

Do you have anyone particular in mind?

I wonder how Judge Judy would do in a court where she had to share power with all those other justices?

[catsittingstill.livejournal.com]

Thomas, Scalia and Alito slipped through the cracks, yes, and I have my doubts about Roberts.

True that female does not equal decisions I would agree with. Palin pops to mind. But majority female would at least equal a Supreme Court that doesn't stand around talking about giving each other wedgies. A modicum of professional behavior while on duty does not strike me as too much to ask.

If you agree that a special effort should be made to find a qualified woman to take Souter's place, why not agree that a special effort should be made to find a qualified woman to take every place that becomes available until we have five women on the court? I don't understand why it would be an okay strategy for one position but not for five.

I do not have anyone particular in mind, but from what I last read in the paper there are at least six leading women candidates, so there doesn't seem to be any shortage.

[catsittingstill.livejournal.com]

There is such a thing as making the perfect the enemy of the good, and remember that when the Republicans are in power, they won't be looking for either perfect, or good, or female judges. So you've got to ask yourself--will a really stellar male judge do as much good as a good woman judge once the Repubs are packing the court with right-wing males again?

[pocketnaomi.livejournal.com]

Roberts is a first-class lawyer, even if I haven't been happy with him as a judge. Scalia used to be a first-class lawyer before his ideology drove him outright wacko. Thomas just slipped through the cracks, and I don't know enough about Alito's pre-Court service to have an informed opinion.

I'd like to see Elena Kagan at least vetted, though I don't know what I'd find if I did take a serious look at her scholarship. But she seems to have her head screwed on straight. She's probably a little too much of a novice at that level, though -- she might be better for the next opening, after a few years as solicitor general.

[howeird]

If you agree that a special effort should be made to find a qualified woman to take Souter's place, why not agree that a special effort should be made to find a qualified woman to take every place that becomes available until we have five women on the court?
Because there are not nearly as many women qualified to be Supes as there are men. By your logic we need to have at least one illiterate person on the court, because 10% of our nation is illiterate.

Also, I suspect some of the back-story behind your wanting half the court to be women is you hold the belief that the Old Boy Network is what has kept women out of the higher levels of jurisprudence, and you want to see that ceiling broken.

From what I have observed, this has not been true for a generation, maybe two. Michelle Obama is a good example of my point - she chose to be #2 and to be a mommy and wife, despite having overcome several layers of prejudice to pass the bar. As long as women continue to make this choice, we'll have too few women in the Superme Court pool.

[thnidu.livejournal.com]

As they've said... Women are vastly underrepresented on the Court, but this argument doesn't work. It puts me in mind of the Nixon team's reply to accusations that Spiro Agnew, his vice nominee, was mediocre: "It's time to give the mediocre people a chance."

[catsittingstill.livejournal.com]

"It's time to give the mediocre people a chance."

When did you start thinking that women are mediocre?

Certainly, if you believe women are not competent, then it makes perfect sense that you don't want women as Supreme Court Justices.

OMG NO!!!

[thnidu.livejournal.com]

God, no, nothing like that!!!!!!! That is ABSOLUTELY NOT!!!! what I meant to say or imply, or anything like what I think or believe. No, no, no, no, no.

In saying "Women are vastly underrepresented on the Court", I was and am agreeing with you that there are too few women on the Supreme Court.

In saying "this argument doesn't work" (emphasis added), I was talking only about the reasoning that goes "Xs are a certain proportion of the population; therefore, Xs should be proportionally represented in public office." The line from the Nix/Ag campaign is a clear example of why the logic fails.

[dan-ad-nauseam.livejournal.com]

We are, for the first time, developing a sufficiently large pool of qualified women and people of color to make the Court reasonably representative. I'd also like to see better representation, in order to promote a better understanding of the issues on the Court.

That said, I don't think that five for the sake of five is a good idea.

[randwolf.livejournal.com]

What, you don't think Michele Bachman is a good choice?

[catsittingstill.livejournal.com]

(choke)

I may have given the wrong impression. I am arguing that being female should be a *necessary* qualification for five of the SCJs. I never intended to suggest it would be *sufficient*.

[catsittingstill.livejournal.com]

If better representation of woman does not equal five, what would it equal, in your opinion? Is there some number you like better, or do you think it should be some range of numbers, or do you think it should be simply the best of the available pool at the time without regard to gender?

If the latter, there are (as I recall) some interesting studies on why the top chess champions are male--it seems that the numbers come out as expected if ability is random with respect to gender but one group is present in higher numbers. Lawyers and judges are still more likely to be male, suggesting that SCJs will almost always be male if my memories of these studies, and the studies themselves, are correct.

I'd also like to see better representation, in order to promote a better understanding of the issues on the Court.

Me too.

[dan-ad-nauseam.livejournal.com]

Anywhere from three to seven.

[mindstalk.livejournal.com]

Not radical enough!
Don't wait for justice: expand the Court to 15, and all six "leading candidate" women can be appointed, plus another one. The lesbian and the Hispanic etc.

[catsittingstill.livejournal.com]

:-) I kind of like this idea, but hesitated to propose it. I do see some practical problems with it. It would require a Constitutional amendment, and those are not easy to push though, for one thing.

Another thing that concerns me is that someday the Republicans may be in power again. Almost certainly *will* be in power again, if we're talking about a long enough span of time. Hopefully they'll be sane again by then, but do we want to take the chance? Do we really want to leave the option of doing this lying around where they could cut an innocent bystander with it?

Besides, 8 men and 7 women, while approaching parity, isn't really going far enough; it would have to be 8 men and 9 women for a total of 17, at least to achieve my proposal of having slightly more women than men on the court.

It's a tempting thought, though.

true equality - careful what you ask for

[durconnell.livejournal.com]

“And I'm being moderate and patient, here. If I was really going for true equality and fairness, the Supreme Court should have only women on it for the next one hundred and ninety years, at which point a single male would be allowed to serve and twelve years later, a second male would be allowed to serve, with the court only opening up to allow a total of four males sixteen years after that.”

I realize that you are not going for "true equality and fairness", but I thought I might clarify why I think it would be a bad idea.

I definitely agree that the next Supreme Court justice should be a woman, and probably a Hispanic woman, assuming we can find a stellar candidate (I agree with pocketnaomi that quality should trump gender). That said we can only try to seek equality going forward. While pointing to history and saying if we were seeking true equality all Supreme Court justices should be women, why stop there? How about requiring the US military to be all female until over a million women have been killed in action? Maybe white people should be slaves for black people for 200 or so years? Heck, perhaps Native Americans should be allowed to kill 90% of the non-Native American population for a few hundred years?

Yes these are exaggerations, but I get nervous when we talk about oppressing the descendents of oppressors to obtain justice. Now, that said, I don’t have a problem with affirmative action, because I think there still is a problem with structural discrimination in this country. I look forward to the day when we can and do get rid of it because it is no longer needed. One sign of that will be either the elimination of the legacy system, or legacies producing as many non-white legacy admissions as their proportion in the general population. Another would be seeing resume studies showing that otherwise identical resumes for Mary Smith and Latisha Jones get similar numbers of call backs. Hint, right now black names get significantly fewer callbacks.

As long as the discrimination exists, I will support reasonable measures to compensate for it, even if the measures are somewhat unjust. However, that is compensation for current problems, not past wrongs. I don't really think we can fix a historical injustice by committing another injustice aimed at the descendents of the guilty. We can only try to avoid committing future injustices.

Re: true equality - Note that I am not asking for it.

[catsittingstill.livejournal.com]

I get nervous when we talk about oppressing the descendents of oppressors to obtain justice

This is rather a long comment to address something I specifically said I wasn't proposing. It's good to see, however, that you agree with me that women have been historically oppressed, and that part of relieving that oppression, which is probably going to take a long time, is having women present on the Supreme Court in a proportion similar to their number in the population.

You have nothing to worry about, and you're on my side in this. Great!

It is Sotomayor

[randwolf.livejournal.com]

I've got a preliminary croak up. She has a lot of virtues. On the other hand, she seems to have been raised conservative Catholic and I am very much concerned that she is personally anti-choice, and perhaps anti-gay as well.

(When I wrote my original notes on this a few weeks ago, I didn't know that the concern would come up so immediately!)

[randwolf.livejournal.com]

Further notes at the NYT, here. Nothing about her religion. C'mon, folks, it's important. We probably need to stop referring to her as "Latina," too. She calls herself "Nyorican"--Puerto Rican parents, grew up in NYC--and Puerto Rican culture is very different from Mexican. About the most striking characteristic from her accounts of herself, as well as Scotusblog's review of her cases, is her genuine sympathy for the working poor. Unlike Clarence Thomas, who comes from a working poor background but aligns his judicial philosophy with wealth, she has chosen to align herself herself with poverty.