Why the court nominee must be a woman

A truly balanced perspective requires more than one female justice at a time.

By Ruth Marcus

Last update: May 13, 2009 - 8:12 PM

WASHINGTON - "It contributes to the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers."

That was Ruth Bader Ginsburg, standing by President Bill Clinton's side, commenting on her just-announced Supreme Court nomination. I was in the Rose Garden on that sparkling June day more than 15 years ago, and I remember being struck by the force of Ginsburg's point: that breaking the gender barrier is not a one-time, been-there-done-that event. It is, instead, a constant evolution toward a time of unremarkable equality, when being the only woman -- on the bench, around the conference table, in the room -- feels more strange than it does familiar.

We're not there yet. Who would have thought that, with the retirement of Sandra Day O'Connor and the serial confirmations of three white men after Ginsburg joined the court, the justice would find herself another one-at-a-time performer?

Which is why it's so essential that President Obama's nominee to replace David Souter be a woman.

I confess to a certain queasiness in writing that sentence, and in stating the "no men need apply" litmus test so categorically. It's more comfortable -- if not entirely straightforward -- to cloak this view in mushy language about the value of diversity of backgrounds and life experiences and perspectives. That's all true, for reasons I'll get to later. But the stark fact is that having one female voice out of nine is not consistent with women's being half the talent pool -- actually, Ginsburg said "at least half" -- in our society.

I'd feel differently if I thought we were trading quality for diversity -- to put it bluntly, if I thought we were looking at Harriet Miers redux. President Bush's choice of his underqualified White House counsel to replace O'Connor was infuriating precisely because, rather than adding to the sense that it is the new normal to have more than one woman on the court, it suggested that presidents have to sacrifice to scrounge up female nominees.

But the welcome fact is that it would be no stretch for Obama -- as it would have been no stretch for Bush -- to find a nominee who happens to be both fully qualified and in possession of two X chromosomes. As Ginsburg noted on the day of her selection, only one woman was serving on a federal appeals court when President Jimmy Carter took office in 1976. Today there are 47, more than one-fourth of the total. Women serve as chief justices on 20 state supreme courts.

Having more than one woman on the Supreme Court is partly a matter of symbolism. Before O'Connor's retirement three years ago, Ginsburg said in a speech last month at Ohio State University, "people could see that women came in all sizes and shapes, we didn't look alike, and we didn't talk alike. ... Now, there I am all alone, and it doesn't look right."

As important, though, is the inescapable fact that a female justice -- like a justice who's a member of a racial minority, or who's served in elective office, or who's been in private practice -- brings a useful set of life experiences to the art of judging. Because it is an art; it involves the exercise of judgment, not scientific measurement.

Those from the umpire school -- funny how that's a male metaphor -- would prefer not to think so. In an interview with CNBC shortly after O'Connor's retirement, Justice Antonin Scalia said that "as far as the product of the court is concerned, it makes no difference at all. I don't think there's ... a female legal answer to a question and a male legal answer to the same question. That's just silly."

Sure it is, phrased that way. But life experiences inform the act of judging, and the experience of being a woman justice comes into play at certain moments.

Ginsburg, in an interview with USA Today, cited two from this term: one involving school officials who strip-searched a 13-year-old-girl, and another on pregnancy discrimination. In the strip-search case, some justices questioned the notion that the girl was traumatized by the event; Ginsburg suggested that they just didn't get it. "They have never been a 13-year-old girl," she told USA Today. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

It's fine that some justices are from Mars. We just need a few, at least, from Venus, too.

Ruth Marcus' column is distributed by the Washington Post Writers Group.

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