Political Discourse

[DewDiligence]

Court Opening Prompts Question About Whether Gender Matters

http://online.wsj.com/article/SB124224875423016657.html

›MAY 14, 2009
By JENNIFER S. FORSYTH

Following Supreme Court Justice David Souter's retirement announcement earlier this month, court watchers were immediately unified on one point: his successor would likely be female.

Why the emphasis on gender? After all, there are no Asians, Hispanics or Muslims, male or female, on the court. But the lack of women is widely perceived as the gap that most needs to be addressed.

It stems partly from the idea that a nearly all-male court raises questions of fairness. Women are underrepresented not only on the Supreme Court but in all legal leadership roles, including Fortune 500 general counsels and law-school deans. Although women have made up about half of law-school graduates in the past two decades, they serve as about 19% of federal judges, according to the Federal Judicial Center.

So far, President Barack Obama hasn't said anything about the gender of the next justice. And according to a new Gallup poll, 64% of Americans say it doesn't matter to them whether the next justice is a woman. But most of the names frequently mentioned as potential nominees are women. Among them: federal appellate judges Diane Pamela Wood and Sonia Sotomayor; Elena Kagan, U.S. solicitor general; and Pamela Karlan and Kathleen Sullivan, both Stanford University law professors.

In fact, advocates for a female nominee are so sure this is their time that it could make waves if Mr. Obama chooses one of the few men whose names have been floated, such as California Supreme Court Justice Carlos Moreno.

On the Supreme Court, the first female justice, Sandra Day O'Connor, was the lone woman for 12 years before President Bill Clinton nominated Ruth Bader Ginsburg in 1993. And when Justice O'Connor retired from the court in 2006, the court again became a one-woman institution, as Samuel Alito took Justice O'Connor's seat.

But those pushing for a female nominee say the need on the court isn't only a matter of perception.

"It goes far beyond my own selfish interest to have my daughter grow up and be able to look at this highest court and see people who look like her," says Hannah Brenner, executive director of the University of Texas Center for Women in Law. Rather, Ms. Brenner contends that the court, and the country, benefits from people with varying experiences and viewpoints.

Justice Ginsburg has made that point herself. In an interview with USA Today last week, she discussed the attitude of her colleagues during recent arguments in Safford Unified School District No. 1 v. Redding, in which school officials looking for pain medicine strip-searched a 13-year-old girl. She said the male justices didn't understand what a sensitive age that is for young females. "They have never been a 13-year-old girl." Justice Ginsburg declined to comment for this article.

Some experts, particularly conservatives, say such statements demonstrate the danger in making gender, or race, the main criteria for picking a nominee. It risks that justices will come to see themselves as needing to represent the views of a particular group, rather than acting as an umpire who remains neutral about who wins and loses, as Chief Justice John Roberts has described the role.

"When you make appointments based on particular ascriptive criteria, the justice sooner or later could say, 'Oh, OK, I better reflect the desires of the constituency to which I belong," says Stephen Presser, a legal historian at Northwestern University. "You have to be very careful of having the court be a representative body and thinking about it in political terms, because that weakens the rule of law."

An analysis published in the Yale Law Journal in 2005 suggests that the presence of a female justice can play a role in the courtroom. In a review of 556 federal appellate cases, the study found judges' gender increased the likelihood that the court would find for the plaintiff in sexual-harassment and sexual-discrimination cases. In addition, male judges were more likely to find for these plaintiffs when at least one female judge was on the panel.

Jay T. Jorgensen, a partner at Sidley Austin LLP who previously clerked for Justice Alito and former Chief Justice William Rehnquist, says he saw first-hand how life experience can inform the justices' discussion. In 2000, the court heard a case called Public Land Council v. Babbitt, which centered on grazing rights. Justice O'Connor, who had been raised on a ranch, was able to elevate the discourse due to her knowledge of the industry. Yet, Mr. Jorgensen makes the point that her life experience didn't predetermine her vote. The court ruled 9-0 against the ranchers.

Deborah Rhode, director of the Center on the Legal Profession at Stanford University, says studies show that legal ideology is a stronger predictor than gender of judges' decisions.

That is why women's groups didn't agitate as strongly for a woman nominee when President George W. Bush filled two vacancies. President Bush nominated his chief of staff, Harriet Miers, but she withdrew her name after a withering assault that questioned her qualifications and lack of conservative credentials.

"People who care about women's issues realize that not just any woman will do," Ms. Rhode says.

But with a big pool of accomplished female jurists to choose from, advocates for a female appointee say, is there any reason the next pick should be a man?

Given the list of potential nominees, says Ms. Brenner of the Texas law center, "there is no one who can argue there is not [an] overwhelming number of qualified women who could be nominated to the court."‹