The Politics of Gender/Ethnicity in Appointing the Next Supreme Court Justice

Justice David Souter has confirmed rumors of his retirement from the United States Supreme Court with a call to President Obama at the White House. Now comes speculation on who will replace him.

This will be the first Supreme Court appointment for a Democratic President in more than fifteen years. The pick will most likely not change the ideological balance of the Supreme Court in that Souter was a liberal minded justice contrary to what was thought his leaning at the time he was appointed by then President George H. W. Bush.

As might be expected, another liberal leaning justice will most likely be the pick. There is strong support for a female to be the replacement as there is only one female on the court as of now, Ruth Bader Ginsburg, seventy six years of age and not in the best of health having battled cancer several times during her tenure.

This can be discerned by early discussions from liberal and feminist organizations weighing in on this as soon as it was rumored that Souter would be retiring leading one to assume they had been ready for any announcement of any retirement of justices several of whom will undoubtedly consider it soon.

“We’re looking for President Obama to choose an eminently qualified candidate who is committed to the core constitutional values, who is committed to justice for all and not just a few.” So says Nan Aron, leader of the ultra-liberal/activist Alliance for Justice. Read: “We are looking for another liberal on the court to maintain the status quo.” They will undoubtedly push for a woman. It will be interesting to see their positions and recommendations.

Now it gets sticky even if we assume President Obama will pick a liberal justice. Pressure will be on him to choose a woman – big time. Here we get into the arena of gender and/or ethnic politics. Critics of the Supreme Court have long accused it of being a bastion of conservative white males not reflective of the population as a whole. Cries have long echoed from various women’s groups to even the playing field by appointing more women to our nation’s highest judicial group.

Several women possibilities have been mentioned as candidates including Judge Diane Wood of Chicago, Judge Sonia Sotomayor of  the appeals court in New York, and Judge Kim Wardlaw of the U.S. 9th Circuit among others. It will be interesting to see the complete list of women who surface as potential nominees.

President Obama has not committed himself to appoint a woman as a matter of principle. He iterates he is looking for a good constitutional law candidate, one imminently qualified to do the job and not necessarily a candidate from this or that political activist group. But don’t underestimate the pressure from women’s groups to do just that. It will be immense and unrelenting to the point of being nearly insurmountable and not politically feasible to ignore. And ethnic groups, mainly the Hispanics, will weigh in heavily on nominating one of their choices.

So the waiting begins. Will feminists prevail on the President? Will Hispanics clamor for their ethnic ‘dues’? It will be an interesting exercise in gender as well as ethnic politics – moreso than the most recent Presidential election process which was awash in such nonsense that it was about time we had a woman in the White House - as if that should have been the only consideration in our choice. Thankfully, not many succumbed to that argument although Hillary certainly pushed the limit on it. She may have claimed to having cracked the glass ceiling, but the voting public, who could have astoundingly shattered it, saw through her gender politics for just what it was – hogwash.

Interestingly, the most sense I have heard so far on this selection process comes from the most unlikely of sources, Alan Dershowitz of Harvard Law School fame. In a conversation with Nora O’Donnell of MSNBC, the question of gender, ethnicity, as well as race was put on the table as a consideration in selecting the next justice. Mr. Dershowitz quickly quelled any thoughts of these factors by saying that “representational pressure” should not be a consideration in Obama’s choice. Instead he strongly advocated the most qualified should be the selected candidate - no other factors should be part of the decision. He especially denounced picking any judges as replacements. This was an astounding proclamation by Alan considering his liberal bent evidenced by his past legal discussions.

The flip side of Dershowitz’s cautionary advice is the clamor from gender/ethnic affiliations to appoint one from their group. Immediately following O’Donnell’s segment on MSNBC, Chris Matthews of ‘Hardball’ hosted several guests to discuss the upcoming nomination. “Does President Obama’s Supreme Court pick need to be a woman? Does it need to be a Hispanic nominee?” Chris asked of his guests.

One was a National Organization for Women representative who subtly advocated for a woman replacement for Souter. “It makes a difference. It increases the voice. It increases a perspective. And it adds something to the entire body. There’s actually research that says that male judges tend to vote a little differently when there are women on the court with them.” said NOW President Kim Gandy.

But the most egregious example of what Dershowitz warns about was supplied by Ruben Navarrette, a staff columnist for The San Diego Union-Tribune and an avid pro-immigration advocate favoring the immigration invasion of our country by especially Mexicans – his heritage - here legally or illegally. Ruben revealed his perverse, ethnically unbalanced position when he answered a query from Chris concerning appointing a Hispanic to the Court: “We’re due!” he defiantly exclaimed as if this is some sort of lottery. “And I don’t just mean we’re due from the Obama administration. I mean we’re due throughout history…the real reason that you need to put a Latino on the Supreme Court, this is the fastest growing minority... this is a minority that, by 2032, will represent a quarter of the entire country…It’s the Latinos` turn to break their barrier.”

Ruben continues his whiny tirade for justice for Hispanics: “It’s easy enough for white males to come forward and say that race and ethnicity or gender shouldn’t matter. But the fact is, this is the way we have always done this. And whether it was important for Italian-Americans to get Antonin Scalia there, or important for African-Americans to get Thurgood Marshall there, why is it, all of a sudden, when it’s Latinos` turn, that, oh, that’s identity politics? …It’s just not fair.”

Imagine that? Have we really come to the juncture in our country where the spoils of government are appropriated according to gender, ethnicity, or race? Apparently, and regrettably, so.

This will be the first of what will likely be numerous Supreme Court justice appointments that President Obama will be privileged to make. There are perhaps three rumored retirements in the near future in addition to Souter. His choices will be scrutinized by left and right groups to the extent each will be contentious.

It is his call. Let’s keep our eyes open and our minds clear on this first one to see if it reveals any hidden agendas, political motivation, character traits, or what Dershowitz warns of: “representational pressure”.