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Should Supreme Court Justices Be Selected On The Basis Of Looks?

Apparently so, at least in part, according to Ruth Bader Ginsburg, the only woman currently on the Court.

Before O?Connor?s retirement three years ago, Ginsburg said in a speech last month at Ohio State, ?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.?

That quotes comes from a Washington Post OpEd today by Ruth Marcus, oddly enough also a woman, who declared that Ginsburg?s replacement must also be a woman.

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.

Which is why? What which is that? Must we be sent on a which-hunt to find the principle on which (if you?ll pardon the expression) Marcus?s fiat is grounded?

Marcus acknowledges that ?[h]aving more than one woman on the Supreme Court is partly a matter of symbolism.? Fine. Let?s grant, with Ginsburg, that ?it doesn?t look right.? But is that all there is to the argument, i.e., what exactly is that which again?

About the only other comment in Marcus?s column that sounds like an attempt to make an argument beyond symbolism and looks is her assertion that ?the stark fact is that having one female voice out of nine is not consistent with women's being half the talent pool.?

That may well be true, but then it is equally true that ?stating the ?no men need apply? litmus test so categorically,? as Marcus admits she?s doing, also violates the core value of treating individuals, and making important appointments, ?without regard? to race, creed, color, or sex. In fact, it goes further than violating that principle by ?taking sex into account?; it rules out candidates absolutely on the basis of sex.

But since Ginsburg, and presumably Marcus as well, have long since rejected the ?without regard? principle in favor ?taking whatever (race, sex, ethnicity, etc.) into account,? let?s set that powerful principle aside. Even ignoring the principled objection to Marcus?s ?no men need apply? doctrine, why must women go to the front of the bus full of potential appointees? They, after all, are not the only ?underrepresented? ? or even unrepresented ? group. There are also no Hispanics, Asians, or Muslims on the Court, and never have been. Heck, there?s not even a white Southerner on the Court. Why exactly should all these groups, and more, be forced to stand behind women? Is there any principled way to choose among ?underrepresented? or even unrepresented groups? If so, Marcus certainly doesn?t tell us what it is.

Finally, it?s worth pointing out that Justice Breyer should be thankful that President Clinton did not completely follow Ruth Marcus?s and Justice Ginsburg?s ?look like? appointment philosophy. If he had, Breyer never would have been nominated, since his nomination in 1994, following Justice Ginsburg?s the year before, meant that with two of nine justices Jews became heavily ?overrepresented? when Breyer joined the Court. (Jews are about 2.2% of the U.S. Population, but were 22% of the Court with both Ginsburg and Breyer.)

Choosing or rejecting people for anything on the basis of race, sex, gender, ethnicity, or religion is an ugly business. The less we have of it, the better ? no matter what the results look like.

Full post as published by Discriminations on May 13, 2009 (boomark / email).