Judging Women By Their Merits

By Kathleen Peratis

Published July 22, 2005, issue of July 22, 2005.
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Does it matter that there will not be two women on the United States Supreme Court? Would it matter if there were none?

Sexual politics heated up over the last two weeks as President Bush came ever closer to naming his choice to replace Justice Sandra Day O’Connor, whose retirement takes effect, by its terms, upon the confirmation of her successor. Some Bush backers seemed to be betting that feminists would hold their fire if the nominee were a woman, any woman, because nothing would be worse than going back to tokenism.

(In an oral argument in the 1970s, Justice William Rehnquist asked then-advocate Ruth Bader Ginsburg why women were not satisfied with their progress; Susan B. Anthony’s likeness, after all, was gracing the face of the $1 coin. Ginsburg was tempted to say, she later recounted, “No, your honor, tokens won’t do.”)

On Tuesday, Bush announced his choice. He is John Roberts, white, male, Harvard educated and an appellate judge — a nominee from Central Casting. If Roberts is confirmed, Ginsburg will become an example of exactly what she thought her appointment had consigned to history: women as “one-at-a-time curiosities” on the Supreme Court. For those like Eleanor Smeal of Feminist Majority, who advocate that there be at least four women on the Supreme Court, this is a bitter pill.

Ginsburg might not agree. She is fond of quoting former Minnesota Supreme Court Justice Jeanne Coyne, who once said, “A wise old man and a wise old woman will reach the same judgment.” But if this were true, whether for this vacancy or the next, why bother trying to bring forward female candidates?

Many women, and I count myself among them, are bipolar on the issue. We argue that women are, and are not, essentially different from men.

On the one hand: Lawrence Summers’s remarks at Harvard University in January — suggesting that differences in genetic gifts explained, at least in part, why tenured women are rare in math and science — were ignorant and offensive. In Katha Pollitt’s outraged eloquence: “We are past the day when brilliant women could be expected to sit quietly while a powerful man parades his ignorance of [feminist] scholarship and of their experience.”

On the other hand: When feminists acknowledge that women bring “a distinctive medley of views influenced by differences in biology, cultural impact and life experiences” — a phrase quoted with approval by Ginsburg — what does that mean if not that there are differences that matter?

In a 2001 interview at the Association of the Bar of the City of New York, journalist Lynn Sherr asked Ginsburg: “What goes on while you’re sitting there listening to arguments about… a sex discrimination issue? Do you [and O’Connor] shoot each other glances? Is there that kind of knowing look?”

There is hardly a woman alive who has not had the delicious experience of having a female in the room with whom to exchange such glances. And Ginsburg admitted to it: In the oral-argument portion of a 1996 case, concerning whether the Virginia Military Academy’s exclusion of women was constitutional, Ginsburg shot O’Connor a look as she mentioned a 1982 O’Connor decision in which a gender exclusion had been struck down by the slimmest possible majority. When the vote was counted in the 1996 case, it was 8 to 1 for gender equality. And O’Connor deferred to the more junior Ginsburg, who wrote the opinion. Would the Virginia Military Academy case have gone the other way if there had not been two women on the court? Probably not. Would the decision have been 8 to 1? I don’t think so.

Both before and after O’Connor announced her retirement, the Bush administration seems to have been incapable of seriously considering any candidate other than a sitting judge. The passed-over included three pretty awful female appellate sitting judges: Edith Brown Clement, Priscilla Owen and Janice Rogers Brown. If one of them had been nominated, they would not have put feminists on the horns of a dilemma. Clarence Thomas’s color didn’t fool us — at least, not all of us — and neither would the gender identity of these three.

Nevertheless, women like Owen, Brown and Clement will probably remain on the Bush list, and pressure for the appointment a woman next time — if Bush has a next time — might be strong. Should that time come, though, we should focus what little leverage we have on expanding the search beyond the appellate bench, not because there are not superb female sitting judges — there are, tops among them Judith Kaye, the chief judge of the New York Court of Appeals — but because, as a practical matter, Bush would not appoint one of them.

All recent presidents with a Supreme Court appointment to make, and Bush is no exception, have said they would consider people who are not sitting judges. We should keep that option alive. The numbers of women in Congress and in state capitals across the country increases every year: At present, there are eight female governors, five attorneys general and 12 secretaries of state. Most of them don’t attend Naral rallies, but many are nevertheless practical politicians and moderate in the O’Connor mold — remember her? — and are certainly less ideologically driven than the judges that show up on Bush’s radar screen.

Let’s not give up on our belief that the appointment of a woman matters. Let’s just try to ensure that if Bush gets another appointment, or if this one fails, the woman he appoints is not a hard-right female impersonator.

Kathleen Peratis, a partner in the New York law firm Outten & Golden, LLP, is trustee of Human Rights Watch. She was director of the Women’s Rights Project of the American Civil Liberties Union from 1974 to 1979, succeeding Ruth Bader Ginsburg.

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