Nominate a Woman to the Supreme Court

Last week, I had the privilege of attending the Women's Power Summit on Law and Leadership at the University of Texas.  One of the most exciting experiences while attending was hearing firsthand from Justice Sandra Day O'Connor on the struggles she's faced as a woman in the legal profession.  One of the things Justice O'Connor discussed was her disappointment that there was not more of a movement to replace her on the Court with a woman.  That very same night, the news of Justice Souter's retirement was announced.  As noted in Jessie's earlier post about the summit, a resolution was passed urging President Obama to appoint a woman to replace Justice Souter on the Court.

To me, wanting another woman on the Court seems totally self explanatory.  Which is why I was shocked when I turned on the radio last night and Mark Levin was on discussing the Supreme Court and said something along the lines of "who cares about genitalia- it's what's between the ears, not between the legs that matters."  And of course, this was not about supporting women because they are equals- it was basically an argument that gender shouldn't be considered because it makes no diffrerence in how cases are decided.  And I thought to myself, seriously, why doesn't he get it?

His general point is right; it's between the ears that's important.  However, what Levin failed to connect is that what's between the legs does affect what's between the ears.  Not that being women makes us smarter (though I'd like to believe that), but gender inherently shapes our experience which affects our way of thinking. 

This is not to say that a woman wouldn't or couldn't decide a case the same way as a man.  But the truth is that being a judge is often just as much about the perception of the facts of the case as it is about the law, and the lens through which a judge views those facts can be key in decision making.  The lens through which judges view those facts are shaped by their own life experiences.  And let's face it- women's life experiences are often different, as are those of people of color, LGBT, people with disabilities, members of religious minority groups, or anything else that might subject you to different treatment based on something besides your brain. 

To me, the strongest reason to nominate another woman to the Court is those life experiences that she would bring to the discussion.  Studies show that diverse groups make better decisions than homogenous groups of experts.  I have to believe that's because a diverse group of people bring to the table varied viewpoints on issues to be considered and analyzed before making a decision.

But we have Justice Ginsburg for that, right?  This is true.  However, how many of you consider yourself to have the same viewpoint on issues as your mother?  Women are shaped by many things, not just their gender.  Whatever woman is nominated to the Supreme Court is likely to be young enough to be Justice Ginsburg's daughter.  She will have grown up in a different generation, facing different issues and different questions that shape her life lens.  She would bring a new perspective to the Supreme Court from a generation of women that has yet to be heard from on that level.

All of this is of course leaving out the fact that there are many highly qualified women who would bring outstanding credentials and skill in legal reasoning in addition to the viewpoints they would bring to the table.  I feel like that should be on of those things that goes without saying, but sadly we aren't at that point yet.  Another woman on the Supreme Court would be another step toward advancing women's standing in the profession and overcoming biases that still exist.  But most importantly, having another woman on the Court is likely to make the Court a better decision making body.

I hope that after this nomination, Justice O'Connor will not be disappointed in us.


For another perspective on this issue, see Lauren Stiller Rikleen's article in the Boston Globe.



One thing that bothered me during the conference was the continued reference to women holding 11% of Supreme Court positions. Yes I can do math, 1/9 = 11%. But I think 11% fails to convey the full extent of the problem. Study after study (here’s an example from a statistician I trust) demonstrate that discrimination by a majority is connected to that majority’s lack of exposure to the relevant minority. Significantly, having 1 or 2 minority members in a community fails to impact perceptions, behavior, etc. But three is some kind of critical mass. Having women on the court is not just about having their perspectives heard through opinion writing, it’s about normalizing a group of men to those perceptions. While we’re at it, having 3, 4, or 5 women on the court might go a long way towards convincing lots of non-justices that women are competent, hard-working, and promotable.
UPDATE: New poll from Gallop today - a majority of Americans say the next nominee’s gender doesn’t matter. Meanwhile, a study by Christina Boyd and Lee Epstein "found no difference in the voting patterns of male and female judges, except when it comes to sex discrimination cases." 

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