Hey, Bush, pick a chick for the court.

Hey, Bush, pick a chick for the court.

Hey, Bush, pick a chick for the court.

The law, lawyers, and the court.
Sept. 29 2005 5:18 PM

Pick a Chick

Why we need more women on the Supreme Court.

A few weeks ago I suggested that race and gender should not be the only—or even the primary—filter through which we consider Supreme Court nominees. I rejected the arguments that minority candidates serve as proxies for minority views (whatever those might be), or that they create the appearance of a court that "looks like America." I was wrong. We need another woman on the Supreme Court. And while we're at it we need a few more women on the Senate judiciary committee.

Yesterday, in a speech at Wake Forest University, Justice Ruth Bader Ginsburg joined her colleague Sandra Day O'Connor and first lady Laura Bush in calling for a second woman on the high court. And while she qualified her words, her message was clear: "I would not like to be the only woman on the court," said Ginsburg. "First and foremost should be the quality of the nominee, both as a judge and as a human." But she added: "Yes, it would be nice to have another woman on the court, but not any woman." This is not the first time Ginsburg has made this point in recent days. She made similar comments last week in New York. She also offered to share her shortlist of qualified women with the president. It's rather extraordinary for a sitting justice to publicly lobby for a woman colleague. Imagine Antonin Scalia demanding that the president appoint more Catholics.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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Ginsburg also included in her remarks a story about her former colleague—William H. Rehnquist—that was less than flattering. According to the Winston-Salem Journal: "When [Ginsburg] argued a case before the Supreme Court in 1978 to include women in jury duty, even Rehnquist made an off-color joke about women . … While Ginsburg was arguing about women having equal rights with men, Rehnquist asked her, 'So you can't settle for Susan B. Anthony's face on the silver dollar?' "

If I've learned anything from the Roberts hearings, it's that we feminists totally can't take a joke. Still, I wonder why both Ginsburg and O'Connor—who differ on virtually everything—feel so strongly that there should be two women on the Supreme Court that they'd use their offices to publicly urge the president to appoint one.

And I can't help but wonder if it has anything to do with the ways in which gender politics are starting to infect our discourse about the courts. Consider this commentary by Bruce Fein this week in the Washington Times: Fein lines up Hillary Clinton, Dianne Feinstein, and Ruth Bader Ginsburg, then levels potshots at them as believers in Supreme Court justices as "apostles over the law" because of their concern for John Roberts' positions on women's and civil rights. Oddly enough, Patrick Leahy, Joseph Biden, Chuck Schumer, Ted Kennedy, and the other male Senate Democrats who called for Roberts' views in this area are never mentioned.

Mark Steyn is positively bilious about this feminization of the Democrats in the Washington Times on Monday. Again Feinstein (and only Feinstein) is blistered for wanting to hear Roberts "talking to me as a son, a husband and a father." For which Steyn's prescription is that she "get off the Judiciary Committee and go audition for 'Return To Bridges Of Madison County,' or 'What Women Want 2' ('Mel Gibson is nominated to the Supreme Court but, despite being sensitive and a good listener, is accused of being a conservative theocrat')."

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And here's George Will this week, also taking his nasty stick to Sen. Feinstein: "Dianne Feinstein's thoughts on the nomination of John G. Roberts as chief justice of the United States should be read with a soulful violin solo playing, or perhaps accompanied by the theme song of 'The Oprah Winfrey Show.' Those thoughts are about pinning one's heart on one's sleeve, sharing one's feelings and letting one's inner Oprah come out for a stroll." Will's contempt for Senate efforts to know something about the next chief justice's "temperament and values"—to understand his heart—is absolutely laser focused on the senator from California. Odd. Never a mention of Biden, Schumer, Mike DeWine, and Dick Durbin—each of whom similarly deployed the language of hearts and feelings in their questioning of Roberts.

Now, I am not come today to praise Sen. Feinstein. Her performance during those hearings probably set the women's movement back a decade. From her ingenuous "Now, I'm not a lawyer …" questions to her tendency to turn even declarative sentences into halting questions, she hardly projected the air of mastery and confidence I've seen in her in the past. I'm not sure I can sign off on her self-appointed task of representing all 145 million American women at the hearings. I can't even get behind her efforts to force a clearly private man into vomiting up mawkish personal revelations onto the hearing-room floor.

But I do wonder why it became so very easy to blast only the woman who wanted to cut through Roberts' repeated claims to be a lean, mean law-making machine. I wonder why the woman who worried about his aloofness and disconnection from poverty or suffering was singled out for derision. Is it because the stereotype of the pathetic, whiny, "but how do you feel" nag fits so much better if the asker is wearing curlers and a housecoat? Is it a cynical effort to paint all women as hysterics or merely all Democrats as women? Or is it, in the end, the consequence of having only one woman on the committee?

I'm sure it's just an accident that Fein, Steyn (weird name-coincidence or conspiracy?), and George Will each singled out only Feinstein as their judiciary committee poster-person for the strange quest-for-feeling that characterized the Roberts hearings. But it certainly evokes something Ginsburg mentioned in her remarks yesterday at Wake Forest. According to the report, she noted that "she started in law school in the 1950s—a time when law students and law practitioners were predominantly male. She said she felt pressure to excel, to break the stereotypes about women.  …  'You felt like all eyes were on you. If you gave a poor answer in class, you felt like it would be viewed as indicative of all female students.' "

Imagine being judged and ridiculed as a lightweight, when—as sole representative of your gender—you feel you must defend the achievement of all women. The solution for both Ginsburg's problem and Feinstein's is simple: Give the critics more targets. Load up the courts and Congress with enough women, and then maybe blaming them for being women in the first place will stop sounding like a legitimate critique.