The Women's Chair on the Supreme Court: Fill it with a Man

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I’ve got a piece up, “The Women’s Chair,” over at NRO today about the Supreme Court nomination. So welcome NRO readers.

The talk surrounding the Supreme Court over the weekend centered on the possibility of a female nominee. But my argument is that the President shouldn’t choose a woman:

But as a woman, with a vested interest in the advancement of women writ large, my counsel for the President is somewhat different:

Mr. President, please nominate a man for the seat Justice O’Connor is vacating.”

I understand the political realities behind the make-it-a-qualified-woman recommendations. The theory is that a woman would be easier to get through the coming confirmation-cum-political Armageddon we now face. That might be true. Or, it might not.

But that way lies an underappreciated constitutional danger and a hidden hypocrisy: While the Right justly decries the Court’s recent transformation into a quasi-legislative body, they have conceded too easily as identity politics turns the Court into another vehicle for “representation” instead of constitutional interpretation.

We’ll know soon: the President is scheduled to announce his choice tonight at 9:00. Washington has been abuzz all day today with the rumor that he had chosen Judge Edith Clement. However, ABC is now reporting that Clement got a call from the White House today telling her that she is not the nominee.

Read the rest over at NRO and let me know what you think. . .

Much as I would love to see some of the women who have been suggested seated on the bench, I do hope for the greater good that this means the President isn’t going to go for filling “the women’s chair.” The really brilliant move would be to put a man in this time — to demonstrate true gender-blindess — and then put a terrific woman in next time, or, even better . . . as Chief Justice.

Wouldn’t NOW just have a fit?


July 19, 2005, 2:22 p.m.

The Women’s Chair

A bad precedent.

By Charmaine Yoest

The president will be announcing his nomination to Sandra Day O’Connor’s seat on the Supreme Court Tuesday evening. Court watchers have been discussing the female jurists who might replace her, and waiting for the President to announce someone with the right chromosome mix for the newly minted “women’s chair” on the Supreme Court. This discussion gained momentum when the First Lady commented that she wanted her husband to nominate a woman for the vacancy. Conservatives Hadley Arkes and Bill Kristol have jumped on the woman bandwagon — both before and after Mrs. Bush’s comments, respectively.

But as a woman, with a vested interest in the advancement of women writ large, my counsel for the President is somewhat different: Mr. President, please nominate a man for the seat Justice O’Connor is vacating.”

I understand the political realities behind the make-it-a-qualified-woman recommendations. The theory is that a woman would be easier to get through the coming confirmation-cum-political Armageddon we now face. That might be true. Or, it might not.

But that way lies an underappreciated constitutional danger and a hidden hypocrisy: While the Right justly decries the Court’s recent transformation into a quasi-legislative body, they have conceded too easily as identity politics turns the Court into another vehicle for “representation” instead of constitutional interpretation.

How much further do we want to solidify the idea in the popular consciousness that the Supreme Court is some sort of super legislature? Once while appearing as a panelist on Politically Incorrect, we got into a debate about a legal issue, and one of the Hollywood guests blurted out angrily: “But the Supreme Court is supposed to represent us!”

Well, no, actually, that would be Congress. This is the problem; we seem to have a fundamental confusion about what it is the various branches of government are supposed to do. Senators, congressman — the people who get elected every few years, and have to be accountable to their constituents — they are the ones who represent the people. Judges on the Supreme Court — the ones with lifetime tenure — they are the ones who are supposed to interpret the Constitution.

But perhaps even more troubling is the pervasive confusion over the nature of representation itself. Do we have to have a woman to “represent” women?

As the high practitioners of identity politics, the National Organization for Women is lobbying for a woman in the so-called woman’s chair: “The President should honor [Justice O’Connor’s] legacy by nominating a woman to the Court who is likewise committed to upholding equality for all.”

Note the careful crafting of that statement. Not just any woman will do. In order to qualify as a woman in their book, a jurist must be “committed to upholding equality for all.” That’s code for abortion rights. Everyone knows that if the president nominates a woman who has indicated opposition to abortion, NOW will oppose her with every ounce of their mailing list’s might.

This is the key point: Gender really is irrelevant to policy positions, and more relevantly, to an approach to constitutional interpretation. And here’s the awful irony: As we travel further down this path of nominating a woman qua women it will ultimately harm women as a whole.

Here’s why. After this nomination, another will follow. And likely another. But let us ask this question: After the president nominates, say, one of the Ediths — Judge Edith Jones or Judge Edith Clement — for this seat, will he give equal consideration to another female for the next nomination?

No, he won’t. This is not an indictment of the president’s consideration process; it is a denunciation of identity and group politics. Once we have succumbed to the perversions of the feminist gender prism, for the next vacancy these same women will be hampered by the qualification that brings them forward this time. They are women. And the exigencies of identity politics will have moved on.

Last week the buzz surrounded a professional man who is “Hispanic.” This week it is accomplished jurists who are “women.” Next week whichever group’s turn it is.

Even if the president nominates an Edith NOW doesn’t like, her nomination will represent the full-fledged establishment of the “women’s seat” on the Court. But what a Pyrrhic victory for women. Feminists will have succeeded in further solidifying “women” as a minority interest group, rather than professionals qualified for any opening on the Court independent of gender.

— Charmaine Yoest, a senior fellow at the Family Research Center, publishes the blog “Reasoned Audacity” at www.CharmaineYoest.com.

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9 Responses

  1. Jinny Brow says:

    It’s ideas and words that really matter in the world of politics and justice, not the skin color or sex of the person who expresses them. I’d prefer President Bush to nominate court appointees who respect the rule of law and are “like Clarence Thomas and Antonin Scalia”, as Bush promised in his 2004 campaign. Those of us who helped re-elect W are watching!

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  3. Patricia says:

    I agree. It’s time that MLK’s “content of your character” and not your gender or race determine behavior in society, unless we intend to become the Balkans.

  4. Becca says:

    It looks like the president listened to your words of wisdom … time now to batton down the hatches for the oncoming battle to approve … for those of us outside the beltway, it’s become tiresome to watch the political infighting. Patrick Leahy’s and Harry Reid’s comments this morning were just so boringly predictable.

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    On Tuesday, hours before President Bush nominated John Roberts, PenPro Pal Charmaine Yoest wrote:

  8. RD says:

    Great post – just found it (and NRO piece). Didn’t find any TV coverage of ths issue at the time & thought no one was covering this 🙂

    Given the two variables – who retires first (O’Connor or Rehnquist) & the nominee’s gender (male or female) – “O’Connor/male” is the best tactical choice for conservative aspirations. It doesn’t get much better than that IMO.

  9. RD says:

    Do you think an “in-category” replacement of a woman with a more conservative woman might contain a powerful psychological imperative for the Left, that is skipped entirely by replacing her with a man with the same views instead? It just seems that the Left is so engrossed in identity politics – that gender overshadows their better judgment to such an extent – that replacing a woman with another woman, having removed the Big Concern from their to-do list, allows their minds to obsess over much more intricate details, including ones that aren’t very important.

    I wonder if that’s partly psychological. It is possible they feel the “backsliding” in their minds more acutely if they’re comparing two apples than if they’re comparing an apple and an orange? Or is it just because he’s a “man”, especially a “white man” (for whom they don’t harbor any expectations anyway ;)?

    I’m not blind to the kind of overwhelming pressure their hysteria can bring to bear in the “public square” (more accurately, the media) and I don’t think it’s all a cynical ploy; I think the harpys at NOW genuinely suffer whatever psychological “trauma” it is they seem to be trying to pass along, no matter how unjustified it is.

    Whereas with a man, I think a lot of that dissipates. Even more than it should IMO, as if the same ideological blind spot prevents them from assessing anything about the MAN other than the fact that a he’s a MAN, and that “a woman was replaced with a man”. With this blind spot to contend with, NONE of their actual differences appear significant.

    Obviously reason must tell them differently; but I don’t see the same level of emotional urgency or psychological “trauma”. Is there a lesson in this somewhere? (No idea 😉 Besides the fact that Bush’s tactics may have been exemplary on other grounds, it’s almost as if Bush did these women a favor by sparing them – and us (vicariously via the press) – this “trauma”. (But do I hear any thanks? NO… 😉

    Ditto for sparing conservatives from the very real possibility that this ginned-up hysteria would have forced a Republican President – once again – to pick a “compromise candidate” in the futile attempt to mollify it.

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