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.