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May 20, 2009

How Would a Woman Change the Supreme Court?

The better question is, what's that woman's political ideology?

Stacey Hunter Hecht, guest blogger

This spring may mark another race - besides last weekend's Preakness Stakes - that finds a female crossing the finish line in first place.

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Since Associate Justice David Souter announced May 1 that he would be retiring from the Supreme Court, pundits and Court watchers have predicted President Obama will nominate a woman to fill the seat. If appointed, a female justice would be only the third to serve. President Reagan nominated the first female Justice to the Supreme Court, Sandra Day O'Connor, in 1981. President Clinton nominated the second, Ruth Bader Ginsburg, in 1993. Thus, from 1993-2006 two women served on the Court, until Justice O'Connor resigned and her seat was filled by Justice Samuel Alito.

Political scientists observe that Presidents are reluctant to reverse the precedent of appointing religious, cultural, and racial minority-group members once the initial barrier is broken. Roger Taney's 1835 appointment to the Court created a minimum threshold of one "Catholic seat" on the Court. (There are currently five.) Louis Brandeis's 1916 appointment similarly created a "Jewish seat" that was kept until Abe Fortas resigned in 1969. And in perhaps the most striking case of a President preserving the seat, President George H. W. Bush nominated Clarence Thomas to fill the seat vacated by Justice Thurgood Marshall, appointed in 1967, maintaining an "African American seat." The Thomas appointment resulted in a dramatic change in both the political ideology and judicial philosophy of the person holding that seat.

Given this, restoring two women members to the high court seems in keeping with past presidential practice. According to recent American Bar Association data, women now compose about half of U.S. law school students, 30.1 percent of practicing attorneys, and about a quarter of judges on the lower federal courts. Current top prospects for the nomination include Judge Sonia Sotomayor, federal judge on the U.S. Court of Appeals for the Second Circuit; Diane P. Wood, federal judge on the U.S. Court of Appeals for the Seventh Circuit; Elena Kagan, currently the U.S. Solicitor General, the federal government's top lawyer; and Janet Napolitano, current Secretary of Homeland Security and former governor of Arizona. Other maybes include Michigan governor Jennifer Granholm, and Leah Ward Sears, Chief Justice of the Georgia Supreme Court. Of the top four contenders, publically available data suggest that at least two are Christians, and one is Jewish.

The Thomas appointment points to the challenge of using race, gender, or religion as the primary criteria in nominating a Justice. Judicial philosophy matters. Political ideology matters. And sometimes, despite an increasingly meticulous vetting process, Presidents pick Justices whose ideology or judicial philosophy is not clear enough to ensure a "match." Republication President Dwight D. Eisenhower famously said that nominating activist Justice Earl Warren to the Supreme Court was the biggest mistake he ever made. In August 2008, at the Saddleback Civil Forum, then-candidate Obama and Pastor Rick Warren had the following exchange:

WARREN: OK. The courts. Let me ask it this way. Which existing Supreme Court justice would you not have nominated? OBAMA: That's a good one. That's a good one. I would not have nominated Clarence Thomas. [ applause ] I don't think that he - I don't think that he was as strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution. I would not nominate Justice Scalia, although I don't think there's any doubt about his intellectual brilliance, because he and I just disagree. He taught at the University of Chicago, as did I in the law school.

More recently, President Obama has suggested that empathy and identification with everyday people's real lives are qualities he thinks are important in a nominee, so it may well be that he will seek a nominee from outside the ranks of the judiciary, in contrast to the current Court, which comprises only former federal court judges.

Ultimately, what role do political ideology, judicial philosophy, gender, and religion play in Supreme Court decision-making? It's important to note that, regardless of Obama's appointment, the Court's balance of political ideology will not shift. Souter, though appointed by George H. W. Bush, voted in the minority liberal bloc on the Court, so the conservative 5-4 majority will be kept. According to Sunday's New York Times, politically conservative interest groups, some of them religiously affiliated, are marshaling arguments opposing the purported frontrunners in the nomination race, centering their arguments on potential nominees' positions on abortion, same-sex marriage, and church-state separation

With regard to gender, the Court recently ruled 7-2 (with the Court's lone female Justice dissenting) that pregnancy leaves can be excluded from the working time used to calculate pension benefits. Still, there is no conclusive evidence that women on the Court - especially when they will have at most two votes - substantially affect the Court's decision-making. A recent book by New Yorker staff writer Jeffrey Toobin suggests that Justice O'Connor's presence on the Court significantly altered the Court's social dynamics, particularly within the world of her own clerks, for whom she cooked crock-pot lunches on Saturdays and sent baby gifts long after their clerkships had ended. On the effect of religion on decision-making, we have recent evidence from the Justices themselves - notably Justice Antonin Scalia, an outspoken abortion opponent who nonetheless noted,

"The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge. . . . Just as there is no ?Catholic' way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic."

While abortion, same-sex marriage, and embryonic stem cell research may be useful for political mobilization of politically conservative voters, and while the specter of liberal judges may help in fundraising efforts, religion and gender may not be good proxies for discerning a potential nominee's position on these issues. Ultimately, judicial philosophy and political ideology matter a whole lot more, though accurately discerning these attributes of potential nominees is a good deal more difficult.

Stacey Hunter Hecht is department chair of political science at Bethel University, St. Paul, Minnesota.

Posted by Katelyn Beaty on May 20, 2009 8:00 AM

Comments

Why, why, why, when Jeffrey Toobin's book spends considerable time reporting on the actual legal influence Justice O'Connor had on the Court over her lengthy tenure there, does this CT article cite only Justice O'Connor's cooking and gift-buying as evidence of her influence? Could Dr. Hecht find nothing substantive to say about Justice O'Connor's legal work/influence on the Court? Granted this is a short blog post, but that's just appalling.

Certainly there's a good debate to be had about whether Justice O'Connor's political philosophy, her Western libertarian upbringing, her gender, or somthing else had a greater influence on her work on the Court. And, maybe she did bring a greater sense of family comraderie to the clerks, but surely it is dismissive of her great body of legal opinions (love them or hate them) to focus solely on that.

On the influence of religion on the justices' decision-making, this article cites only Justice Scalia's assurances that it makes no difference to his decision-making. With great respect to Justice Scalia, just because he believes it does not make it so. Judging is not really as simple or straightforward as making a hamburger. No analysis on this point either.

I don't have time to do a lengthy legal analysis of Justice O'Connor's and Justice Ginsburg's voting records and whether those records were influenced by the Justices' gender. Likely there's a law review article already out there. But, anyone who's ever worked with a diverse group of people can attest to intellectual stimulation that comes from people's various experiences, backgrounds, languages, genders, orientations, nationalities, etc. It's not that all people from one group or another all must think alike. But, there is something undeniably valuable in the ideas/approaches that can be sparked by differing experiences focused on a single task or issue.

There is no need to pick between judicial philosophy or gender as this article suggests. Given the large number of qualified women who share the President's judicial philosophy, there is no reason to forsake one objective for another. Nor does selecting a woman mean reaching into the second tier of quality. Those women on the short list are eminently qualified. For a qualified woman, her gender will be a bonus factor, on top of her legal skills, to help rectify an imbalance on the Court.

Finally, while it's irrelevant to the main point of the article, the article misstates the holding of the pregnancy leave case. The holding is limited to pregnancy leaves taken more than 30 years ao. The lilnked NYT article has it right (tho' the headline does not).

Posted By: Christian Lawyer | May 20, 2009 10:50 PM

A current and practical difference in having a woman on the bench occurred just a couple weeks ago. Justice Ginsberg thought that having a 13 year old girl strip search because there was an unconfirmed report that she might have ibuprofen was inappropriate. She said that as a girl she would have been traumatized by a strip search. While the men on the bench seems to think that being naked was part of a game and talked about hiding things in one another's underwear. Past experience does matter. To say that it doesn't just ignores reality. We are also shaped in our philosophy and actions by our past experiences. Yes a good judge tries to look at legal background and law, but a good judge also brings in common sense, which is determined in large part by past experience. Ginsberg seemed to have the common sense to think that strip searching a girl was inappropriate, while the others did not.

Posted By: Adam S | May 21, 2009 4:50 AM

"Christian lawyer," based on your style, I'm dubious about the adjective. Could you not have found a more gracious way to make your point? Are you more concerned with showing off your "lawyer" perspective, and neglecting the fact that this is a political scientist commenting? Have you forgotten that there's a person on the other end of the email? A person whose email address would take 30 seconds to look up if you wanted a private conversation? I'm not saying "be nice" because I know Dr. Hecht; I'm saying "rethink your approach" because it looks like you want to show off and win the victory more than provide another helpful perspective.

Posted By: RJS | May 22, 2009 4:36 AM

RJS: this is a blog post. If she didn't want a response she wouldn't have posted or there wouldn't be comments. If you don't like the response talk about the content. Certainly CL didn't question anyone's faith, which you just did. That is much more serious than questioning a blog post.

Posted By: Adam S | May 22, 2009 5:06 AM

RJS -- I assume if you had any substantive defense of Dr. Hecht's analysis, or any substantive challenge to mine, you would have included it. Your ad hominem attack on my Christianity would seem to be something of an oxymoron.

Posted By: Christian Lawyer | May 23, 2009 1:43 PM

A hasty editorial process resulted in the elimination of some of my post, and the first respondent is certainly correct to note that Toobin does not suggest that O'Connor had no significant role on the Court. The error in not catching the change in substance of that portion of the post is entirely mine, and I apologize for creating a misperception. And I certainly agree that all sorts of life experiences contribute to the formation of a judicial identity. It will be interesting to see how the nomination shapes up in the coming days.

Posted By: Stacey Hunter Hecht | May 25, 2009 3:16 PM

According to Judicial Analyst Bruce Hausknecht:
“With President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, the country is again confronted with the question: What type of justices should sit on the Court? Americans overwhelmingly support justices who base decisions on the law and the Constitution, practice judicial restraint, and believe judges should never make policy," Hausknecht said in the written statement. “From what we know about her, though, Judge Sotomayor considers policy-making to be among a judge’s roles, no matter what the law says. She disregards the notion of judicial impartiality, even stating that as a Latina woman with her life experience she should ‘more often than not’ reach a better conclusion than a ‘white male who hasn't lived that life.’"

This is exactly why she should be disqualified...

Posted By: Donna S | May 26, 2009 6:15 PM

Of course the same analyst also said

“She applied the law even-handedly and come out with the right decision,” said Bruce Hausknecht, a judicial analyst for Focus on the Family Action, a large and influential voice on conservative social issues.
Sotomayor’s rulings on religious liberty issues also have pleased the conservative community.
“It would have been a lot easier to communicate to the base why Judge Wood would not have made a good nominee,” said Hausknecht. “With Sotomayor, we have to take a wait-and-see attitude.”

It all depends on which part you want to pick and choose.

Posted By: Adam S | May 27, 2009 12:05 AM

I have a question for the so-called Conservative Evangelicals. What is wrong with Ms. Sotomayor being nominated for the highest court in the land? If it was your way, we would not have a black President, there would be no freedom of anything. It is time for the Conservative Evangelicals to let go and let God. Perhaps it is God's choice for Ms. Sotomayor to be a Supreme Court Judge. Perhaps it is predestination.

Posted By: Nancy Klintworth | May 27, 2009 6:53 AM

anyone who believes that their life experiences do not influence the the judicial philosophy and decisions of supreme court justices since the very first ones knows nothing of U. S. history, expecially the supreme court. Life experinece always have and always will influence.

Posted By: steve w | May 27, 2009 10:00 AM

I just hope that the Congress and Judicial Committee (if it slips by them) are faithful in their goal: to find someone who will interpret the Constitution. Ms. Sotomayor is not that person, and I am praying daily that she is not confirmed. The judges who construe the law instead of interpreting it have led us down some very dark paths. I believe that President Obama is looking for someone like him: one who dictates to the Congress laws what he wants--outside of Constitutional directives that say laws START in the Congress. I strongly believe that is what Sotomayor will do. Look at the Constitution in terms of what she wants, bends it or ignores it. Seeing that the country has few to no boundaries where morals and Christianity is concerned, I believe that we are now at the point where the Bible says in Matthew 15:14 that the blind will lead the blind into a ditch--and unfortunately, in this case, the spiritually sighted will end up there as well.

Posted By: Sandra | May 27, 2009 11:19 AM

I agree with Sandra. I grew up in a much better time then my grand & great grandchildren are today. Too much construing the Constitution now into what they want it to say instead of what IT DOES SAY. I pray that a much better person is elected for the Supreme Court. They are out there.

Posted By: Alice | May 27, 2009 1:28 PM

"Too much construing the Constitution now into what they want it to say instead of what IT DOES SAY"
when was that time when supreme court justices interpreted the Constitution by what it does say?

"The judges who construe the law instead of interpreting it have led us down some very dark paths."
I agree, like the Dred Scott decision and the Plessy vs Ferguson decision, the Japanese Internment decision and the decison that allows the supreme court to elect Presidents

Posted By: steve w | May 28, 2009 9:49 AM

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