Imagine a group of nine people with the power to determine key issues in men's lives, and only one of them was a man. Wouldn't that seem to be unfair on its face? Men are 50 percent of the population, so how could a court constituted of 8 women and 1 man have the moral standing to dispense justice when its membership is so grossly unrepresentative? This is especially unfair given the large number of both men and women who have graduated at the top of their law school classes, served in prestigious clerkships, held important legal jobs, and served as judges in federal and state courts.
Looked at another way, African Americans were defined in the Constitution in 1789 as 3/5 of a person. That was an outrage that was addressed in 1865 when the "3/5ths" clause was rescinded. If women were to occupy their fair share of Supreme Court seats, they would have 50% or 4.5 of the 9 seats. Instead, they occupy 2. Two divided by 4.5 is 44 percent or approximately 2/5. If it is a moral outrage to reduce the legal status of African Americans to 3/5 of a person, why are we meekly accepting a world where women have only as much voice on our highest court as 2/5 of a person?
Worse yet, if Justice O'Connor is replaced by John Roberts, women will have the judicial representation of 1/5 of a person on our nation's highest court. This is the very definition of injustice, not justice.
It is a sad irony that Chief Justice Rehnquist's death happened at the same time as the deaths of so many of the poor and minority residents of New Orleans. Although he was admired by many as a formidable legal intellect as well as an amiable colleague, he started his legal career standing at polling booths in Arizona trying to keep African Americans from voting and wrote approvingly of the "separate but equal" Plessy versus Ferguson opinion of 1896 that was overthrown by Brown v Board a half century later.
Rehnquist supported the World War II internment of Americans of Japanese ancestry, despite proof that the military's claims of a "military necessity" for that unjust act were unjustifiable, even at that time, and supported legal theories that forced those seeking justice for racial discrimination to prove that their plight was caused by a virtually unprovable "intent to harm" standard. The two Americas we saw on display in New Orleans, and the difference in how whites and blacks, rich and poor were treated are the unavoidable outgrowth of the "Even if discrimination is obvious, you still have to prove it" strategy of malign neglect supported by Rehnquist, Bush and the GOP establishment.
John Roberts, who served as a law clerk to Rehnquist, is a judicial activist in the same mold as his mentor. President Bush and the media have portrayed him as a likeable man with credentials as good as anyone now on the High Court. He certainly deserves his chance before the Senate to say why he should be named to the Supreme Court, but not until at least three women have joined Justices O'Connor and Ginsberg on that exalted bench.
Without addressing John Roberts's judicial philosophy or any other issue concerning him, the Senate should politely ask that President Bush withdraw his nomination and instead nominate qualified women to fill the two Supreme Court positions that have come open.
Because the Roberts nomination is to be discussed in the Senate this week, several questions might be raised by those who do not want President Bush to withdraw John Roberts from consideration, such as:
- Isn't it discrimination to require that women fill the two vacant High Court seats? No, not at all. The events that have transpired up to today, where two women serve on the High Court, can be seen as a sin of omission. To appoint yet another man when the disparity between women and men on the court continues to be so great would be a sin of commission. We cannot undo every bad thing that has happened in the past, but we can start to undo past injustices by affirmatively doing the right thing in the present. Objectively speaking, there were not enough women with the requisite credentials and experience to be High Court justices in 1981, when Justice O'Connor was appointed to the bench, because past discrimination had held back many talented women, including Justice O'Connor herself. Today, there is no excuse. President Bush can find hundreds of women of all political backgrounds with the requisite resumes, experience, and temperament to serve our nation well on the High Court. To say otherwise is dishonest.
- Isn't is discrimination against John Roberts to ask him to wait until several women take their seats? The story of this nation is that most of us pay for all we get but don't always get all we pay for. Generations of women lived and died without getting their chance. Unlike them, however, Mr. Roberts is still 51, so he should have more opportunities to reach the High Court in the years ahead.
- If we open this door of quotas for women, will we then require exact proportions of justices to match the population as a whole? With our Congress currently only 14% women, one of the lowest percentages in the democratic world, we should be worrying less about when perceived unfairness stops and more about when real fairness begins. In his "Letter from a Birmingham Jail," Rev. Martin Luther King, Jr. reminded us that, "Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals."
- Given that the Supreme Court term starts on October 3rd, shouldn't we just go ahead and discuss the merits of the Roberts nomination and wait a bit before nominating a woman? Given the hundreds of years that women have waited for fair representation, we can wait a few more months and start to see a High Court that is slightly more representative of the 50% women in our land. As Dr. King said in that same 1963 "Letter from a Birmingham Jail": "I have yet to engage in a direct-action campaign that was 'well timed' in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word 'Wait!' It rings in the ear of every Negro with piercing familiarity. This 'Wait' has almost always meant 'Never.' We must come to see, with one of our distinguished jurists, that 'justice too long delayed is justice denied.'"
- What if the women President Bush proposes for the High Court have positions that are as bad for the rights of women as his male appointees? Those issues will have to be addressed during the Senate confirmation process, like anything else. Incidentally, look back at the criticisms made of Justice O'Connor before and during her confirmation process in 1981 and you will see how different a person can be once they have ascended to a lifetime appointment on the High Court.
While we need a confirmation process that requires the support of two-thirds of the Senators, to assure that ideologues of both the right and left do not get elevated, we can do better today than to appoint yet more males to the High Court when women are so grossly underrepresented. Women have the right to hold a diversity of opinions, and this diversity should be represented on the highest court in the land.