Let's quickly review what President Obama said on Friday, when he framed the qualification criteria for his first Supreme Court nominee: "I will seek somebody who understands that justice isn't about some abstract legal theory or footnote in a casebook. It's also about how our laws affect the daily realities of people's lives - whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their nation." (Italics are mine.)
Indeed, Obama has been consistent about this. In a Detroit newspaper interview last October, the candidate said that while he would seek a high court nominee who believes in "fidelity to the text of the Constitution," he also argued that, to be an effective jurist, "you have to look at what's going on around you and not just ignore real life."
This is why I'm convinced that he intends to nominate a woman.
I recently heard about a 1982 book entitled In a Difference Voice, written by a psychologist named Carol Gilligan. She contended that female legal reasoning differs from male legal reasoning; that men typically view the law as comprised of fixed rules and abstract principles, whereas women are far more likely to consider the broader circumstances of real life - what the author called the "ethic of care."
Granted, no study has ever conclusively proved that female judges in their rulings are more touchy-feely than men, but what I sense about Obama is that, at the very least, he believes the high court would benefit from the addition of a judge whose life experience differs greatly from those of the sitting brethren.
Which, again, argues for his picking a woman to replace David Souter. As well he should. It's time.
The cynical argument is that Obama owes women for his election, big time. Women - as always, the majority gender on election day - chose Obama over John McCain by 13 percentage points (56 to 43), thus turning a nail-biter into a comfortable seven-point victory. And, in political terms, I could argue that since Obama was actually the second choice for the millions of Democratic women who favored Hillary Clinton, he still needs to prove his bona fides.
But picking a qualified female court nominee is actually just about correcting for an historic pattern of underrepresentation. It's simple logic - and gender justice.
Counting back to the dawn of the nation, the composition of the U.S. Supreme Court stands at 108 men and two women. Starting in 1920, when women actually got the right to vote, the tally of nominees is 29 men and only two women (unless you count Harriet Miers, the Bush nominee/crony who never made it to the confirmation hearing stage, largely because not even the conservatives could stomach her lack of qualifications.)
I could simply say that this historic gender disparty doesn't jibe with the reality that the female gender is actually America's majority gender. But it's more valuable to point out that, in terms of gender representation, the high court (currently 11 percent female) is far less diverse than federal bench in general (women now comprise roughly 25 percent of all federal district judges, and roughly the same share of all federal appeals judges). An American Bar Association study, completed last year, also reports that 45 percent of all associates in private law firms are women, that 32 percent of all lawyers nationwide are women. And, for the first time ever, there is virtual parity farther down the pipeline: roughly 50 percent of all the current law students are women.
Beyond the urgent logic of diversifying the high court, the nomination of a woman could also help Obama during the often-treacherous confirmation process. It's hard to imagine that the Senate Republicans would try to filibuster any female nominee who has the requisite legal qualifications - particularly if that female also happened to be Hispanic (federal appeals judge Sonia Sontomayor, who grew up in a New York housing project and would naturally bring a new experiential perspective to the court).
As noted in this space yesterday, the GOP is already saddled with the image of a regional white guy party, and Republicans would be further damaged if they were perceived as obstructing a qualified female who would be only the third member of her gender to join the court since John Jay was sworn as a justice in 220 years ago.
During the past few decades, Supreme court nomination battles often have been tempestuous. But - at the risk of being proven wrong later - I'll suggest that unless the Obama taps a woman with serious qualification problems, the usual fireworks will not materialize this time. The conservative interest groups will raise money and kick up a fuss (they've already begun the fundraising, without even knowing who the nominee is), but in the end, it's hard to envision that the Senate Republicans will have the votes to say no.