Should a Woman be Named to Succeed Sandra Day O'Connor? What Her Own Opinions Suggest

By MICHAEL C. DORF

Tuesday, Jul. 05, 2005

The news that Sandra Day O'Connor, rather than William Rehnquist, will be the first Supreme Court Justice to retire on President Bush's watch, complicates the calculus for naming a successor. O'Connor's retirement leaves Ruth Bader Ginsburg as the only woman on the high court. And while one female Justice may have seemed sufficient when President Reagan took the historic step of naming O'Connor in 1981, today it is difficult to see why the Court should not, like the country whose laws it interprets, consist of roughly equal numbers of men and women.

Accordingly, President Bush and the Senate will likely feel some pressure to name a woman to fill O'Connor's seat. Is that pressure legitimate?

The considerations are complex, but we can find considerable guidance in some of the legal opinions Justice O'Connor herself has written.

The Long History of Naming Justices for Reasons Besides their Legal Acumen

Although the idea that the Supreme Court should reflect the gender diversity of the nation as a whole may be of recent vintage, the broader notion that criteria other than that of a candidate's legal acumen may be relevant, is as old as the American Republic. Most obviously, party politics has been a constant factor in judicial nominations and confirmation battles.

The Democratic-Republican Party of Thomas Jefferson campaigned constantly against the Federalist judges named by the predecessor administration of John Adams. Indeed, Jefferson's party tried--albeit with limited success--to change the law by naming Justices who would side with Jefferson's own more constrained view of national power.

President Franklin Delano Roosevelt was unable to persuade a Congress controlled by his own party to pack the Court by increasing its membership. Nevertheless, he had little difficulty transforming the law by appointing Justices in the ordinary course of over three terms in office.

And of course, party politics continues to matter a great deal to this day. No one expects President Bush to nominate a Democrat (unless he picks a mere nominal one like Zell Miller). It has long been true that Presidents and Senators alike consider party affiliation and ideology in, respectively, nominating and confirming judges.

From Party Politics to Regional Balance

There is, to be sure, an important difference between considering, on the one hand, politics and ideology, and on the other hand, factors like gender, in naming judges.

Politicians proudly and legitimately aim to fill the courts with judges who share their approach to interpreting the Constitution and the nation's laws. Although competition between ideological adversaries may lead, on average, to some measure of ideological diversity on the courts, no politician consciously strives for such diversity. We would be surprised indeed to learn of a conservative Senator who said to himself: "There are enough conservatives on the Court; I'll only vote for a liberal" (or vice-versa). In contrast, while ideological sameness is a goal openly sought, these days no one would openly seek a court made up of Justices alike in gender, race, or religion.

Thus, diversity considerations are importantly different from political ones. Yet diversity considerations, too, have a long pedigree. For most of American history, the key axis of diversity was regional. Presidents paid attention to the balance of Northerners and Southerners, Easterners and Westerners. (Former Supreme Court Justice William O. Douglas titled his autobiography "Go East, Young Man," and it made clear that his record as a public servant in Washington, D.C. was shaped by his early years in the state of Washington, on the other side of the continent.)

Ethnic and Racial Identity

In the Twentieth Century, as regional identity became relatively less important, ethnic, racial, and gender identity assumed greater significance in society, and thus in judicial politics.

Thus, for many years there was an unofficial "Jewish seat" on the Court. (Two members of the current Court--Ginsburg and Breyer--are Jewish, but neither appears to have been chosen with religion especially in mind. While Breyer formally occupies what had been regarded as the "Jewish seat," his immediate predecessor in it was Harry Blackmun, a Methodist.)

Although not routinely described in these terms, there now appears to be an African-American seat on the Court. President Lyndon Johnson named Thurgood Marshall as the first African-American Justice in 1967, and when Marshall retired in 1991, the first President Bush named another African-American, Clarence Thomas, to succeed him.

Given Thomas's very brief tenure as a federal appeals judge, many commentators dismissed Bush's description of Thomas as "the best qualified" person for the job as mere hyperbole--a transparent fiction designed to cover up the fact that a President who officially opposed the use of racial preferences for most jobs, was resorting to one in picking a Supreme Court Justice. (The fiction was doubly necessary because Thomas himself was an outspoken critic of race-based affirmative action.)

When Is Race Actually a Qualification for the Job?

Nonetheless, there is a sense in which Thomas really was the best qualified person for the job, at least from the perspective of the first President Bush. Understanding the sense in which this was true will shed light on the question of whether the current President Bush can legitimately treat gender as a qualification for the successor to Justice O'Connor.

We might begin by asking why race-based affirmative action is controversial in most contexts. The answer appears straightforward: If someone applies to be a carpenter, accountant, or cook, the applicant's race would appear to have no relevance to the job. We can judge the applicant's qualifications by the quality of his or her work. Giving a preference for members of traditionally disadvantaged minority groups--however justifiable as a response to past discrimination or on other grounds--represents a departure from the generally accepted principle that the job should go to the person best able to perform it.

In some jobs, however, race is not simply an added extraneous factor that distorts the otherwise meritocratic process. Race can be a qualification in itself.

Consider, for example, the job of a police officer whose beat consists of a largely African-American community that is distrustful of the police because of a history of racially charged incidents. Police officers who are able to gain the trust of the community will do a better job of keeping the peace and apprehending lawbreakers than will officers whom the community distrusts. Thus, if--as will frequently be the case--African-American officers more readily gain the trust of the community, then race will be, or at least legitimately may be, a qualification for the job.

How Judging is Like Policing

So, is being a judge more like being a carpenter or like being a police officer? Interestingly, different judges and Justices would likely give different answers.

Justice Thomas calls himself an "originalist." So does Justice Scalia. They believe that statutes and constitutional provisions should be construed by figuring out what the people who enacted them thought they meant. Now, if that's the job of a Justice, it's hard to see how race or sex could be relevant. To be qualified to be a Justice, one needs to be skilled at reading historical materials. Considerations of race or sex would simply be extraneous politics.

But most Justices are not thoroughgoing originalists, and certainly Justice O'Connor was not. Justice O'Connor thought the original understanding of any authoritative text was certainly an important starting point, but she typically considered also how that text might have changed over time through its application to new circumstances. She also acknowledged what originalists often deny: that where the law is unclear, Justices make value judgments.

Justice O'Connor never argued that her job was to substitute her values for those of Congress, the states, or other elected officials. Quite to the contrary, she sometimes chided her fellow Justices for doing just that, as in her dissent earlier this year in Roper v. Simmons. There, she argued that the majority had presented insufficient evidence of a national consensus that Americans deemed the juvenile death penalty "cruel and unusual."

Accordingly, for Justice O'Connor--as for the Justices with whom she disagreed in Roper--the task was not simply to enact her own values into law by judicial fiat. In construing a Constitution that limits majority rule, but does so through often open-ended language, Justice O'Connor tried to "channel" the deepest values of the American people--abstracted from the will of any ephemeral local, state, or national electoral majority.

Seen in this light, racial, ethnic, and gender diversity on the Court begin to look very much like qualifications for the job, rather than extraneous considerations. For it only stands to reason that nine men and women from different ethnic, religious and racial groups, from different parts of the country, and with different experiences, will do a better job deliberating about the values most deeply held by "We the People," than will a monolithic group.

Justice O'Connor's Own Warning: Appearances Matter

Yet if the Court should, on balance, reflect the diversity of the American people, there nonetheless remains something distinctly troubling about the idea that a retiring African-American Justice must be replaced by a new African-American Justice, or that a woman must replace a woman.

In the 2003 case of Grutter v. Bollinger -- a 5-4 decision that could well be overruled following the confirmation of Justice O'Connor's successor -- the Court upheld the University of Michigan Law School's program of race-based affirmative action in student admissions. Writing for the majority, Justice O'Connor found that the school had a compelling interest in a diverse student body. At the same time, however, she reaffirmed a longstanding prohibition on strict quotas or set-asides. Race could be a "plus-factor," but not the decisive factor, she emphasized.

As critics of this distinction have long noted, it is highly manipulable. If a sufficiently large plus is granted for race, then it becomes a de facto quota.

Nonetheless, Justice O'Connor adhered to the distinction between quotas and plus factors on the ground that, to quote her 1993 opinion in Shaw v. Reno, "appearances do matter." There, writing for a five-Justice majority consisting of herself and all the Justices who would later dissent from her opinion in the University of Michigan case, Justice O'Connor invalidated a bizarrely-shaped voting district that had been drawn with the clear purpose of maximizing the number of African-American voters contained within it.

Although Shaw and later cases allowed some consideration of race in the drawing of district lines, for Justice O'Connor, the obvious use of race--whether in admissions quotas and set-asides, or in the creation of voting districts--was beyond the pale.

Why? Among other reasons, because when race or sex is the obvious controlling factor in some decision--whether to admit a student to a law school class or to place a voter in one district or another--then the people who are the objects of the decision come to see themselves simply as representatives of their race or sex.

Hence, Justice O'Connor's opinion in the University of Michigan case approvingly described the school's goal of admitting a "critical mass" of minority students, which would ensure that no student would feel as though he or she spoke (or was compelled to speak) for the entire group.

The Bottom Line: A Doubled-Edged Sword

What does all of this mean for the President's decision whether to nominate a woman to succeed Justice O'Connor? The answer is unclear.

On the one hand, it is widely rumored that not a single woman's name appeared on the short list of candidates whom President Bush was considering nominating to the Court in the event that the Chief Justice retired. Under these circumstances, to nominate a woman would reinforce the troubling notion that O'Connor's is a "woman's seat."

On the other hand, failure to name a woman to the seat vacated by Justice O'Connor would mean that Justice Ginsburg would be the only woman on the Court, inevitably leading her seat to be regarded as the "woman's seat." It would then take even longer to achieve rough gender balance on the Court.

Perhaps the best solution is something like the compromise suggested by Justice O'Connor in the University of Michigan case. Noting that race-based affirmative action was never meant to be a permanent feature of university admissions, and that twenty-five years had elapsed since the Court had first approved the practice, Justice O'Connor expressed the expectation that in another twenty-five years, racial preferences would no longer be necessary.

So too, perhaps in the appointments context we should focus on the long term. We should hope and expect that by 2030, if not earlier, the Court's membership will consist of roughly equal numbers of men and women, rendering any talk of a "woman's seat" archaic. That would be a fitting legacy of Justice O'Connor's distinguished career.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.

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