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