As the hearings for John Roberts get underway, let's start with the elephant in the living room. Why did Bush nominate a man to Sandra Day O'Connor's seat? Yes, Roberts now is slated to replace Rehnquist, but that was not Bush's intent. He was intentionally trying to lower the already unrepresentative number of women on the High Court. And we were going to go along without a wimper.
Rather than agreeing to a debate within the GOP's "unfair identity politics" frame, we should start today's hearings by asserting the "fundamental fairness" frame. In the 24 years since Justice O'Connor was elevated to the Supreme Court, tens of thousands of women have gone to law school, hundreds have reached the pinnacle of their profession as judges/professors/litigators, and dozens are as qualified as any of the nine people currently gracing the High Court bench. Bush needs to hear that we are disappointed that he did not appoint a woman, and that we expect that the second of his two appointments will be a woman (not "torture" Gonzalez or other male neocons). [more on the flip]
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 That was an outrage that was addressed in 1865 when the "3/5ths" clause was rescinded.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 a man, then 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.
The events that have transpired up to today, where only 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 dozens of women of all political backgrounds with the requisite resumes, experience, and temperament to serve our nation well on the High Court. We can ask hard questions of the women whom he decides to nominate (and we can guarantee more moderate justices of all genders by pushing for a 2/3 vote standard in Supreme Court Senate votes), but we must push hard to remind the country that Bush and his "compassionate conservatives" have once again given only lip service to the second class status women have had in many professions, including the legal profession.
Is now the "right time" to press for more women on the High Court or even begging to keep the two women we currently have on the bench? As Dr. King said in his 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.'"
We have only 14% women in Congress despite thirty years since the modern feminist movement. We are way behind all of the other modern democracies in our promotion of women in our country's political life, so we must do more.
Reminding President Bush of his obligation to promote a woman to Justice O'Connor's seat is a good place to start. Let's change the frame from "unfair identity politics" to "fundamental fairness."