If this is the best argument she can make, then maybe it's best to be gender neutral in choosing our Justices.
WASHINGTON — Three years after Justice Sandra Day O'Connor left the Supreme Court, the impact of having only one woman on the nation's highest bench has become particularly clear to that woman — Ruth Bader Ginsburg.
Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.
"They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
This year, for CLE credits, I volunteered to judge moot court arguments for my law school alma mater, which was hosting the tournament with a fact pattern remarkably similar to the one Justice Ginsburg is addressing above. Being Madison, many of my fellow judges on our 3-panel sessions leaned extremely left. They could not believe -- under the fact pattern given -- that a young man would be required by a school to strip down to his skivvies in front of a male gym teacher, after the school had what it considered evidence of his possession of illegal prescription drugs.
It was one of those fact patterns written where it could go either way. I had fun with it, and was impressed by a team from Texas where the law student had the unenviable position of defending the school's actions. I hope I gave him good feedback; he made it into the finals. What distinguished his arguments, in my eyes, were that he showed how it
could be in the schools' best interests -- given that this fact pattern showed an extreme drug problem -- to try and protect their students this way. (The law student pointed out the school had concern the young man in the fact pattern was selling/distributing to other students at the school, not just possessing on school premises himself). At the very least,, he argued, school officials were acting in good faith and weren't intentionally strip-searching for their jollies, as some of my fellow judges on the panel implied.
Back to Ginsburg: I am a woman. Was once a 13-year-old girl too. But the results of my girlhood spin me in a different direction than Ginsburg assumes all women would somehow relate to here. Was the girl here embarrassed? Sounds like it. I think a guy judge could understand that too. And as a woman, I also could see -- as one of the male justices referenced in oral arguments -- how kids have to expose themselves in gym class everyday. Nobody likes to be accused, and I'm sure a sitution like that girl experienced was not fun.
But to act as though the law turns on a girl's right to be free of embarrassment... No. Let's stop this bean-counting before we even start down those paths. If personal feelings are going to get even more involved, and this case is being used as evidence for why womanly representation is needed, it's just stupid.
Let's look to see if a previous judge does good work, in terms of how many of their decisions are reversed. Let's judge merit not based on gossip, but on their track record. (assuming you've got a judge with a track record up for nomination.) Let's not have them pull down their pants to show us their qualifications for the Highest Court in the Land. (using related case detail, for metaphor).
Man think; woman think; Hispanic think; African Ameican think; Pacific Islander think ... the more we divide ourselves up based on bogus classifications that were created by bureaucrats to satisfy record-keeping at a time when affirmative-action non-discrimination policies were deemed essential, the more mediocre we get. Besides, our category overlap is rendering such bean-counting irrelevant, in terms of the race/ethnicity/religion, not gender, categories anyway.
Who said that the Court is supposed to be the representative branch anyway? -- that's the Legislature, where citizens can decide for themselves if they want to divide their votes up that way for protection/advancement of a particular group agenda. I've been reading things lately -- the Catholics are overrepresnted on SCOTUS; Jews too! -- based on someone thinking they are being scientific matching up population numbers with the percentages of the 9 Justices. And calling for "an openly gay justice" -- as though only that will bring "fairness" to the judging process when such cases present themselves...
The election of President Obama, no matter what the eventual consequences, proved the numbers wrong. That should steer us
away from a paint-by-numbers idea of representation through bean-counting, and free us up to determine whose judicial judgment will eventually prove most beneficial to the country.
Country before Identity Group -- one of most lauded characteristics of the non-volunteer military, I've heard. Sports lockerrooms and playing fields -- other arenas where a colorblind policy seems best for the game as a whole. Ditto with gender on the intellectual playing fields.
I truly believe that male judges and justices can be empathetic to issues that affect both women and men, just as I think women are quite capable of thoughtfully reasoning to conclusions about what we might consider traditionally masculine topics, like business or professional baseball. Right or wrong, it's the track record of how the thinking holds up that matters, not the "difference" style points that might garner attention in the short run, but for all the wrong reasons.
And just so liberals don't complain that I am unfairly criticizing Justice Ginsburg here, I'll note that Justice O'Connor -- who was appointed to fulfill President Reagan's campaign promise; a promise I don't think President Obama is on the record as having made -- isn't very well thought of for either the clarity or consistency of her jurisprudence either. Does that help women then, choosing on the sake of numbers over qualifications to excel in the job? I vote no, but then, I don't get a vote in this branch and am relying on wiser minds to reason through this as well, to reach a non-pre-ordained outcome.
If a woman is the best player for the country at this time, then by all means, let her have at it. But if there is another proven player more ready and more capable of producing solid results in all aspects of the game, it would be a shame that his inexperience at ever having been a 13-year-old girl would keep him off the Court.
For the record again, I've been there. Of all the formative life experiences that have contributed to intellectually shaping who I am today (Northwestern Medill, moving to South Florida, law school), I must say, that brief taste of pre-adolescence really ranks low on the list. To her credit though, for Justice Ginsburg and many of the women law professors insisting this is a woman's seat on the Court, they came up in different, more difficult times, no doubt. But it's not just a hippie Dylan song anymore: the times do change, for the better, and remedying the wrongs of the past by asking for unfair set-asides based on personal characteristics, ironically that would set "equal opportunity/equal rights/no special privileges" arguments
back.
Women coming up today just are not dependent on the special categorizations like that, and amongst post-Boom, Title-IX raised women, most probably would prefer to advance based on the quality of their work, and not the fact that past traditions and discriminations left women underrepresented as judges or law professors, say, who needed to be called up quickly before they had a chance to establish themselves based on their work over their primary "womanhood".
"Let them play" -- the reality under the 1972 law -- fosters a much different mindset among these younger women, who came up as athletes understanding that sometimes you lose the game, there are no guaranteed number of victories doled out per season, and you advance through competitive play. Equal opportunity, not equal outcome. Which makes the true victories even sweeter
It might be hard to accept the skewed numbers at first, but:
Life is hard like that, and I can see where some women might be reluctant to give up their special "women charms", which in the right hands and played deftly, nobody is arguing can't also advance a woman's career. But for the game to advance, you really do need the best players out there.
Finally, to address those who would say an 8 to 1, or even another 9 to 0 team makeup means that anit-female sex discrimination is necessarily occuring... nonsense. If you look at the timeline, the numbers of women attending law schools in measurable numbers only began in the recent past, and many of those potential judicial candidates were snapped up in the academy, as commentators or political players, or pulled in other directions based on family needs. Rare is the female candidate who has sacrificed like Justice Souter to pursue his craft, and now some even try to spin that, as though a working knowledge of Jon Stewart's America or a weekly does of American Idol were somehow necessary to rule "in the real world."
In years to come, if we contine to pursue the most meritorious candidates based on their work results and not lifestyle considerations, there will be an ever greater pool of candidates with solid records of having worked their way up -- now that the traditional discrimination is being removed against minorities of all stripes, of course some with the self discipline, talent and willpower will stand out as the most obvious choices.
That's when we'll know we are there, just as surely as the unnamed source citations, sexual rumours, and pre-ordained claims that this seat belongs to this group or that turns our stomachs today because we know, something is not right with this process. And unlike sausage-making, we have a duty not to turn away.
