On the campaign trail last October, then-senator Barack Obama swore that he wouldn’t apply a litmus test to any potential Supreme Court nominee. With the announcement of Associate Justice David Souter’s resignation from the high court, however, a flood of liberal interest groups have rushed to apply such a test for his replacement, clamoring for the nation’s newest justice to be a woman, a minority, or both. Conservatives have been in the thick of it, too, railing against activist judges, but with an impending filibuster-proof majority for the Democrats, the demands on the left have much more relevance.
Within hours of Souter’s announcement, interest groups and Democratic factions were chomping at the bit. The Congressional Hispanic Caucus sent an open letter to the President urging an active search for a qualified Hispanic candidate, while the National Organization for Women (NOW) launched a petition demanding that another woman be appointed to join Ruth Bader Ginsburg, the Court’s sole female. As the White House’s search continues, more and more groups are entering the fray: Most recently, gay-rights activists have been campaigning for former Stanford Law Dean Kathleen Sullivan to become the nation’s first openly gay Supreme Court justice. Meanwhile, news media and pundits alike have made themselves busy declaring that Obama’s pick will be––and moreover, must be––a female or a minority, no doubt placing further pressure on the President to make such a selection.
Amidst this sea of advocation and speculation, interest groups have lost sight of the fact that selecting justices in order to assure minority representation on the bench is a flawed method. Groups have framed their arguments in terms of both diversity and perspective, griping about the Court’s traditional status as a lily-white old boys’ club and arguing that it is invaluable to have a woman’s insight on women’s issues, or a minority insight on minority issues. Both approaches prove problematic.
Admittedly, both the current and historical compositions of the Supreme Court reveal an embarrassing lack of diversity. In a legal profession where women make up a third of all lawyers and half of all law students, the fact that there is just one woman on the bench proves troubling. The same can be said for an institution that includes only one racial minority among its ranks, and has never counted a single Asian or Hispanic as one of its members. Yet however unfortunate this reality is, when nine men and women are charged with guiding the judicial branch of the United States, the power and responsibility placed in the hands of each individual justice is simply too great to select anyone but the most qualified candidate, no matter what his––or, it seems, her––race or gender happens to be.
Furthermore, as interest groups clamor for a candidate of their liking, “perspective” is actually code for a justice who shares their own political philosophies. Women’s groups are praying for a sure “no” vote on any possible overruling of Roe v. Wade, while Hispanic groups have a vested interest in immigration legislation and voter ID laws. If you think that women’s rights groups care most about having a female perspective on the Supreme Court, try to imagine the party they’d throw at NOW headquarters if Obama appointed a woman who disagrees with Roe and does not believe in an implicit Constitutional right to privacy.
This is the real problem with the pressure the President has been receiving as he formally begins his vetting process: not the push for a woman or minority justice, but the idea that candidates for the bench must, in advance of their appointment, hold strong opinions on controversial legal issues and be willing and able to speculate on how future cases should be decided. The lifetime appointments of the Court’s members exist in part to insulate them from the political climate, and to ensure that the nation’s guiding legal opinions are grounded as much as possible in solid reasoning and not the inconsistent whims of public opinion and popular sentiment. The best justices should base their decisions on the facts at hand in any case, and not approach cases with group allegiances, steadfast political opinions, or unwavering judicial philosophies.
In explaining his criteria for Souter’s replacement, the President has shown a willingness to find such judges. He said that he’s seeking a jurist with a “sharp and independent mind,” hopefully recognizing that justices must separate themselves from politics and factions in order to arrive at the most just conclusion. Obama seems to be keeping an open mind in his quest for the best possible candidate, and interest groups on the left should, too.
Chris Boots is a third-year in the College majoring in Law, Letters, and Society. He is a former Sports Editor of the Maroon.