Supreme Lack of Representation
This is not in any way a partisan concern, this is a legitimate concern for a balanced judiciary - well, at least a concern for keeping the current out of balance Supreme Court the way it is. If it can't get any better, we sure don't want it to get worse...
John Roberts, Bush's choice to succeed Sandra Day O'Connor, a swing vote on many issues such as Roe v Wade, may be better than a far, far right conservative (although the jury's still out), but he's still a man. His appointment would mean out of the nine justices, a whopping eight would be male. How can the voice of one woman, a Democrat no less, be heard through the din of eight men? The United States is over 50% women, but our highest court will be represented by one of nine. No matter what side of the fence you fall on, that is totally unbalanced.
John Roberts, Bush's choice to succeed Sandra Day O'Connor, a swing vote on many issues such as Roe v Wade, may be better than a far, far right conservative (although the jury's still out), but he's still a man. His appointment would mean out of the nine justices, a whopping eight would be male. How can the voice of one woman, a Democrat no less, be heard through the din of eight men? The United States is over 50% women, but our highest court will be represented by one of nine. No matter what side of the fence you fall on, that is totally unbalanced.
posted by Smorgasbord at 9:39 AM
31 Comments:
C'mon, Smorg. The job should go to the most qualified, not according to race, gender, religious, sexual orientation, etc., etc...
Of course, kudos for you! This is the first original thought I have heard from the opposition.
-Jack
No doubt the most qualified. But in situations like this there's ALWAYS an equally as qualified woman!
I agree smorg. Shouldn't the Supreme Court be somewhat representative of society? 50% of the people in this country are women and 50% of the people who vote are liberal, do they not deserve a voice?
Are you guys saying that in order to be "represented" one has to have someone from the same demographic?
Not exactly, Jack. But we're already giving so many concessions in the Supreme Court it's pretty ridiculous. If the 'most qualified' is truly to be chosen then the pool from which they are drawn should be vast a varied. How many Democrats do you think were considered for the job? Roughly 50% of the US is Democrat and only two justices are. And obviously none were even considered for the post even for a split second, despite their qualifications.
I think our winner-take-all two party system fails in many ways, but probably none so awfully as in the Supreme Court. I am a strong advocate for a woman's right to choose and I think that right is seriously in danger.
I understand where youre coming from, Smorg. I wouldn't let a single issue define a choice though.
I think the founders had a good idea though when they set up the selection process. It has stood the test of time for centuries.
What I am curious about is that Ginsburg, former ACLU lawyer and admitted liberal, was confirmed virtually unopposed. (98-2 I think). As was virtually every Clinton nomination (Reno, Cohen, Albright, etc.) , but any time a "conservative" is nominated by a Republican president the Democrats fight it tooth and nail (Bork, Thomas, Scalia, Gonzalez, etc., etc.) There certainly does not seem to be tit for tat in Washington, and it is my impression that Democrats want far more than they give.
Anyhow, just some thoughts. While I do understand what you are saying about representation, I don't think the job of the Supreme Court justice is to represent anyone--only the law and the Constitution. When it comes to a position so powerful, it is more important the qualifications than the demographic, and I think Roberts has an impeccable resume.
It will be interesting to see how this one develops!
-Jack
You're right that a justice's job isn't to represent us in the same sense that the president or congress does. The job of the Supreme Court is to interpret the laws that govern us, and interpretations can vary enormously depending on a host of factors. To me, the most important consideration in getting the best interpretation of anything is that the people involved aren't all thinking exactly alike (in business they call that "group think", which is bad). Diversity of background leads to diversity of thought. With seven of nine judges being conservative, eight of nine being men, and all nine being white (Clarence Thomas is whiter than Paulie Shore), where is the diversity of thought?
How many Democrats do you think were considered for the job? Roughly 50% of the US is Democrat and only two justices are.
Elections have consequences. When a Democrat is in office, a Democrat gets to choose court nominees. Same goes for Republicans.
I am a strong advocate for a woman's right to choose
HAH! What "right"? And what's the choice? "Hmmm, I'm inconvenienced by this baby in my belly. I think I'll just kill it." Nice "choice".
and I think that right is seriously in danger.
Good! Best thing that could happen.
Diversity of background leads to diversity of thought.
You're not a lawyer, are you. Who cares if they have diverse backgrounds? They are not legislators. Repeat that several times. Justices of the Supreme Court are there for one reason and one reason only: to determine whether the particular law before them is Constitutional or Unconstitutional. That requires one thing: A solid legal background.
Do you think a black woman lesbian sitting on the Court would interpret the property rights outlined in the U.S. Constitution differently because of her background? Cripes! Keep her away from the Court! We need someone who will interpret the law, not try to rewrite it because they're background leads them to feel a certain way.
The law is impartial. Your whole argument is for partiality to certain groups or ideas brought about by "diversity". That is a recipe for bad (legal) decisions.
Hi there. You're feisty, ain't ya? Why post under anonymous? Your views are welcome as far as I'm concerned and if you post with a user name we can build a relationship as the days and posts go by...
Any who, we obviously disagree here and there's probably no way we'll find much common ground, but I'll say this: what right to choose? It's a person's right to choose what they want to do their own bodies. If you had some sort of intestinal parasite I think we could agree it would be your RIGHT to remove it. If you had a benign tumor I think it would be your RIGHT to remove it. People donate organs - they have the RIGHT to remove those. A fetus cannot live on its own, it is 100% dependent on the body of the mother. Therefore a "host" person who has the right to remove anything else from her body also has the right to remove a fetus. It's simply common sense.
Now, you may be coming from a moral/religious point of view, and as such you may feel that abortion is murder. Unfortunately, moral/religious arguments are based in faith and personal preference, not fact or science, so they should have no place in defining law.
I hope you'll stick around and comment some more on this site. Maybe we can get to know each other and grow a little as people. No danger in that.
It's a person's right to choose what they want to do their own bodies.
It isn't the mother's body I'm concerned with, its the body and life of the child she is carrying.
Are you seriously trying to equate a human being developing inside the womb to an intestinal parasite? Holy crap on a stick! None of your analogies are any good. The difference between an intestinal parasite, a tumor, even organs and a child in its mothers womb is the same difference between you and any of those things. One is a human life, the others are not.
I love that "argument" that a human fetus is 100% dependent on the body of its mother and therefore it can be killed at will. Talk about completely illogical. A one day old baby is completely dependent on its mother, does that give her the right to cut it up into little pieces and flush it down the toilet if she decides she does not want it? Of course not. But just 4 weeks, even one day earlier, and that is her "right"? Just because the child is in her uterus and not in her arms? I guess real estate agents have it right, location location location.
It's amazing how a premie born 4, 5, even 10 weeks early is viewed - obviously - as a human being deserving of protection. Even you and other pro-abortionists have to hold that view. Yet that same child in utero with 4, 5, even 10 weeks left until birth has no rights? Get real.
Here's food for thought. As soon as the ovum is fertilized by a sperm, a complete set of human chromosomes is present and this "clump of cells" has unique DNA. It feeds, it grows, it develops, what is it if not alive? With nothing more than time and nutrition it develops into a newborn that will capture its parents hearts the moment it makes eye contact with them. So, knowing what that "clump of cells" will grow into, what is it? What is it if it is not a human life?
Don't even try the "viability" argument. That argument is lame. No person is "viable" in the sense that they can survive without major outside assistance for many years after birth.
It's simply common sense.
Actually, its nothing of the sort. Your argument is the farthest point from common sense there is.
Now, you may be coming from a moral/religious point of view, and as such you may feel that abortion is murder. Unfortunately, moral/religious arguments are based in faith and personal preference, not fact or science, so they should have no place in defining law.
Yes. My faith informs me that abortion is murder. But guess what? Keep faith out of this and your argument is still nothing. That fertilized ovum is still a human life. It still requires nothing more than time and nutrition to develop into the newborn that forces its way down the birth canal and out into the world, where at last it is protected - despite having left what should have been the safest place on earth for itself, and being surrounded by a myriad of external dangers.
Look into the science of conception and birth. Inform yourself as to exactly what you are discussing when you talk about that "parasite" living inside a woman's womb. Your statements indicate you do not know much at all about child development.
moral/religious arguments are based in faith and personal preference, not fact or science, so they should have no place in defining law
What an interesting concept. Morals play no part in law. Most of our laws are based on morals. Can you honestly say laws forbidding things like underage sex, and incest are not grounded in morality? In there most basic form, morals are the rules which prevent harm.
Most people instantly think of restrictions on sex when morals are brought up. Of course, we know that promiscuity greatly increases the chances of contracting a sexually transmitted disease - which nowadays can be fatal. The morals that instruct us not to be promiscuous therefore protect us.
Other morals protect our property. Stealing is considered "bad", which is why it is illegal. Stop and consider, it is not considered "bad" because it is illegal. Even children who don't know the law understand that it's bad when someone takes something that belongs to them.
When we talk of people like sociopaths, we say the don't know "right from wrong". We don't say they have no knowledge or understanding of the law. We discuss their mental/psychological problems in terms of their morals. They are not bad just because they broke the law, they broke the law because they are bad people with no concept of morality.
Morality informs, shapes, even defines most of our laws. To argue that morality has no basis in a legal discussion is laughable to pretty much anybody with a legal background.
Are Sean and anonymous the same person? If not I'm surprised (no offense to Mochi) that this many people are reading this blog.
You both(?) raise good points. I do object to the constant inferences that I know nothing about law, however. I prefer to keep my arguments about the issue and not the arguer. Besides, not that it matters, I work in a law firm and I do know a thing or two about the law.
We're never going to iron out our differences on an enormously complex and heated topic such as abortion (an issue that people have been debating for decades), but it's always refreshing to hear intelligent opposition. I truly thank you for that.
One last thing about the original point of this whole thing. We got sidetracked talking about abortion, but these comments are attached to a post in which I said there is a need for diversity of opinion on the Supreme Court. If anyone can realistically rebut that point I welcome it. Sandra Day O'Connor herself, while she thinks Roberts is a fine choice, is disappointed he's not a woman. "Even First Lady Laura Bush has said that she would like to see a woman nominated to take Justice O'Connor's place." Why would they say that if diversity was inconsequential?
Quoting Anonymous: Your whole argument is for partiality to certain groups or ideas brought about by "diversity".
I think I explained this adequately in a prior comment in which I said the Supreme Court interprets and interpretations can vary enormously depending on a host of factors. If nine people came across a document from colonial times in an antique desk drawer their interpretations of what the "meaning" was would likely be all over the map. That is why there are various schools of thought on how to interpret the Constitution; "originalist" and "activist" being the most frequently used labels.
Even if one claims to be an "originalist" they still have to maintain some "activism". It is silly to think that our founding fathers, as wise and forward thinking as they were, could possibly have known how to interpret many of the laws that we are governed by today. There was no plumbing, electricity, labor unions, mass transit, etc., let alone abortion, civil rights, and stem cell research. The country consisted of thirteen states and its population was a tiny percentage of what it is now. It was simply a different world. If it wasn't for "activist" interpretations of laws throughout our history our country would be a radically different place.
Thanks for the attribution, I think. But I've never had a problem posting under my own name.
If nine people came across a document from colonial times in an antique desk drawer their interpretations of what the "meaning" was would likely be all over the map.
If you wanted an accurate interpretation would you ask the first nine people you met? That would certainly cause you to receive 9 vastly different interpretations as to meaning. However, if you want accuracy you search out 9 people with knowledge and training in interpreting colonial-era documents. Their training would be the same. And ideally, their training would teach them to interpret the document without bringing in extraneous personal belief-systems.
There was no plumbing, electricity, labor unions, mass transit, etc., let alone abortion, civil rights, and stem cell research.
The founders were wise enough to delineate the specific areas in which the Federal Government has authority, leaving all else to the States. Leave "activisim" to the states. Except where the U.S. Constitution gives the Supremes original jurisdiction - a very limited number of areas, the Court's only role is to decide whether a law violates the U.S. Constitution.
Yes, the court's only job is to decide whether a law is constiutional or not, that hasn't been disputed. Perhaps I was being unclear. That's what I meant by interpret - interpret the law's constitutionality.
I still contend that, regardless of training, people can and will arrive at different interpretations. I am trained in a number of areas but I would never expect someone who has had the same training to arrive at the same conclusion.
Well, the U.S. Constitution is not some esoteric ancient text dealing with mysticism written by a forgotten civilization. It was meant to be concise and straight forward. And it is. There is very little real "interpreting" that needs to be done with it. Only when justices want to make up rights that never existed do we find ourselves watching judicial gymnastics regarding interpretation.
Diverse backgrounds cannot change what was included in the Constitution. All they can do is provide the creativity and motivation to "find" things that aren't really there.
then why is there more than one judge on the supreme court?
Chickenhawk makes an excellent point. If constitutional interpretation is so cut and dried why is there a need for more than one interpreter? It doesn't take nine mathematicians to tell you what two plus two is.
Also, I have to point back to my prior comment where I quoted both O'Connor and Laura Bush as preferring a woman. There's really no denying that different people will interpret "constitutionality" differently.
We at least need someone who can read english. Do you think Souter and Ginsburg interpreted correctly when they did the socialism gig by eliminating private property rights?
-Jack
That seemed like a bad decision to me, but I'm no Supreme Court justice. The fact that the decision can be debated, however, is further proof that it's not a black and white business. We really need a range of vantage points on the bench.
I see your point, Smorg. I just have difficulty with the concept of discriminating due to gender, race, etc. So for this one, I would have to say that the job should go to the one thought most qualified.
Good post, and good discussion!
-Jack
Adding this might make this the longest comment string to date on NeoLibs, but what the hey - I just want to address Jack's point real quick.
We're pretty much on the same page, there's just a familiar thread of doubt in there that I have seen many times when I have discussed "equal opportunity" (gasp!).
It's ALWAYS about the most qualified, period. Whenever I bring up that a minority or a woman could have gotten X position, people will inevitably grumble and say "it should go to the most qualified". Obviously it should. The issue is that many times when choosing from EQUALLY QUALIFIED candidates, people tend to go with the familiar. It's a natural reaction. But it's a proven model in business and government that you're better off (again, when the candidates are EQUALLY QUALIFIED) going with the "diverse" choice.
I would not for a second expect Bush to nominate a liberal, or even a moderate. Obviously I would prefer it that way but hey, I voted for the other guy. I fully expected him to nominate a right-winger. However, I GUARANTEE there is an EQUALLY QUALIFIED right-wing woman out there. Definitely. I commend Bush for, when he was putting his first administrations together, finding a right-wing black woman. That must have been a tough hunt but he did it, and most conservatives like Condi. Job well done, Bush. (How many times have you heard me say that?) If he had chosen an EQUALLY QUALIFIED woman, he would of looked better across the board, and we'd have a better Supreme Court for it. O'Connor and the first lady would have been happier too - they've said it themselves.
I see where you're coming from, Smorg. I think in the case of Roberts Bush has put out a candidate that will be hard for anyone to buck. There's not a lot of controversy there, and if you look at Shea's list, it seems like they are grasping for straws on this guy. Top-of-his-class Harvard grad, 100% confirmation to federal court--its going to be difficult to sideline him, and I think that is the logic behind Bush's choice.
We'll see how this one develops and I look forward to NL's next post on it!
-Jack
Chickenhawk makes an excellent point. If constitutional interpretation is so cut and dried why is there a need for more than one interpreter? It doesn't take nine mathematicians to tell you what two plus two is.
How about because that's the number Congress determined? You might not consider that a good enough reason, oh well.
How about because the Court has jurisdiction over numerous cases. You see, when it comes to the Constitution, the Court's only purpose is to determine whether a particular law is constitutional. They have what's called "original jurisdiction" over many other types of cases. It's all right there in Article III, Section 2.
This from the Davenetics blog: and I think it's exactly right ..
The latest micro-battle when it comes to the Roberts Supreme Court nomination process is over access to past tax returns. This will, of course, just be one small element in several days or weeks of positioning and politicking.
But the details of this nomination (and let’s be realistic, its a go, period) are really just a story within the broader story of this era.
So what’s the big story? It’s the one many of us don’t want to think about, much less accept: One can easily make the argument that we are one robe away from seeing battles we thought were long over, reopened, refought, and resulting in very different outcomes.
Prayer in schools. Come on, we’ve been there and done that right? Debates over the teaching of evolution in school. Wait, am I watching Fox News or a remake of Inherit the Wind? What’s next, restrictions on free speech based on the split second unveiling of a nipple belonging to an android pop star?
Cultural questions that many Americans assumed were asked and answered years if not decades ago are back in a big way.
One side assumed these debates were over, and they stopped fighting. The other side didn’t get the memo and they are running at a full sprint right now.
The broader issue is not Roberts, but rather that the cultural and intellectual issues many thought were on solid ground are actually hanging by a thread.
Cultural questions that many Americans assumed were asked and answered years if not decades ago are back in a big way.
Like slavery once was asked and answered; like "separate but equal" was once asked and answered; like forced internment of Japanese Americans was once asked and answered. Yet all these were revisited - and with very different outcomes.
Oh - but you agreed with the revisted outcomes, so you don't think it was a problem. Right? Hypocrite.
Sean:
My point was somewhat different. I was agreeing with the point the blogger made that progressives fell asleep at the switch, thinking that once the outcome had been decided in our favor that it would always been that way. I blame ourselves for failing to fight within the democratic structures we have to preserve the moral values of tolerance, inclusion, and personal freedom that we believe in.
We kept fighting for civil rights, even after slavery was abolished, even after Brown vs Board of Education. We came to understand that American concentration camps were unworthy of our ideals. And yet today, because we have stopped advocating effectively for our beliefs, civil rights are being eroded, internment without oversight increases, and secular values such as a woman's right to choose are threatened by the particular religious beliefs of a motivated minority.
Eternal vigilance IS the price of freedom.
And, on another note, I have always felt that respectful dialogue is one of the hallmarks of this site. I'm disappointed at the personal attack.
internment without oversight increases
What? Are you talking about Gitmo? Here's a little clue for you - free of charge - the people being held at Gitmo were captured on the battlefield. That makes Gitmo a prison camp, not an internment camp. Two completely different things that cannot be compared. And everyone at Gitmo has had a hearing regarding their combat status and the chance to argue they were not engaged in combat against U.S. troops.
secular values such as a woman's right to choose are threatened by the particular religious beliefs of a motivated minority
What is the woman's choice? I like the euphemism "end an unwanted pregnancy". Let's look at that a little more closely. What exactly is a pregnancy? It's when a human being develops over a period of months inside its mother. So the "choice" you want women to be able to make is to kill their child. Some choice. People with some common sense and morals don't need religious arguments to be against abortion.
And, on another note, I have always felt that respectful dialogue is one of the hallmarks of this site. I'm disappointed at the personal attack.
I'm not surprised, the truth can hurt. You go on and on about how you have to keep fighting for your beliefs, even after the Supremes make a bone-headed decision (like Roe v. Wade) yet you come out saying that Roberts will cause terrible things to happen - primarily because he might help overturn one of the worst instances of jurisprudence since Dredd Scott - and you don't think you're a hypocrite?
Well, in regards to personal attacks, Sean is kind of a douchebag. If you do not want to be attacked by him, you will have to agree with him.
This is interesting:
He's a scholarly man; he has a good education; he has been recommended by legal authorities; he has a good record in lower courts." – President Bush
"This decision had the advantage of being acceptable to conservatives, plus Democrats won't be able to attack him. There is nothing to grab a hold of, to whack him on." – An administration official
"Virtually every conservative who knows him trusts him and thinks he's a competent guy." – Newt Gingrich
"[He] has voiced opposition to many forms of abortion. He dislikes affirmative-action programs, contending that they amount to reverse discrimination. Also, he has vigorously defended ... the Lord's Prayer in its public schools." – Los Angeles Times
"He is a remarkable intellect and he's had great experience and he's had wide knowledge, and you all would enjoy an evening or more with him." – C. Boyden Gray
"This guy is a complete S.O.B. of a conservative and you can't prove it." – P.J. O'Rourke
"When you look at the man's record, his experience, his integrity and his ability to deal with tough questions of law in a way that the courts should, in a restrained way, not to attempt to legislate from the bench, I think he's a man in tune with the times." – Dick Thornburgh
"His view is: 'Here's what it says state government can do – and if it doesn't say it can do it, then it can't do it.'" – Lawyer who argued cases before the nominee
"[He] seems to be a judicial conservative, what we call a constitutional constructionist. ... That's satisfactory with us, if that's true." – National Right to Life's John Willke
"He is a 'stealth nominee.' ... The right's not yelling; the left is trying to yell but can't find much to yell about." – Bob Beckel
"This is a home run." – President Bush's chief of staff
Think the above was about Roberts?
Read the rest of the article:
He is David Hackett Souter, only the most recent reason Republican presidents – especially Republican presidents named "Bush" – have lost the right to say "Trust me" when it comes to Supreme Court nominations.
The other reasons are: Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O'Connor and Anthony Kennedy.
Like John Roberts, Souter attended church regularly. Souter was also touted for his great intellect. He went to Harvard! And Harvard Law! (Since when does that impress right-wingers? So did Larry Tribe. It is one of the eternal mysteries of the world that liberals are good test-takers.)
At least when Souter was nominated, we needed a stealth nominee. The Senate was majority Democrat back then. The Judiciary Committee consisted of eight Democrats and six Republicans – two of whom were aggressively pro-abortion. A year later, faced with the same Democratic Senate, the current president's father nominated Clarence Thomas. Who would have thought the current Bush would be less macho than his father?
Roberts would have been a fine candidate for a Senate in Democratic hands. But now we have 55 Republican seats in the Senate and the vice president to cast a deciding vote – and Son of Read-My-Lips gives us another ideological blind date.
Fifty-five seats means every single Democrat in the Senate could vote against a Republican Supreme Court nominee – highly unlikely considering some of those Democrats are up for election next year – along with John McCain, Arlen Specter, Olympia Snowe, Susan Collins and Lincoln Chafee. We would still win.
Of course, it's possible that Roberts will buck history – all known human history when it comes to the Supreme Court – and be another Scalia or Thomas. (And we'll hear this news while attending a World Series game between the Cubs and, oh, say ... the Detroit Tigers.)
That will not retrospectively alter the fact that Bush and all the other Zarathustra Republicans cheering for Roberts haven't the first idea what kind of justice Roberts will be right now. They are telling us their hopes and dreams.
I share their hopes and dreams! I also hope it doesn't rain in August. I'm not throwing out all my umbrellas, and I won't be "proved wrong" in that decision even if the rain never comes. This is a fact: Right now, we don't know.
Republicans are desperately trying to convince themselves that Roberts will be different because they want to believe Bush wouldn't let us down on the Supreme Court. Somewhere in America a woman is desperately trying to convince herself that her husband won't hit her again because he told her "things are going to be different this time." (And yes, that woman's name is Whitney Houston.)
Bush said "Trust me," and Republicans trust him. It shouldn't be difficult for conservatives to convince themselves that Roberts is our man. They've had practice convincing themselves of the same thing with Warren, Brennan, Blackmun, Stevens, O'Connor, Kennedy and Souter.
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