Talking Points Memo links to this comment from GOP pollster Kellyanne Conway:
Can you imagine any of Obama’s nominees being treated the way that Sarah Palin and her family were treated by the media? It’s “interesting,” as they say in Washington. Gender and class ended up being a huge obstacle for one person, and they’re likely to be a huge boost to this person that Barack Obama selects.
I absolutely can imagine how a Supreme Court nominee would be treated if she said the following:
COURIC: What other Supreme Court decisions do you disagree with?
PALIN: Well, let’s see. There’s –of course –in the great history of America there have been rulings, that’s never going to be absolute consensus by every American. And there are–those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know–going through the history of America, there would be others but–
COURIC: Can you think of any?
PALIN: Well, I could think of–of any again, that could be best dealt with on a more local level. Maybe I would take issue with. But you know, as mayor, and then as governor and even as a Vice President, if I’m so privileged to serve, wouldn’t be in a position of changing those things but in supporting the law of the land as it reads today.
Yep, it probably wouldn’t go over very well.
Which invites the larger question of whether Souter’s replacement should be a woman, or gay, or Hispanic, etc.
I’m not going to waste your going through all the arguments about why the idea of a “most qualified candidate” is a myth. Suffice to say that there’s no objective ranking of potential options. There are probably thousands of people who would make perfectly credible Justices. Which means when people insist on making it the “most qualified” person, what they really mean is: “I’m going to accuse you of identity politics if you don’t pick a white guy.”
All that’s true, but what I’m more interested in is actually making an identity politics argument for re-conceptualizing what counts as a ‘qualification’ for the job.
Right now, the two real deciding factors are 1) ideology and 2) the certainty with which the political bases can judge ideology. Harriet Miers got tossed aside not because of the preposterous nepotism her nomination implied but rather because right-wing groups didn’t feel sure enough of her position on abortion – i.e. – they didn’t want “another Souter.”
But there’s no reason why that’s good practice. Judges serve life-terms so there’s no guarantee, given the vagaries of political change, that the composition of the court will reflect the actual present-day will of the country.
There is, however, a very reasonable case to be made that the Court would be better off the closer it hewed to the actual demographic composition of the country. It’s absolutely ludicrous that the single most prominent court case is intimately and completely related to women’s bodies and gender equality, and there have been a grand total of two women to EVER serve on the Court. Gender doesn’t necessarily produce x, y, or z position, but a court full of men is going to have a harder time feeling empathy for experiences that fall outside their personal lived experience.
Really, letting the court continue as a institution steeped in whiteness and masculinity does nothing but reinforce the notion that to be white and male is the ‘natural’ state of things, that whiteness isn’t an identity. It implies that Justices are actually brains in a vat, with no lived experience and no perspectives that have been shaped by their own particular cultural location.
Which is not to say that identity guarantees any particular position. Comparing Thomas and Souteron desegregation, for example, makes that clear. But a court filled with people who were forged in the midst of a legacy of various inequalities is far less likely to truly reflect the positions of a country that looks very different from it.
I’m not saying race/gender/sexual orientation/etc. should be a dreaded litmus test. But there are a LOT of qualified people out there. In a perfect world, we could simply find the person with the objectively finest legal mind and call it good. But in the real world where people live in bodies, coming from a different background offers valuable perspective that ought to be considered a legitimate qualification for the job.
Put together a short list that features a bunch of folks who aren’t white men. That doesn’t have to be the final determinant, but it ought to at least be a factor. It’s the right thing to do.