Only a female judge will do?

Supreme Court Justice David Souter is retiring, President Barack Obama will soon nominate a successor, and the cry is that it be a woman because, you know, it would be just dreadful otherwise.

Ruth Bader Ginsburg

Supreme Court Justice David Souter is retiring, President Barack Obama will soon nominate a successor, and the cry is that it be a woman because, you know, it would be just dreadful otherwise.

Why, if Obama nominated a ma, the next thing you know Americans would be back in the caves, yanking women by their hair, banging them on the head with clubs and forgetting every advance made against drooling, brute male oppressiveness.

Or maybe not. Some Americans suspect that the United States could very well continue to be a just, rights-respecting republic even if a highly qualified, capable male somehow sneaked past liberal watchfulness to fill Souter’s vacancy.

In fact, improvements in women’s status would then shrink nary a millimeter.

That’s not to say that most men think there would be anything wrong with nominating a woman, or that there is a deficiency of brilliant women citizens extremely well prepared for the job. The issue rather is whether biology should be a crucial determining factor in deciding who might best serve in a position of extraordinary scope and historical significance.

Justice Ruth Bader Ginsburg told USA Today biology should rule because “there are perceptions that we have because we are women” and that this can be a “subtle influence” in determining court outcomes. There are probably a dozen things wrong with this argument, and a few of them come to mind.

One is that society would collapse tomorrow if it were not for the capacity of most of us to imagine what life is like for people different from us and to feel sympathy for them.

Morality is largely built on this fellow feeling even as it is furthered by certain kinds of cultural developments, some philosophers have argued. Some evolutionary scientists say much the same thing.

This sympathy – which obviously has its lapses – may be a country mile’s distance from sharing all the experiences of others, but there’s no way to get there from here.

No two individuals go through precisely the same situations in life or would necessarily derive the same lessons from them if they did, even within the thousands of groups that have much in common.

Do all women have the same political and social attitudes? Not even close. Justice Ginsburg, meet Governor Sarah Palin.

And at any rate, legal rulings are supposed to be based on interpretations of law, not on sympathy. Much of what’s best in western civilization has been the movement from the rule of on-the-spot judgment to the rule of law.

Obviously, we don’t want one-dimensional automatons as judges, but neither do we want judges who invent new law in accordance with supposed experiential insights instead of aiming to decipher how specific laws and legal traditions apply to the case at hand.

Justice Ginsburg has another argument, namely that a court with just one woman is a court that leaves women with a diminished understanding of their social roles.

These would have to be women whose eyes are closed tight to the myriad ways in which their sex more and more occupies seats of power. And it’s an argument that raises questions about all kinds of other groups that could lodge similar complaints.

After all, if a major point in choosing Supreme Court judges is to make groups feel good about themselves, where do you stop? What about gays, the disabled, all the various ethnic groups, very, very short people, unusually tall people, obese people and on and on?

Identity politics is ultimately a politics that bumps heads with a politics of merit, liberty, individualism and common sense.

The aim of Obama in nominating the next justice should first and foremost be to try to find someone with the absolute best judicial qualities of anyone willing to serve, quite possibly a woman, but not necessarily.

Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers, is a columnist living in Colorado.

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