Published on Thursday, July 21, 2005 by the Chicago Tribune
Nomination Vexes Liberals, Women
Loss of 2nd female voice is seen as cause for concern
by Mike Dorning and Andrew Martin
WASHINGTON -- President Bush's nomination of Judge John Roberts Jr. to the Supreme Court left America's first female justice among the American women who felt at least slightly let down.
"I am disappointed, in a sense, to see the percentage of women on our court drop by 50 percent," Sandra Day O'Connor told The Associated Press in Spokane, even as she praised the president's nominee for her replacement as "first-rate."
Many American women looked to O'Connor as an inspiration, a rancher's daughter who because of her sex could not get a law firm to hire her when she first became an attorney but who both raised a family and rose to the pinnacle of the legal profession.
And in an institution where nine justices deliberate behind closed doors on the most momentous issues of the day, something is lost when there is only one female voice in the room, said former Supreme Court law clerks and women in public life. With O'Connor gone, Justice Ruth Bader Ginsburg will be the only woman on the court.
"While one woman can make the argument when it comes to sex discrimination, Title IX [equal educational opportunities], reproductive privacy, a second woman in the room helps solidify the positions and makes the men understand some of the ramifications," said Karen O'Connor, director of Women & Politics Institute at American University.
"The hope was that this wasn't a one-seat quota, that the number of women on the court would expand," said Marci Hamilton, a former O'Connor law clerk who is now a professor at Yeshiva University's Cardozo Law School.
Even some Republican women senators, including two who sent a letter to President Bush last week asking that he nominate a replacement in the mold of O'Connor, acknowledged a need for more women on the Supreme Court even though they are inclined to support Roberts.
"Ideally, it would have been preferable to replace Sandra Day O'Connor with a qualified, capable woman," said Sen. Olympia Snowe (R-Maine).
Political fallout unclear
A spokeswoman for Sen. Susan Collins (R-Maine) added, "She would like to see more women on the Supreme Court, just as she would like to see more women in the Senate." Even First Lady Laura Bush seemed to urge the president last week to name a woman.
Still, it's unclear whether Bush's decision, against expectations, to nominate a man will have much political cost, among women or others.
Democratic pollster Anna Greenberg said female voters are more likely to be moved by their perceptions of Roberts' impact on the law than by his sex. The president already has shown the public he is comfortable placing women in powerful positions with appointments such as Secretary of State Condoleezza Rice, she said.
"I don't think a lot of people honestly think George W. Bush is a sexist who won't appoint women to top positions," Greenberg said.
One of the reasons many women looked to O'Connor as a model on social issues was her role on the court in preserving the Roe vs. Wade ruling that sanctioned in law a woman's right to an abortion. But there are also many women who do not believe in abortion.
And while groups that support abortion rights are actively opposing Roberts' nomination on the grounds that he might vote to overturn Roe, there are groups that support abortion restrictions that will support him.
Roberts' wife, Jane Sullivan Roberts, also a lawyer, served as executive vice president of a Washington-based group called Feminists for Life from 1995 to 1999 and continues to work as pro bono counsel for the organization, said Serrin Foster, the group's president.
Her primary responsibility is in-house work such as incorporation papers and contracts for employees, Foster said. Her only external legal work for Feminists for Life was preparing an affidavit in support of the ACLU, which filed legal action against an honor society in Kentucky that refused to admit teenage students with children. Foster said her organization also opposed the policy because the honor society should support mothers with good grades and because they didn't also exclude teenagers who had had miscarriages or abortions.
Abortion a key issue
Foster said her organization focuses on "the root causes of abortion" to try to make sure women don't seek abortions for such reasons as lack of available day care, she said.
Foster said she met Roberts once, at his wedding. "He is not associated with FFL," Foster said. "Her work and what she does should stand alone."
While abortion is one of the nation's most politically charged issues, it is only one of many that women consider in elections. Women voters are a powerful force in American politics, with modest changes in their ballot preferences often swinging elections. Democratic candidates, in particular, appeal to women voters in the context of their support for abortion rights.
But regardless of the political consequences, the loss of a second female voice on the court is likely to have a tangible impact on its deliberations. Insulated from political pressure by a lifetime appointment, each justice brings a life experience to decision-making that adds texture and nuance to the abstractions of many legal issues.
For instance, Elizabeth Garrett, a former law clerk to Justice Thurgood Marshall, remembers the day her boss returned from court arguments over minority set-asides amid a discussion about how far blacks had come in America.
"He looked at us and said there is not one day in this country that I have had to look down at my hand to recognize that I am an African-American," said Garrett, now a law professor at the University of Southern California.
Many commentators have pointed to O'Connor's sex as well as her background as a state legislative leader as a reason for her pragmatic approach to the law.
Pamela Karlan, a Stanford law professor and former Supreme Court clerk, cited O'Connor's dissent to an immigration decision upholding different treatment for the children of American mothers versus American fathers. The majority cited a special bond that mothers have with children, which O'Connor dismissed as a stereotype.
"I don't think it's any accident she had that view," Karlan said.
© 2005 Chicago Tribune