Not long ago, for fun, I picked up an issue of Stanford Lawyer, the alumni magazine of Stanford Law School, which featured an interview with United States Chief Justice William Rehnquist, a Stanford alum. The interview was a slog; Rehnquist didn't talk about his retirement plans or anything else very important. But I did find one thing in the magazine illuminating -- a photograph of Rehnquist's law class taken at its 45th reunion, in 1997. The picture is one of homogeneity. Most of Rehnquist's classmates look pretty much like Rehnquist himself -- they're all wizened, well-put-together folks who've apparently led successful, well-remunerated lives. Most wear dark suits. Most are bald. Every single one of them is white. Only one alum stands out in the crowd: Rehnquist's eventual Supreme Court colleague Sandra Day O'Connor, radiant in a teal dress, who is one of just two women in the group.
In the half century since Rehnquist and O'Connor graduated from law school, the legal profession, more than most other corners of American life, has become amazingly diverse. A picture of the current Stanford Law class looks very different from Rehnquist and O'Connor's reunion photo. Today at Stanford, as at most other top schools, women make up more than half the student body, and 20 percent of Stanford's students are minorities. More than a quarter of all law professors in the nation are women; at Stanford, Kathleen Sullivan, a lesbian, just stepped down as dean. Yet look at a picture of today's Supreme Court and you see a group that looks just like Rehnquist and O'Connor's 1952 graduating class. Two thirds of the justices are white men. And now that George W. Bush has picked John Roberts, another white male, to replace O'Connor, the court will become significantly less diverse.
Why did Bush pick Roberts? I understand that the judge is brilliant, well-liked by many in Washington and, as far as anyone can tell, ardently conservative. He also looks easily confirmable; reports suggest he's straitlaced and not the type to harbor skeletons -- or rude videos involving skeletons -- in his closet. But I'm not asking about Roberts' credentials or his jurisprudence. Instead, I wonder about the political calculation involved in picking a white male, who would be the 105th white male to serve on the court, especially when we know that Bush considered many solidly conservative and easily confirmable women and racial minorities for the job. We know, too, that Bush appreciates diversity; Bush has named more women and minorities to high office than any president before. Even if many of those choices have been objectionable, his impulses are laudable, especially when compared to those of previous Republican presidents. Bush seems to recognize an important principle that's at the heart of why affirmative action is important: Symbolism matters. Americans of every color need to know that they can reach the nation's heights. Bush's first pick for the court, though, closes off that hope.
Purely as a matter of politics, the move is puzzling. Polls show that the majority of Americans would have preferred a woman for O'Connor's seat. Bush says he doesn't follow polls, but he considers at least one of those Americans very important -- his wife, who told the "Today" show last week that she "would really like him to name another woman." Or, if not a woman, why didn't Bush choose a Hispanic candidate? Karl Rove, Bush's political guru, has been itching to make inroads into the Hispanic community, which he thinks can be turned into a permanent, solid Republican bloc. Bush's religious base made clear their opposition to Attorney General Alberto Gonzalez, but was no other minority candidate suitable for the job?
We do know Bush had several women to choose from -- not only far-right radicals like Patricia Owen and Janice Rogers Brown, but also more sane, yet still quite conservative judges such as Edith Jones. Jones, the more extreme of the two Judge Ediths we kept hearing about on Tuesday afternoon as likely picks, was appointed to the 5th Circuit Court of Appeals by Ronald Reagan. Her résumé is certainly less distinguished than Roberts'; instead of Harvard, she was educated at Cornell and the University of Texas. She is also a few years older than Roberts, and, having served longer on the federal courts, she's got a bigger record for liberals to attack. (As Emily Bazelon pointed out in Slate, Jones has assailed Roe v. Wade in her opinions.)
Yet for the trouble her record might have caused in a confirmation fight, Jones' gender might have helped her out. Had Bush nominated Jones, many Americans, even many senators, might have appreciated the president's effort to preserve diversity on the court and would consequently have supported her nomination. Let me be clear: Everyone on the left, myself included, would have preferred Bush to nominate a moderate or progressive judge; my ideal choice would have been Stanford's Kathleen Sullivan. But given the small orbit in which Bush was bound to operate --- the conservative, Federalist Society circle -- we'd never have seen a lefty judge. Turned off as I am by Jones' jurisprudence, if my choice were between Jones and Roberts, two judges who are more or less equally conservative, I'd choose Jones. I wouldn't have chosen a radical like Owen or Rogers Brown over Roberts just to get a woman on the court; but between a woman and a man who share an ideology, I'd choose the woman. Preserving diversity on the court for diversity's sake -- for no other reason than to create a court that looks more like America -- is a crucial goal.
You may say that my argument smacks of sexism -- after all, I'm calling for a woman to be named to the court because she's a woman. I'm discounting her ideology, her philosophy, and choosing her based solely on her gender. What I'm really calling for, though, is for a court that's more representative of the population. It stands to reason that such a court will be better equipped to rule on cases in a way that looks fair to most Americans. I'm not saying that race or sex affects a judge's opinions in any predictable way; certainly we haven't seen Clarence Thomas ruling in a way that pleases most black Americans. In the same way, I don't believe that women have any greater capacity to decide issues of law more fairly than men; I don't think female judges are more thoughtful about women's issues, or that they're better on the environment, or the death penalty, or the First Amendment, or anything else I care about.
Yet it's undisputable that race and sex do color life; women and minorities face pressures and challenges fundamentally different from those of white men, and those pressures and challenges need to be part of the deliberative process responsible for so many important decisions shaping American law. What I'm really getting at is fundamental fairness: Women represent more than half of the nation's population. How can Bush justify having an entire branch of federal government ruled by a body composed of only one woman and just one member of a racial minority?
A couple of years ago, the Supreme Court handed down a landmark decision in a case over affirmative action at the University of Michigan Law School. In the opinion, Grutter v. Bollinger, a 5-4 majority of the court determined that diversity was an important goal to strive for in a law school's student body. "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity," wrote the court.
When he decided to pick his first Supreme Court justice, Bush ought to have read that opinion; the argument applies perfectly to the court. The opinion, by the way, was written by O'Connor, the woman Bush decided to replace with a man.