Monday, October 31, 2005

Eight to One Is Not a Great Ratio

So, a man has been nominated to take the seat of the first woman on the Supreme Court, and part of me is disappointed. I mean, if the judge was going to be a conservative whose values I dislike, couldn't it at least be a she? Couldn't the nomination celebrate diversity? The heights women have climbed to?

But at the same time, I think that attitude is unfair. I don't believe in affirmative action and I don't believe people should get a job based on race, ethnicity, or gender. A Supreme Court Justice should be nominated based on his or her ability to do the best job, and if that person was male, then so be it.

But the question still remains: the Court's make-up, assuming approval of Alito, will be eight men and one woman. Are there really eight qualified males to every qualified female for this position? Are women lagging behind? And if they are, why?

Is it a collective choice of women everywhere that they would rather not be Supreme Court Justices or, despite all our liberal-speak, is it truly still a man's world?


At 10/31/05, 10:05 AM, Blogger respondingtojblogs said...

The idea that a nine body entity would some how reflect the demographics of 300,000,000 citizens is a little far fetched and contrary to any law of statistics I know of.

At 10/31/05, 1:45 PM, Blogger Nephtuli said...

Those are good questions. I guess the question depends on why we feel the Court should be of a similar ration to the population.

I'm a textualist/originalist, so part of my methodology assumes that judges make decisions based on law and precedent; they do not (or should not) impose their political preferences. Any formalist (even liberals like Dworkin) should agree. So the formalist doesn't care about diversity.

A pragmatist in the mold of Richard Posner would disagree and argue that interpretation is merely about deciding the best consequences of the decision. Since there's no formula for doing that, the judge has great discretion. And discretion is exercised based on personal factors, including experiences. So the pragmatist would require a diverse judiciary in order that one element of society would not overrepresented.

So there you have it. It depends on one's viewpoint. Bush is certainly a formalist, so he doesn't care much for diversity on the Court.


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