The Volokh Conspiracy

I think another commenter here at Volokh had it right last week. If Justice Ginsburg "would not like to be the only woman on the court", there is an incredibly easy way she can remedy that problem.

Slate's coverage of legal issues - and frankly, of nearly everything - has declined precipitously since the W Post took over.

If he does nominate a woman, I doubt that she'll be one that will warm the cockles of Lithwick's heart.

I certainly hope not.

Lithwick's way of making the point is pretty hamfisted, but I think she does have a point. As I understand it, the argument is that people will tend to criticize women in power AS women until there are enough women in power that it is not worthy to comment on their gender. So she is actually aiming at a more or less gender-blind outcome, but suggesting that to get there you first have to correct the current gender imbalance.

Personally, even if the premise is correct (more women in positions of power means less criticism of women as women), I'm not sure that is a sufficient reason to accelerate the process of achieving gender balance (I say accelerate because I assume that under current conditions--as I understand it women are making up half or more of law school graduates--we will eventually get a similar balance on the Court).

Still, given the nature of the Court, "eventually" can be an awfully long time. By my calculations it will tend to lag up to 50 years or more in terms of the underlying conditions that led to its composition (in that the most senior Justices will have gone to law school that long ago). So if you are sufficiently impatient to correct the effects generated by that time-lag in combination with prior social conditions, then you do get an argument for taking gender (and perhaps ethnicity) into consideration.

I'll be much happier reading Lithwick's stuff once the Supreme Court starts hearing cases. She's much more thoughtful, and wittier when she talks about actual cases and mixes discussion of the merits with jokes about the justices and the people arguing the cases. When she's at her best, she's one of the best court commentators out there.

Her commentary during the hearings has not shown her at her best.

I notice that Lithwick criticizes only men for criticizing Ginsburg and Feinstein, despite the fact that conservative women had criticized them as well. Obviously this means that we need more male opinion columnists so that they will not be so unfairly singled out.

I can't comment directly on Lithwick's argument because Slate is blocked by my local server as "pornographic."

I think this is the first time I've ever heard of those filters getting something right.

I respectfully disagree with Adam when he says that "In Canada, there are four female Supreme Court justices, of vastly different political valences, and the issue of gender in decisionmaking doesn't exist."

All the Canadian justices are dogmatically left-wing, at least by the standards of the United States and most other western countries. Canadian jurisprudence is almost beyond parody.

As David Frum observes, the Canadian courts are dogmatically feminist. If "the issue of gender in decisionmaking doesn't exist," it's because the judiciary is so monolothically left-wing that no dissent exists, and because male and female Canadian judges alike are frequently biased against male litigants in family law cases.

Ask the Brampton, Ontario man who was forced to pay alimony to the abusive wife who stuck a knife into his heart, attempting to kill him (she very nearly succeeded), on the grounds that alimony decisions must not take into account fault, because that supposedly disadvantages women.

Canadian courts are grossly biased towards ex-wives in divorce-related custody decisions. While men today play a greater role in raising children than in the 1970's, Canadian courts are actually less likely to award them custody than in the past.

Ask the people criminally prosecuted for criticizing provincial courts for abuses of power. Canada is much less protective of free speech and the right to criticize government abuses of power than the United States (or even, in practice, the U.K. or Australia, even though the U.K. and Australia lack a written constitutional guarantee of free speech, while Canada has a Charter of Rights and Freedoms, which the Canadian courts have gutted).

Canadian courts give laughably short sentences for hardcore criminals. They let violent criminals off with little prison time, and let people who embezzle millions off with suspended sentences.

And yet, in various provinces, special domestic violence courts, imbued with dogmatic feminism, treat husbands falsely accused of domestic violence as presumptively guilty, summarily kicking them out of their homes and denying them procedural safeguards accorded every thug and thief. The double standard is massive.

By the way, I'm not Canadian, I'm not divorced, and I have no kids. So my critique of Canadian family law isn't a reflection of any self-interest on my part.

This is unreasonable - think about what Lithwick is saying. Ginsburg and O'Connor, despite having huge political differences and life experiences, both feel it is important to have a second woman on the court. Shouldn't we at least try to think about why?

Not to those of us who prefer the “unreasonable” standard of trying to pick the best possible jurist without regard to their race or gender.

This is not just to have someone with a woman's experience when adjudicating cases involving women, though that is very important too.

Why?

It's because having a single woman on the court will inevitably result in "it's because she's a woman!" type comments whenever you disagree with her.

Really, please provide us with examples of people making those comments about Justice O’Connor when she was the sole female on the Court.

The fact that a woman was the fifth vote in a majority just shouldn't be an issue.

No one else is making it one.

In Canada, there are four female Supreme Court Justices, of vastly different political valences, and the issue of gender in decisionmaking doesn't exist.

As others have pointed out, in Canada the “vastly different political valences” range all the way from “center-left” to “far left.” Needless to say those of us of a different political persuasion aren’t likely to be persuaded by the suggestion that we should follow Canada’s example.

There is a lot of sexism in the law schools

Women make up over half of all law students. The only “sexism in the law schools,” I witnessed was from gender feminist professors (typically of the baby boom generation) who felt free to engage in the occasional bit of male-bashing during their lectures.

However, this is not an ideal scenario as there are only 9 places on the court so why don;t we fill them with 9 great judges regardless of age, sex, secual orientation, gender or religion?

I think we need to acknowledge that what Lithwick and others are really upset about is the likely ideological persuasion of the judges rather than their “age, gender, religion, etc.”). They’re hiding behind the “gender” and “race” cards because they don’t want to admit that what they really want is a Court that shares their particular ideological persuasion like everyone else to give themselves an air of nobility for being concerned about “diversity” and making the Court “look like America” or some rubbish rather than admit that what they really want are leftist jurists like Ginsburg (or worse).

As I said before (TIC), if Justices Stephens, Souter, and Bryer were to step down today, I would be more than happy to personally lobby the Bush administration to appoint three qualified women to the Court in their place including one black and one Hispanic female justice. This would double the number of women who have ever been on the Court at once but somehow I doubt Lithwick and others decrying the lack of females on the Court would be happy with three female originalist jurists.

Somehow I doubt that these advocates of "diversity" on the court would welcome the nomination of Janice Brown to replace O'Connor - even though this would add a black and a woman, and I have the impression that it would make the Court more ideologically diverse, Brown being somewhat more libertarian than any Justice in recent history.