The Next Supreme Court Justice

by Jen Nedeau

categories: Jen Nedeau, News

Published May 04, 2009 @ 09:23PM PT

By now you've heard the news. Supreme Court Justice David Souter is retiring. For civil rights activists, the loss of Souter is big. He's been a friend to the disenfranchised throughout his tenure on the Supreme Court as succintly described in the New York Times:

The first opinion he wrote overturned, for a unanimous court, the conviction of a black man for killing a white woman, because the defendant had not been given ample opportunity to challenge the makeup of the nearly all-white Georgia jury. Justice Souter went on to become a reliable champion of civil rights. In 2003, he provided a critical fifth vote upholding the University of Michigan's affirmative action program.

He has also been a firm supporter of the constitutional right to abortion. In 1992, in Planned Parenthood v. Casey, he voted to uphold the court's embattled ruling in Roe v. Wade.

After Sept. 11, Justice Souter backed the due-process rights of the prisoners being held in Guantánamo Bay. He has voted in favor of gay rights, and carefully tended the line between church and state.

Thankfully, we are under the guidance of a President who has incredible expertise in the intricacies of the Supreme Court. It is one of his major skill sets - a deep, profound knowledge of constitutional law - which is crucial to the future integrity of our justice system. Thus, while we are losing a friend on the Court, we are also given an opportunity to secure a new, younger face on the bench who will continue to seek justice and equality for all.

But who that face is and what it should look like is creating a lot of questions here in Washington, DC.

As a friend of mine pointed out, conservatives have a decided advantage when it comes to control of the Supreme Court due to the fact that seven of the nine Justices were appointed by Republican Presidents. Right now, conservatives will continue to control much of the Supreme Court in the years to come because Republican Presidents such as Ronald Reagan, George H.W. Bush and George W. Bush actively sought out nominees who could sit on the bench for over a generation.

• Chief Justice John Roberts Jr: 53 years old, appointed by Bush II
• Justice John Paul Stevens: 89 years old, appointed by Ford
• Justice Antonin Scalia: 72 years old, appointed by Reagan
• Justice Anthony Kennedy: 72 years old; appointed by Reagan
• Justice David Souter: 67 years old; appointed by Bush I
• Justice Clarence Thomas: 60 years old; appointed by Bush I
• Justice Ruth Bader Ginsburg: 76 years old; appointed by Clinton
• Justice Stephen Breyer: 70 years old; appointed by Clinton
• Justice Samuel Alito: 59 years old; appointed by Bush II

Before President Obama won the election, I was terrified that another conservative in the White House would ruin any chance of a balanced Supreme Court. I was worried that under a McCain-Palin administration, it was only going to be a matter of time before the entire court turned a deeper shade of red and I lost access to important civil rights - such as the right to privacy and the right to choose.

With Justice Souter's retirement and the potential for Justice Ginsberg to step down due to her health in the near future as well, it is becoming clear that President Obama has a real opportunity to balance the court's ideological slant by nominating diverse, progressive, smart, young judges to the High Court.

Clearly, I would like another female justice. If not two. I would appreciate a Latina or Asian and if possible - it'd be great to make space on the Supreme Court for an LGBT candidate. And all of this is yes, for the sake of diversity, but also for the sake of justice. Read this Washington Post article - When Women Rule, It Makes a Difference- and you'll see why:

But a diverse Supreme Court isn't just about a bench that looks like America. This is about jurisprudence, too. In research that we conducted with our colleague Andrew D. Martin, we studied the votes of federal court of appeals judges in many areas of the law, from environmental cases to capital punishment and sex discrimination. For the most part, we found no difference in the voting patterns of male and female judges, except when it comes to sex discrimination cases. There, we found that female judges are approximately 10 percent more likely to rule in favor of the party bringing the discrimination claim. We also found that the presence of a female judge causes male judges to vote differently. When male and female judges serve together to decide a sex discrimination case, the male judges are nearly 15 percent more likely to rule in favor of the party alleging discrimination than when they sit with male judges only.

Additionally, this report from Northwestern Law titled "Untangling the Causal Effects of Sex on Judging" illuminates even more reasons for gender to play an important role in deciding the next Justice. So far we've seen a few female names float through the press: Sonia Sotomayor (age 55), Elena Kagan (age 49) and Pamela Karlan (age 50) are the most prominent so far. At this point in time, I don't have a preference for either of these three women - I need to know more about them and what they can do for the Supreme Court.

NOW has started a petition asking for the President to name a "woman like Justice Ruth Bader Ginsburg, who is a proven advocate for equality and fair treatment under the Constitution." And while I agree that it'd be ideal to have another female similar to Justice Ginsburg, it does seem a little short sighted to give a singular parameter for this position: be a woman.

Of course, I want the Court to be more diverse. One woman out of nine men is pathetic. And I often believe that the most authentic voice for justice comes from the source that has lived through the discrimination.

But, I can't deny that Justice Souter was very capable of defending the rights of women and minorities - and therefore that leaves me open to almost anyone who can fulfill that role whether they are male, female, black, white, Latino, Asian, handicapped, or LGBT.

The most important thing to me is that the next Justice will defend women's rights, be a voice for the voiceless and truly understand the delicate nature of the decisions made by the High Court. If anything, my greatest preference is that this next Justice be a young progressive. We need him or her to be there for at least a generation to come.