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Women and the Court
Members of the U.S. Supreme Court sit for a group portrait at the Supreme Court in Washington in this March 3, 2006 file photo. (AP Photo/J. Scott Applewhite, File)

President Obama is expected to nominate a woman to replace retiring Justice David Souter. Justice Ruth Bader Ginsburg is currently the sole woman on the Supreme Court. (AP Photo)

Any day now, Barack Obama will be announcing his choice for nominee to succeed David Souter on the U.S. Supreme Court. Speculation is high that it will be a woman.

Ruth Bader Ginsburg has said she’s “lonely” on the court. And at one level, it seems obvious that the court should have another woman. The world is half female.

But does a woman bring a special kind of jurisprudence to the bench? Is it the “quality of empathy” Obama says he wants? And what kind of woman? Hispanic? Straight? Gay? Elected?

This hour, On Point: Women, justice, and the Supreme Court.

You can join the conversation. Tell us what you think — here on this page, on Twitter, and on Facebook.


Joining us from Charlottesville, Va., is Dahlia Lithwick, senior editor and legal correspondent for Slate. She recently co-wrote  a piece with Hanna Rosin called “An Unnatural Woman,” looking at potential female nominees to the Supreme Court and issues of sexuality. She’s also written recently about the controversial idea of a female jurisprudence and the concept of judicial empathy.

From Washington, we’re joined by Hanna Rosin, a contributing editor at The Atlantic and a writer for Slate. She’s also a founding editor of “Double X,” a new women-focused Web magazine launching today.

And from Palo Alto, Calif., we’re joined by Deborah Rhode, professor at Stanford Law School. She’s a pioneering scholar on the field of gender and the law. She’s director of Stanford’s Center on the Legal Profession. Her latest book is “Women and Leadership: The State of Play and Strategies of Change.”

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  • Scott

    Separation of powers aside, Michelle Obama would make a great Supreme Court Justice.

    She has many of the qualities that Obama is said by the press to be seeking. She is a young, female, minority, practicing attorney – who’s also wicked smart.

    She sympathizes with the common person, and would apply constitutional law in a way that is sensitive to their needs and concerns.

    And she could settle ties by arm wrestling Antonin Scalia.

  • Putney Swope

    Conflict of interest and her complete lack of judicial experience are why Michelle Obama would be a bad choice.

    I like Judge Diane P. Wood from the United States Court of Appeals for the Seventh Circuit in Chicago.

    There is a very good article in today’s NY times on her.
    She has a lot of experience going up against strong conservative judges, which this appointee will need.

  • Joe B.

    I’m positive that whoever Obama nominates to the court will be your typical out of touch liberal. His nominee will be hardcore for abortion rights, gay rights, gun-control, affirmative action, and having evidence against criminal suspects thrown out on the slightest technicality (Miranda v. Arizona). I fear that Obama will nominate a judge who shares his own radical views.

  • Putney Swope

    Ahh Joe say it ain’t so… well that’s what happens when another party gets elected into power that does not believe in your right wing ideology

    By the way I find your views to be radical and right now in the minority in this country.

    It’s interesting how some factions of the right will use extreme words such as “radical” and “socialist” in vain attempts at demonizing the president.

    He’s not progressive enough in my view. He seems pretty centrist to me.

  • http://www.richardsnotes.org Richard

    I found this article on Slate quite useful in looking at Diane Wood:

    Future Dangerousness
    The tricky sex offender case that could trip up one of the judges on the short list to replace Souter.


    I happen to agree with Wood’s decision in the case but it will no doubt be a liability in certain circles.

  • david

    Ms. Obama would be a terrible choice.

  • Jason

    I think we need a gay African-American woman on the court! Hey, we can dream, right?

  • http://www.richardsnotes.org Richard

    Helen is right on the money. 87 years brings wisdom. Thank you Helen.

  • Dan O’Dea

    I wish we didn’t have to have this discussion, although I understand why it’s needed. I believe the more important question is this: how flexible is the new Justice? Strict contructionists like Scalia, Alito, and Roberts miss a valuable point: the Constitution is an 18th century document. A lot of changes over the last few years. One example: the Constitution does not say “the right to life, liberty, HEALTH, and the pursuit of happiness” not because they didn’t think it important but because they didn’t think of it AT ALL. Health care at the time was essentially non-existent. A great many other technological and philosophical advances also are not mentioned in the Constitution because they simply weren’t around when the Fathers wrote the document.

    I’m not arguing about any specific situation; as said on the air empathy is important, and is necessary for flexibility. What we really need on the Court is people who understand the difficulty of applying an 18th century document to a 21st century world.

  • Matt Funiciello

    I have the perfect candidate. Ralph Nader.

    No one in the past 50 years has his record of protecting the working class from the Supreme Court’s impending corporatism (see Jeffrey Rosen’s excellent article “Supreme Court, Inc.” NY Times March 2008).

    As a side benefit, the mathematically-challenged folk who blame Nader for Bush’s election could rest easy knowing that he is otherwise occupied in 2012.

    Independents would support this because too few national public figures from either corporate party represent us and the common views of mainstream Americans.

    Republicans may often disagree with Nader but they also respect him for his principle and his love of our founding documents. The Constitution would have no better friend on the court than Ralph.

    An act like this would go far in reassuring those who clearly see Obama and his “fox in the henhouse” cabinet appointments as a total sellout to corporate interests.

  • doug draeger

    Court justices get old in office. Women live long, soon all justices will be older women. Gambling tells me so.

  • Mari

    I still remember that it was the Supreme Court justices who placed George W. on the throne launching and enabling the oligarchic pathocracy we are all stuck with, now.

    The authoritarian structure of the Supreme Court is strictly patriarchal, one-sided in their shared philosophical views and devoid of empathy and compassion for the “other.”

    Yes, we need to add a balancing element to this old-boy practice of institutionalized judicial injustice. Any non-Republican, neo-con-outsider (as long as she’s female) will do.

  • Terence Gooley

    “I may regret this later”… It was a great joke, she was referring to the fact that the justices are trying to take responsibility for women’s future regrets !!

  • http://ThePreambleProject.blogspot.com/ Bill W.

    Most important: Honoring their oaths (two) of office–the first, support and defend the Constitution….

    … which means honoring the Preamble and the Ninth Amendment, … other rights retained by the people (the “We the People” people of the Preamble … (and Tenth as to powers reserved by those “We the People” people–and the states, of course.

    and the 2nd oath, impartiality.


  • Stav

    You cut Karlan’s comment short. The reason she says she may end up regrettting waht she is saying is that she points out that the Justices aren’t very judicious and have taken the language of a Randall Jarrett or the guy who wore multicolor wigs into the decision. The majority opinion does not refer to “woman”, she is a “mother” (although she clearly does not want to be a “mother”!); Fetus is changed to “unborn baby”; doctors are not ob-gyns or doctors they are “abortionists”. It is a total breakdown and takeover of the Justice system by some lunatic fringe extremists. That video http://www.youtube.com/watch?v=SyLm1lwTYk0&feature=player_embedded, along with Lithwick’s great column on the Strip Search case banter tells us that we need to get two or three more women on the court!

  • Terence Gooley

    One of your callers said something to the effect that he does not care who she is as long as she is highly experienced and qualified. Besides the fact that this downplays the “empathy” lens, what defines good experience and good qualification are both qualities mitigated in the marketplace of ideas, and who gets to decide what highly qualified means? Most likely a variety of power centers dominated by men. The lens of “qualification” is itself a chauvinist myth.

    Does qualification include empathy? Child-birth? Raising a family? Surviving a misogynist world?

  • Linda H-B

    What do “sensitivity” and “empathy” have to do with the selection of someone to interpret constitutional law? And how, may I ask, would those traits be measured? This entire hour was ridiculous drivel. And regarding the “paternalism” of abortion law: It’s never been about protecting women from a choice they may regret later on. It’s about whether it is right or wrong to abort a child, period.

  • gina

    jason writes “I think we need a gay African-American woman on the court! Hey, we can dream, right?”

    i nominate wanda sykes! :-)

  • http://zombo.com Felmkes

    12:40 and available online, that’s pretty quick ^o^ thanks for the show

  • Frank the Underemployed Professional

    I find the notion that just about anyone or even any attorney is qualified to be a Supreme Court justice to be very offensive. It’s like saying that the years of legal and scholarly experience earned by an appellate judge are meaningless. This ridiculous notion demeans the legal profession by implying that legal knowledge and experience are unimportant. Being on the Supreme Court should be regarded as a very serious and sacred business, and it’s a job for a judge from either the U.S. Court of Appeals, a judge from a state supreme court, or perhaps a preeminent and accomplished Constitutional law scholar.

  • Mike T

    I’m having trouble accepting that “empathy” is a valid criterion for any jurist. All laws inevitably help some and hurt others, so, if empathy is a legitimate basis for judicial decision making, the inevitable question becomes: With whom does a judge empathize? It seems to me that this is a question more properly asked of a political candidate than a judge. Surely, we don’t need to further politicize the already overly-partisan appointment process. I’m sure that many conservatives view President Obama’s use of the term “empathy” as nothing more than thinly veiled code for “liberal.” I wish he hadn’t used it.

  • Kim

    There’s a recent article at Wunderkammer looking at this issue pretty in depth -


  • Felmkes

    The Daily Show did a bit last week referencing how often people Fox News, CNN, etc., took ‘empathy’ to be a veiled code for ‘activist judge’. Then the Daily Show went on to suggest ‘activist judge’ is veiled code for ‘pro-choice.’ I wonder if that’s at all on the mark.

  • Don A.

    Diversity is everything. What about having fat people represented on the Court? Or a thin people, or tall people, or short people, or Polish-Americans, or German-Americans, or disabled people, or poor people, or…? Every different group can’t be represented so let’s just pick the most qualified!

  • Paul C.

    Excellent show! Tom Ashbrook kept asking if it was all about getting the right faces in the group picture. I want to say, “yes,” it is important to get the right faces in that portrait. Without a blend of faces in that picture the court will loose legitimacy with the public, and when it looses legitimacy it looses its power. The court does not have to be a statistical mirror of the populace, but we’ve got to do better than what we have now!

  • Joe B.

    Earth to Putney Swope, Earth to Putney Swope, the mothership has refueled and is ready for takeoff, make sure you’re onboard.

  • millard-fillmore

    I still remember that it was the Supreme Court justices who placed George W. on the throne launching and enabling the oligarchic pathocracy we are all stuck with, now.

    Whoa. Slow down Mari. First of all, the US Presidency has been an oligarchy long before Bush Jr. appeared on the scene.

    And while I’d agree that 2000 election results in Florida were mishandled, either way, it’d have been Supreme Court judges who’d have decided who won. So why is it so bad if the judges decided in favor of Bush? The same argument would apply if they had decided on Gore, no? Or is it that the judges are partisan/ideological if they decided on Bush, but are making a sound judicial decision after carefully considering all facts if they’d decided on Gore. Nice logic there.

  • Putney Swope

    gee Joe B you seem to me your missing the point.
    Obama won, he’s the president, you don’t like his politics, you cry foul and make stereotypical remarks that mean nothing, just empty rhetoric.

    Instead of having something intelligent to say you make a snide remark. Just like the right wing talking heads of late going on about mustard on burgers. You have no game as they say in basketball. The right seems to be a vacant lot full of outmoded ideas about tax breaks and small minded government. In case you wondering what I put on my burgers, which I don’t eat very often, I like mine with ketchup and mustard.

  • Putney Swope

    As for the mothership the Parliament-Funkadelic’s and I will be partying hard on that ship…

  • Joe B.

    Putney Swope, your social worker is calling, pick up the phone!

  • http://Facebook-610716281Twitter-paulblackman Paul Blackman

    A name that has not been mentioned publickly, but deserves consideration is Sue Bell Cobb, Cobb is currently the Chief Justice of the Alabama Supreme Court, Before this she has practiced virtually all over the local and state courts since 1982. Someone with her wide range of jurisdictional experience would take a more strong local approach balancing the appropriate reach of the constitution on local issues.

  • Frank

    It would be good to get a good looking chick in the picture. No?

  • Richard Cole

    “… the Constitution does not say “the right to life, liberty, HEALTH, and the pursuit of happiness” not because they didn’t think it important but because they didn’t think of it AT ALL.” Dan O’Dea, May 12, 2009, 9:26 am EDT

    Dan, not only does the Constitution not include “health” in that line, it doesn’t include the line at all. You, like many others, are confusing the Constitution with the Declaration of Independence (a very radical document, indeed).

    Some of the posts object to “strict constructionists”. Not to worry, there aren’t many. 220 years of case law have blurred the meanings of much of the Constitution, which on the whole was pretty easy to read. Still, with a strict constructionist one has some idea of what to expect, most of the time. Even with the current Court composition I sometimes think there must be some crazy juice in the Washington, D.C., water supply.

    Obama “center”? Lenin would have had him ousted for being too far to the left!

    Now, I was thinking Condoleezza Rice might make a good Justice, as she meets many of the politically correct requirements, but aside from being fairly conservative, she doesn’t meet all of them. Boiling down the broadcast the requirements look like this: A female, formerly male, Puerto Rican, homosexual, a kleptomaniac, manic-depressive, alcoholic, autistic, dyslexic, one-armed, formerly Jewish Moonie.

    How is it that many of these posts are dated before the program was broadcast? The first is noted as shortly after midnight on the broadcast date. (May 12th, 2009 at 12:59 am EDT)

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