LAURA BUSH APPEARED ON NBC'S Today show last Tuesday, speaking from a classroom in Cape Town, South Africa. She answered a couple of questions about the Supreme Court vacancy created by the resignation of Justice Sandra Day O'Connor, volunteering that she "would really like for [her husband] to name another woman." Asked later that day about his wife's comment, President Bush replied that he had "talked to her yesterday. And listen, I get her advice all the time. I didn't realize she put this advice in the press. She did? Well, good. We're definitely considering people from all walks of life."
So the president and Mrs. Bush talked on Monday. Then Mrs. Bush just happened to tell NBC, in the midst of the controversy about a possible selection of Attorney General Alberto Gonzales to the Court, that she hoped her husband would pick a woman. (She did leave him an out: "I know that my husband will pick somebody who has a lot of integrity and strength. And whether it's a woman or a man, of course, I have no idea.")
Just like that, the president and Mrs. Bush found a gentle way to tell the attorney general that he was not going to be appointed because he is not the suitable sex. Or so it appears. Now, while the president in principle should simply appoint the best candidate regardless of sex, race, height, looks, and all the rest, we are aware that politics affects the Supreme Court nomination process. So if the president wants to appoint a woman, that's fine. As long as she is a good woman. And in 2005, a good woman is not hard to find.
This wasn't really the case--at least with respect to potential Supreme Court nominees--in 1981. But during the last quarter century, more and more women have entered the legal profession, and the cause of constitutionalism has advanced in the law schools and the courts. These two trends together have resulted in almost an embarrassment of female riches. There are now plenty of women with impressive careers at the bar or in law schools or on the bench--and with sound jurisprudential views--for the president to consider. Forty years or more after Alexander Bickel and Robert Bork and Antonin Scalia and Walter Berns and Richard Epstein began teaching and writing, thirty years after neoconservatism provided a broader intellectual home for constitutionalism, more than twenty years after the founding of the Federalist Society, President Bush can reap the fruits of those efforts. He can make his wife happy, he can make constitutionalists happy, and he can do a good deed for the Court and the country with a sound Supreme Court pick in the next couple of weeks.
Last Thursday, senators Susan Collins and Olympia Snowe of Maine, along with Barbara Boxer of California and Mary Landrieu of Louisiana, sent a letter to Justice O'Connor urging her to reconsider her retirement, and suggesting that she accept a nomination for the allegedly about-to-be-open position of chief justice. But the senators are behind the times. They are captive to a reactionary feminism that may have been plausible when Justice O'Connor was appointed in 1981 from a very short list of possible female candidates for the Court. Today, if the president wanted to replace not just Justice O'Connor with a capable, proven constitutionalist who is a woman, but also Chief Justice Rehnquist (when he steps down) and for that matter Justice Stevens or Justice Ginsburg (when either steps down), he could do so.
For now, he just has to worry about the O'Connor vacancy. For that seat, President Bush would improve the Court by appointing any from a long list of well-qualified women. Among them are federal appellate judges like Edith Jones, Edith Brown Clement, and Priscilla Owen on the 5th U.S. Circuit Court of Appeals, Janice Rogers Brown on the D.C. Circuit, Karen Williams on the 4th Circuit, and Alice Batchelder on the 6th Circuit; distinguished law professors like Mary Anne Glendon, Learned Hand Professor of Law at Harvard, and Lillian R. BeVier, John S. Shannon Professor of Law at Virginia; and state court judges like the impressive Maura D. Corrigan, who served on the Michigan Court of Appeals from 1992 to 1998, and has been on the Michigan Supreme Court since then, including a stint as chief justice. And the list goes on.
So our advice to the president is: Consult extensively, don't listen to the suggestions of most of those you consult, pick a well-qualified female constitutionalist, win both the confirmation fight and the political debate, and begin to take back the Court.
- William Kristol