On Supreme Court Quotas

Although I disagree with many of the points made by Rush Limbaugh in this column on the debate over the Harriet Miers nomination, I agree with his larger point: that most substantive policy debate in American politics today is occurring among those lumped together as "conservatives". For example, with so many Senate Democrats predictably voting against anyone Bush nominates for the profound reason that Bush nominated him, that party has sidelined itself from any serious discussion over who should replace Justice O'Connor. (Although some conservatives, like Hugh Hewitt, would have the entire Republican side of the Senate sideline itself. To him, "up-or-down" apparently means "rubber-stamp" and bare competence is less important than making sure that "Justice Sandra Day O'Connor will [not] cast one of her last votes on the most important abortion-rights case in a few years.")

Many blacks, who have historically voted monolithically for Democrats, have begun to feel that they have been "taken for granted" on the basis of their dependable voting. This is a species of the same problem now faced by their party at the national level: When one abandons principles and a thoughtful consideration of evidence to vote reflexively instead, one's power as a voter vanishes. Your supposed friends stop worrying about what you want and your enemies know never to start caring about what you want. And guess what you won't get?

I bring up Democrats and voting because major components of that coalition are women and minorities who reliably vote for Democrats, but are not seeing their interests furthered in the process. Assuming for the sake of argument that the Democratic agenda represents what is best for their most reliable voters, women are supporting a party that has very little power at the national level and this would go for blacks too, except that their reward for supporting the same party close to 90% of the time has already been described.

But what the Democrats say is good for women and blacks and what really is good for women and blacks are not necessarily the same thing anyway. (Fickle voting would have been a way to hold the party's feet to the fire, but it's too late for that now.) Case in point: The idea that only a member of a given demographic can represent other members of that demographic.

This idea gets taken apart today in, of all places, the Los Angeles Times, in a column against Supreme Court quotas for women and minorities.

Last summer, legal commentator Dahlia Lithwick provided a classic example of the "women think differently" argument in the New York Times. A female judge, she wrote, shows "empathy" to victims -- above all, to female victims. A properly sensitive female justice, confronting a constitutional challenge to, say, the 1994 Violence Against Women Act (which made "gender-motivated violence" a federal offense), would uphold the act because it sought to protect female victims of violence.

The fact that the law was patently unconstitutional -- exceeding as it did Congress' powers under the commerce clause -- would not stand in the way of the female justice's mission of helping the weak and oppressed. But empathy for victims, while a wonderful trait in ordinary human affairs, should not influence constitutional decision making. Judging requires the separation of emotions from logical thought.

A serious constitutional analyst does not ask: Is this a sympathetic victim? Rather, he (or she) asks: Is there a constitutional basis for this governmental assertion of power? One may have empathy for a plaintiff and still be compelled to rule against him. Any other approach contains disturbing implications. If female judges are really more likely than men to be influenced by their emotional sympathies, then the outcome of a case may hinge on whether a female or a male judge is hearing it -- an unacceptable proposition in a country that believes in the rule of law.

This reminds me of a discussion I was having with my wife before Bush ever nominated Miers, but when the smart money had him playing dumb at the quota table. My wife thought there was some merit to having a woman on the court. I countered with, "OK. Me or a 'pro-life' woman? It's the ideas a person holds that count."

Protection of individual rights. That's what our government should be doing. Bloc voting does not do this. Nor do quotas. Voter and officeholder alike must be committed not to a tribe, but to the idea that every individual has the same rights and that our government must protect them.

-- CAV

PS: Memo to Susan Estrich: This column may have been written by a woman, but I don't think that's why the Times used it.