The Fight Is On, But Be Not Weary

Cross-Posted at Memento Moron.

So Supreme Court Justice Sandra Day O'Connor is retiring.

Good.

As Ace has pointed out, O'Connor has been inconsistent, even self-contradictory, in her rulings, and her opinions tend to muddy the waters, not clear them, which is one of the main purposes of the court.

So who will replace her? I honestly don't know. I'm not a legal wonk, and don't know the roster of judges from whom to choose. I will make one predicition:

It will be a woman.

The precedent, if you'll pardon the pun, was set when Clarence Thomas was nominated to fill the vacancy left by Thurgood Marshall. It can be argued either that Bush 41 knew that any nomination other than another African American would be attacked as being damaging to the progress of Civil Rights, or that he made sure his nominee was black to defuse any furor over his nominee's politics (a tactic that failed, as we all recall), or, most likely, both. Based on this precedent, I find it highly unlikely that we'll end up with anyhting but another woman to replace O'Connor. The perception has become that if the position was filled by a minority in the past, it must be filled by that same minority in the future. And that's too bad.

Don't get me wrong -- I'm not saying there are no women qualified for the position, nor that the MOST qualified candidate isn't a woman. Again, I don't know who the candidates are. But I am arguing that it shouldn't be a prerequisite that the candidate be a woman.

The reasoning behind the trend are understandable, if mistaken. It's the same reason that people alaways want to see more minority members of congress, or of the workplace. The argument is that those places should be representative of the population. And in the case of Congress, it's at least an arguable point. A representative from the same ethnic group and culture may be better equipped to represent their desires and opinions and priorities.

But the Supreme Court is not intended to be the House of Representatives. It's the judicial Branch, not the Legislative. It's job is to interpret the law, not make it. Thus, the prime requirement for a member of SCOTUS should be an understanding of the Constitution.

Not membership in a particular demographic.