It doesn’t have to be a woman

THE COUNTRY can breathe a sigh of relief that President Bush, not usually one to admit mistakes, had the humility and wisdom to withdraw his nomination of Harriet E. Miers.

Now, to avoid a similar debacle in the future, the president should remove from his decision-making process the misguided principle that helped drive the Miers fiasco: the idea that gender (or, in other cases, race) should play a role in Supreme Court nominations. In retrospect, it’s absolutely clear that, given her lack of judicial experience, her apparently unsophisticated constitutional philosophy and her abysmal writing skills, Miers never would have been nominated if she had been a man. But having just appointed a white male to be chief justice, and faced with the resignation of Justice Sandra Day O’Connor (one of only two women on the court), Bush and his advisors clearly felt that the next pick had to be a woman.

This is completely unacceptable. Although there undoubtedly are many plausible female contenders for the court, they should be selected only if they are found, after close examination, to be the best possible candidate. To do any less -- to grab the nearest woman and nominate her to the highest court in the land -- is an insult to women and a dangerous assault on the rule of law.

Two reasons are usually given for taking gender into account in judgeships: Women think differently than men, and women need role models. Neither of these withstand scrutiny.

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.

If tribal loyalties -- to one’s gender or race -- determine legal outcomes, then there is no point in having a Constitution in the first place, which is premised on the idea that neutral rules can constrain political will.

And the idea that women are best-suited to understand the “female” perspective on legal issues will come back to haunt its proponents. If women are so expert in matters affecting women (or minorities in matters affecting minorities), then the corollary must be true: Women are less qualified to rule on matters affecting men (or minorities on matters affecting whites), which should be left to white males. Of course, every proponent of identity politics insists on having it both ways: The identity politician simultaneously asserts a special expertise regarding identity issues while claiming that she is equally qualified to take on issues outside her identity.

The second argument for taking gender or race into account in judicial appointments is that women and minorities need role models. But this assertion is not only demeaning to its alleged beneficiaries, it is illogical. It assumes that women and minorities can only be followers, not pioneers. If a woman can only follow where other women have already tread, that means that all-male fields must forever remain all male. Breaking into a traditionally male occupation, however, requires someone to go first. A suggestion: If a woman insists that she needs a role model to aspire to the highest challenges, let’s encourage her to take gender out of the equation. Want to be a pioneer in nuclear physics, for example? There are plenty of nuclear physicists to model yourself on. Women shouldn’t limit themselves to emulating other women.

The Supreme Court is too important an institution for us to allow it to fall victim to identity politics. Republicans have on occasion tried to distinguish themselves from Democrats as the party of merit, not of crude tribalism or thoughtless political correctness. It’s not too late to reclaim that mantle. In making his next Supreme Court nomination, Bush should be blind to everything but the legal acuity, knowledge of constitutional history and command of language of the candidates.