Boys Club

Ruth Bader Ginsburg’s health issues raise the possibility that the SCOTUS may soon not have any women on it. If Ginsburg retires, the pressure on Obama to nominate a woman to replace her will be intense. Question: what percentage of the public and of political and legal elites, respectively, would object on principle to such pressure?

I have no real sense of this, other than to note that the percentage would surely be much lower than it was 25 years ago, when Sandra Day O’Connor’s nomination was treated by many people as a kind of novelty choice, as opposed to the amelioration of an unacceptable situation. In other words, how many people would now see an all-male SCOTUS as essentially wrong?

If Ginsburg is the next justice to retire, we’ll no doubt hear a lot of nonsense about how her replacement should be the “best-qualified person” for the job, as if that concept were meaningful. It isn’t, because there are thousands of people who would be fine SCOTUS justices, and whether any one of them in particular ought to be chosen depends on a myriad of factors, including the (in my view correct) judgment that it’s not acceptable to have an all-male SCOTUS, any more than it would be acceptable to have an all-female one.

The reasons for this should be too obvious to have to elaborate, but unfortunately that isn’t the case. Still, the world has changed a lot in the last generation, and my sense is the idea that, in regard to these sorts of decisions, gender diversity matters in a fundamental way is far more widely accepted that it was even a fairly short time ago.