What’s wrong with a rich, African-American centrist?

I’m curious — Would you rather have a rich, white, Harvard-educated country club WASP descended from slaveowners who happens to vote in a liberal direction, or a state-school educated minority woman from a modest background who votes in a more conservative direction?

Zell Miller nominated the current female, African-American Chief Justice of the Georgia Supreme Court (Leah Ward Sears, on Tom’s list of 30). Lest he challenge me to a duel, I am not applying the term “troglodyte” to the formerly Democratic former Senator from Georgia. Calling him a Republican is probably fair, though.

Oh, I see. So you really do have a totalizing concept for how cases must be decided, and other methods are wrong. You haven’t given us the correct method. I suspect that it has words like rational, and deliberative, and neutral. But of course, neutral to you means nothing more than lacking preassumptions that you happen to be conscious of.

It isn’t a matter of every woman deciding every case a certain way, that would be absurd. It is a matter of likelihood of responding to the kinds of arguments I or other progressives want to make. Imagine the Court gets a brief detailing real-life stories of the consequences of teen pregnancy on real women’s lives. Who is more likely to resonate with it, who is more likely to scoff at it for presenting itself in an improper and irrational non-justiciable format. (I’ll give you a hint… Scalia.)

Or what about same-sex marriage rights. Think of the most homophobic people you know… most of them are straight men right? I know from arguing these issues with people for years that women on average are easier to talk to, less likely to totalize every assertion, and more sympathetic to oppression claims. Of course there are plenty of young Thatchers and Albrights and Batchelders out there, especially in law schools, maybe someday no one will recognize different voices.

Of course there is a gender-specific perspective.

Silly me! What’s the distinctly female (or distinctly male, for that matter) perspective on whether the court ought to overrule Dr. Miles and apply the rule of reason to vertical price restraints?

Of course, I didn’t ask whether there’s a distinctly female perspective as a general sociological statement about human beings, I asked specifically about such a perspective in relation to legal questions. I’m sure we could dig out any number of cases where SOC and RGB were on opposite sides of cases, and hundreds of examples if you expand the search to lower court decisions where two female judges came out on opposite sides of the case. And of course, if there really is a gender-specific view of the law, why aren’t all single-gender panels unanimous? It seems to me that there really isn’t a gender-specific viewpoint that affects the way you’re going to contrue law, unless you either have a fairly low opinion of the intellectual independence of women or assume that the role of the judge is to make decisions based on some extralegal source that a distinctly female perspective does exist in. So I submit that if your gender really does change the way you’re generally deciding cases, you’re probably doing it wrong.

Yeah, and there are a whole lot more fans in Fenway and Yankee Stadium than in Tampa Bay or Baltimore. The possibility of occasionally winning seems to be key — both in baseball and the only slightly less slow sport of court-watching

What would you expect after this term of endless disconcerting defeats at the Court, progressives sit around and imagine dream teams… “once we appoint Karlan, watch out Scalia! ooooh, that will be so awesome!” Maybe that’s what the upcoming ACS convention will be like, I hope not.

When I am daydreaming, I imagine progressives getting fed up with appeals to (as Simon says) a non-democratic and (as I say) completely captured federal judiciary. I imagine them getting up out of their seats, going outside, looking around, and figuring out how to re-desegregate the schools and unionize the Walmarts the old-school way. The judiciary was captured 100 years ago too, Lochner… etc… and people didn’t just bide their time waiting for their turn to nominate. They got angry and had general strikes. Now that would be interesting!

Or to put it another way, it freaks me out when self-respecting lawyers can’t see the reason for the Court to at least play at caring for democratic legitimacy. Too much Plato, not enough Kerouac in your diet.

A Democrat will want to correct the gender imbalance on the Court immediately.

What is the correct number of women for the court to be “in balance” gender-wise, Tom, and what is the distinctly male or female perspective on legal questions that demands such a balance? Unless there really is such a gender-specific perspective, I see no reason why we couldn’t have an all-female bench, an all-male bench, or anything in between. The court isn’t a democratic institution, and I see no reason why appointments to it ought to be structured to make it look more like the demographics of society at large. And as I said in the comment linked above, I think this “diversity” goal is not only unsupported by reasoning, but is thinly-supported by its proponents, whom (one suspects) would rather have nine Larry Tribes than three Clarence Thomases, four Diane Sykes, a Miguel Estrada and an Antonin Scalia.

As for Souter, he is relatively young (for the Supreme Court), seems to be in good health, has no familial responsibilities and doesn’t seem to have many interests outside the court. So I don’t understand why he would leave, certainly during Hillary’s first term?