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Category: Politics

Obama’s Supreme Court Choice: Plenty of Talent—and an Opportunity

| April 19, 2010

Elena Kagan

A half dozen extraordinary women occupy the White House list of candidates to replace Justice Stevens on the Supreme Court, according to reports. The author argues that President Obama should seize this chance to make a historic step toward true diversity at the top of the judiciary system.

Is the United States Supreme Court ready for another woman or its first African American female jurist? Six women are in serious contention for the seat of retiring Justice John Paul Stevens, including Elena Kagan, Diane Wood, Jennifer Granholm, Janet Napolitano and Martha Minow. One candidate, however, is earning some unique buzz, Leah Ward Sears—an African American former Georgia chief justice who made the White House short list, as did others of the women, in 2009.

In the 220 year history of the Supreme Court, only three women have served. Of the nine current justices, only two are women and only one is African American. Progressives applauded President Obama’s selection of Justice Sonia Sotomayor last year, but there is more work to do in order for the nation’s highest court to reflect our nation’s rich diversity. Women make up 50 percent of the nation; shouldn’t more than two women—Justices Sotomayor and Ruth Bader Ginsburg—be serving on the high court?

The women on President Obama’s short list present a field rich with promise. The President told Americans in 2009 that he wanted a justice with life experiences, high intellect and the empathy factor. "Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers . . . is a necessary ingredient in the kind of justice we need on the Supreme Court," Obama told the nation in nominating Sotomayor. All six potential nominees fit this description.

Elena Kagan was an outstanding professor and Harvard law dean before becoming U.S. solicitor general, a first for women. While she supports gays serving openly in the military, Kagan might give some liberals pause for supporting the legality of detainees’ detention without trial.

A 15 year veteran on the 7th Circuit Court of Appeals, Diane Wood was a University of Chicago law professor before moving onto the federal bench. Known as a “rock star” of writings, Wood has written numerous articles on diversity, sex discrimination, U.S. Constitution and antitrust laws. Her rulings include several supporting abortion rights.

Janet Napolitano, currently secretary of Homeland Security, is a former federal prosecutor. She became attorney general and then governor of Arizona, rising to national prominence as a Democratic governor in a heavily Republican state. As a lawyer at a Phoenix-based firm, she was part of the legal team representing Anita Hill in her sexual harassment suit against then-Supreme Court nominee Clarence Thomas.

Harvard law dean Martha Minow, who succeeded Kagan in that position, is an expert in human rights, having advocated for minorities, women, children, persons with disabilities and religious freedom. She has taught at Harvard since 1981.

Jennifer Granholm is distinguished not only for becoming Michigan's first female attorney general, but today she serves as the state’s first female governor. A former federal prosecutor, her focus as the state’s top lawyer was on consumer protection and protecting citizens.

 In 2005, Georgia’s Leah Ward Sears became the first African American woman to serve as chief judge of a U.S. court. Ivy League-educated, she rocketed to the Georgia bench in 1992, becoming the youngest and first woman to serve on the Georgia Supreme Court. Coming from a military upbringing, Sears is known in progressive circles as one who is not afraid to speak her mind in a conservative state, dissenting on all Georgia cases involving death by electrocution as unconstitutional and inconsistent with decency standards. The Georgia Supreme Court ultimately agreed. She argues on grounds of fundamental fairness for a defendant’s right to competent counsel in every proceeding affecting the taking of a human life. She voted with the majority in overturning Georgia’s anti-sodomy law and overturned a 10 year sentence for a teenager convicted for having consensual oral sex with a female based on Georgia’s archaic sex-offense laws as being “grossly disproportionate” to the crime. That’s the empathy factor.

Sears’ work is not without some debate. Although progressive on gay rights in opposing anti same-sex marriage ballot amendments, her involvement with the Institute of American Values, which supports “traditional” marriage, is questioned by some liberals and the LGBT community. Yet, she also raises the ire of conservatives with her work in the American Constitution Society, known for its progressive values on access to justice, individual rights and equality under the constitution.

Timing is everything, and after a major fight on health care reform, President Obama may not be ready to venture into prolonged conflict. On the other hand, his health care victory may embolden him to seize this opportunity to add fresh perspective to the Supreme Court panel. True diversity on the court should reflect the true diversity in America.

Women including African American women have served as secretary of state and in the Senate and House of Representatives and run for president. Isn’t it time a qualified African American woman serve on the Supreme Court?

Quite frankly, it’s well overdue.

The views expressed in this commentary are those of the author alone and do not represent WMC. WMC is a 501(c)(3) organization and does not endorse candidates.

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