Should Obama's next SCOTUS pick be a woman?

I'll leave the formal recommendations to the president's advisers, since he's getting more than enough unsolicited advice on this.

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But I'll take a quick moment to disagree with the premise that it makes no difference if the president picks a woman and point out the obvious: Of course it makes a difference. The question for Obama and for the senators voting on his nominee is whether they value that difference or not.

The contrast between male and female justices came into play just two weeks ago, when the Court heard "Safford Unified School District v. April Redding." The case involved Savana Redding, a 13-year-old girl from Arizona who was strip-searched by administrators at her junior high school after drugs (ibuprofen, specifically) were rumored to be on school property. After the "pretty horrible" experience, Redding developed stomach ulcers, changed schools and eventually sued the school district.

During the Supreme Court argument, Justice Stephen Breyer allowed he did not understand why a school administrator telling a teen-aged girl to strip down to her underwear would have traumatic effect. "I'm trying to work out why is this a major thing to say strip down to your underclothes, which children do when they change for gym, they do fairly frequently, not to – you know, and there are only two women there. Is – how bad is this, underclothes?"

According to NPR's Nina Totenberg, who was in the room, Ginsburg's eyes "flashed with anger" at Justice Breyer's question. "She seemed to all but shout, "Boys may like to preen in the locker room, but girls, particularly teen-aged girls, do not."

Justice Ginsburg knew why Savana Redding would have been damaged by the moment, just as she alone on the Court knows what it is like to be pregnant, or to carry a child, or face gender discrimination in education or employment.

If the Supreme Court issued purely data-driven decisions about chemical compounds or mathematics equations or string theory, Ginsberg's perspective as the only woman on the Court would as irrelevant as her perspective as the shortest member of the Court.

But because the Court issues subjective decisions, and because those decisions frequently affect women differently than men, a female point of view can make every difference in the world.

The value placed on that difference will determine who our next justice will be.


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