My, err, soon-to-be-colleague Richard Cohen has an op-ed today arguing that Obama's next Supreme Court justice should face a "litmus test." But not on abortion. Rather, the next nominee to a Supreme Court that's 88 percent male and 77 percent white male should have to agree that "there is no need to cling to such a remedy" as affirmative action anymore. "Maybe once it was possible to argue that some innocent people had to suffer in the name of progress," Cohen allows, "but a glance at the White House strongly suggests that things have changed. For most Americans, race has become supremely irrelevant. Everyone knows this. Every poll shows this."
Well, if "everyone knows this," then it seems that the Supreme Court would, by definition, agree, right? In any case, this is as good a time as any to plug my column from yesterday arguing that the Supreme Court needs some straight-up gender preferences. I argue:
Few would publicly argue that the Court has a duty to be liberal or conservative (or stacked with young appointees who have very low cholesterol), the institution does have to be considered legitimate. It is responsible for a country that's 51 percent female and whose law graduates are 48 percent female. Its highest profile cases revolve exclusively around things that happen in a woman's body. If we were aware of those facts and were stocking the Court from scratch, there is no doubt that we would strive for more gender balance.
Viewed from that perspective, the situation clarifies considerably. The reason white men are disadvantaged in this nomination process is pretty simple: They are not, right now, what the Court needs. They are not the best candidates for the job.
Full column here.