BACKTALK | fall 2005
This summer I took the train up to Philadelphia to lecture at the National Constitution Center. While the exhibits that chronicle our Constitution thoroughly impressed me, each new artifact served as a reminder that no one who looked like me—black, female—shaped the document that has done the most to influence our nation.
It wasn’t until 1981—194 years after the U.S. Constitution was drafted—that a woman was finally allowed to weigh in on the document. The ascendance of Sandra Day O’Connor to the U.S. Supreme Court marked the first time a woman could offer formal and lasting opinions on what the Constitution protects and prohibits for its citizens. O’Connor has had a mixed legacy as a justice, but it’s one that firmly paints her as a pivotal voice on issues of equality, justice and fairness.
Unfortunately, Justice O’Connor will soon end her tenure. And come October, when the new Supreme Court term begins, the Court will most probably have lost half its representation of women. President George W. Bush ignored popular calls—including comments from his wife, Laura—and nominated a man to fill Justice O’Connor’s seat.
Her absence on the Court will pose a unique disadvantage for women, as we have lost a swing voter on issues that matter to women as well as minorities. Consider this: The Supreme Court relies on a document that did not consider women or racial minorities when it was written. True, the Framers calculated seemingly genderless boundaries between private and public, individual and society. But without a single woman’s opinion weighed, and with Abigail Adams’ call to husband and Founding Father John to "remember the ladies" scoffed at, it is hard to believe that the group had full knowledge of what rights and protections were important to all of its citizens—especially the female majority.
The Framers gave us guidance on male-oriented issues such as guns and acceptable punishment, but with no women attending the Constitutional Convention in Philadelphia, issues of particular concern to women, such as reproductive rights and what constitutes equal protection under the law, weren’t mentioned. That’s why they’ve been left up to continuous interpretation for more than 200 years—and that’s why, unquestionably,women and minorities must be on the Supreme Court when such discussions take place.
As a black woman, I can take some comfort that women will not be completely forgotten, because the Court is still left with Justice Ruth Bader Ginsburg. But some of us are familiar with the pressure than can be placed on an individual when she is the lone one (woman, minority) in the company of men. Often, we are challenged to give our unique insights about issues because of our special life experiences. With O’Connor, the Court had not only a smart and intelligent woman, but the perspective of someone who worked in the political arena as an elected official, accountable to all citizens.
Justice O’Connor fully recognized the importance of women serving in the judiciary. When she heard of Bush’s new nominee she replied that Judge John Roberts was “good in every way, except he’s not a woman.” While the president purportedly cast a wide net to review myriad candidates, he decided that a white male was most qualified for the job. What a missed opportunity.
From what we know about Judge Roberts’ record on the District Court of Appeals, he’s no Sandra Day O’Connor. His stated views on choice, affirmative action and other civil rights issues appear to cast him in the mode of the man he once clerked for, Chief Justice Rehnquist, or even as ultraconservative as justices Scalia and Thomas. There’s no question that every feminist must call upon the U.S. Senate to do its homework before confirming Judge Roberts to the Supreme Court.
At this point, all we can hope for—outside of waiting for the next election—is to see if the president will give serious consideration to selecting a woman or racial minority in the future. Don’t expect any judge elected by this conservative president to find someone agreeable to us on all the issues. Let’s just hope the next nominee has an open mind and is willing, like O’Connor, to help steer America down the path of equal rights, opportunity and freedom for all citizens.
Psssst… Mr. President, next time listen to your wife.
Donna Brazile is adjunct assistant professor of women’s studies at Georgetown University and is chair of the Democratic National Committee’s Voting Rights Institute. She is also the author of Cooking With Grease: Stirring the Pots in American Politics (Simon & Schuster, 2004).