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What Would a Ginsburg Vacancy Mean for the Supreme Court?

The Supreme Court's only woman justice is battling pancreatic cancer.
 
 
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WASHINGTON -- Supreme Court Justice Ruth Bader Ginsburg's renewed struggle with cancer is both a demonstration of courage and a dismaying reminder that she represents a quota of one.

Ginsburg, who has pancreatic cancer, says she intends to resume her duties on the high court before the end of February, a quick return after surgery and harrowing treatment for a disease that is difficult to overcome. That is the courageous part.

The cheerless truth is that Ginsburg's ill health brings to mind her unique position. She is the only female jus tice, and has been since Sandra
Day O'Connor left the court in 2006. Certainly if Ginsburg's health fails and she is forced to retire, President Barack Obama would be under intense pressure to appoint another woman to fill her slot. With women voters providing Obama's margin of victory in last year's election, there is little doubt that he would do so.

But what then? Would a second vacancy automatically go to a man? That is how it usually works. This use of women as tokens must now be reversed.

Justice Clarence Thomas is the sole African-American sitting on the high court, and the only member of any racial minority group. All ethnic groups legitimately aspire to greater representation. But why set up a zero-sum game in which the advancement of one means the other must wait?

Women -- of all ethnic backgrounds -- are not a minority. We are a majority of the population and a majority of the electorate. Women earn about half the law degrees awarded each year, and comprise well over half of those earning bachelor's and master's degrees. Still, we are treated as a cranky interest group to be placated, and rarely given our rightful place in leadership.

But when women lead, something extraordinary happens: Suddenly the voice of more than half the population can be heard.

This was the voice that called out almost immediately after President Ronald Reagan appointed O'Connor as the first woman justice in 1981. Though she was appointed by the icon of the contemporary conservative movement -- and is best known as a centrist, swing vote on the high court -- O'Connor's most consistent votes were those she cast in favor of equal treatment for women. Her vision became apparent quickly, when she wrote the majority opinion in a 1982 case involving an admissions policy at the University of Mississippi nursing school, which favored women over men. O'Connor attacked not just the illegality of the policy but its pernicious message. The admissions rule, she wrote, "tends to perpetuate the stereotyped view of nursing as an exclusively woman's job" and so "lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy."

Ginsburg, in a stinging dissent to the court's 2007 decision toughening the rules governing when a woman can sue for sex discrimination in the workplace, took her colleagues to task for overlooking "common characteristics of pay discrimination" -- that is, year-to-year pay decisions that add up to long-term discrimination are often hidden from the employee. They might not be apparent or challenged immediately in court, Ginsburg wrote, "particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves." The ruling in this case, involving tire company supervisor Lilly Ledbetter, was just overturned in legislation that resets the rules to what they were before the Supreme Court decision.

O'Connor, a Republican and a Westerner, and Ginsburg, a Democrat and the personification of the Eastern intellectual, brought few similarities in personal background to the Supreme Court. Yet they shared an outlook as women who suffered blatant discrimination early in their careers. Both understood intuitively that women experience life differently than do men, and often saw the legal issues before them through that lens.

In 2007, Ginsburg told USA Today that she was "lonely" without O'Connor at the court, and worried about the symbolism implicit in having a sole woman justice. The message, she said, is that having a woman on the Supreme Court is a "one-at-a-time curiosity, not the normal thing."

"Normal" would be having a Supreme Court on which four or five justices are women. And if this sounds like a fantasy, it is only a measure of just how abnormal the high court's makeup is now.

Marie Cocco's e-mail address is mariecocco(at)washpost.com.

(c) 2009, Washington Post Writers Group
 

 
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