Set-aside set-to: if you're going to practice affirmative action on the Court ...(THE SUPREME COURT)(nominating women judges)

WHEN President Bush nominated Harriet Miers to replace Justice Sandra Day O'Connor, adopting the view that there is a set-aside seat on the Supreme Court for a woman, he made clear that he wasn't merely redressing the bad old sexism his nominee faced as a young lawyer over 30 years ago. Calling Miers "a pioneer in the field of law," he credited her with "breaking down barriers to women that remain a generation after President Reagan appointed Justice O'Connor" (emphasis added). During his announcement of Ruth Bader Ginsburg's nomination in 1993, President Bill Clinton teared up at the injustice his gender warrior faced; President Bush remained dry-eyed, but the nomination of his own pioneer reflects the same gender-grievance politics.

The White House freely admits that the president limited his second search for a replacement for Justice O'Connor to women and minorities. The day before he announced his pick, the liberal Austin American-Statesman ran an editorial counseling that "Bush should put another woman on the court." Any suggestions? "Plenty of capable women are on the president's short list, with Harriet Miers, a moderate Texas lawyer and former State Bar Association president, being among the most notable."

The First Lady and the retiring justice herself both lobbied for a female nominee. When John Roberts was named as her successor, Justice O'Connor said that she was "disappointed, in a sense, to see the percentage of women on our court drop by 50 percent." The public, however, doesn't share her disappointment: In a Gallup poll taken after Miers was nominated, 82 percent said they would not have been bothered had Bush chosen a man for the seat. In a speech to an audience at the New York City Bar Association before Miers was nominated, Justice Ginsburg explained that even she wouldn't be disappointed if a nominee's sex weren't the decisive qualification. Ginsburg said that, for the next nominee, just "any woman will not do"; she worried that there are "some women who might be appointed who would not advance human rights or women's rights." Ginsburg recognizes that what a fellow justice will do on the Court is far more important than whether another set of black robes will be adorned with a lacy cravat.

The history of the first two women on the Court raises questions about the special approach to constitutional interpretation they are expected to bring to their work. In the New York Times Magazine, Jeffrey Rosen points out that between 1994 and 2004 Justice O'Connor voted more often with six of her male colleagues than she did with her sister justice--but Rosen does allow that O'Connor's support for affirmative action may have been shaped by her early difficulties in getting a job when she graduated third in her class from Stanford Law School. He speculates that Harriet Miers "may be similarly sensitive to women's issues because she, too, experienced job discrimination." Given President Bush's emphasis on Miers's trailblazing through hostile male territory over 30 years ago, he, too, would presumably not be surprised if, like O'Connor, she carried old grievances onto the Court.

But the point of trailblazers is that others come behind, and benefit from the path that has been cleared for them. It is 2005, not Texas circa 1970. Women now make up half of all law students, over 150 women are federal district-court judges, and almost ...