Much is being made - not only by the media and some on the left, but by the Obama Administration itself - of how Elena Kagan's confirmation will bring the number of women on the Supreme Court to a historic high of three, or one third of the nine sitting Justices. This fact, we are being told, is not unimportant. And sure, I think it's terrific - but only because she's a Democrat. Were that third Justice, say, Harriet Miers, I obviously wouldn't be as thrilled with the benchmark.
So great, three liberal (we hope), women on the Court: historic, exciting and a long time coming.
However, here's a question:
Obama has already chosen Sonia Sotomayor and Elena Kagan. Does this not box him into choosing another woman if he gets another pick? I ask this because the likeliest seat he will have to fill will be that of Ruth Bader Ginsburg, no spring chicken and recently battling cancer. A Ginsburg retirement would reduce the number of women on the Court back to two. How could Obama then nominate a man to replace her? If hitting the historic threshold of three women is so important, so worthy of note, then isn't maintaining that level once it has been reached just as critical?
It seems this kind of crowing will make it much more difficult for Obama to appoint, say, a Merrick Garland to the Court if it is indeed Ginsburg's robes that need to be filled. And it may be just such a centrist choice that Obama will need to make in a Senate even less dominated by Democrats. But what would Obama say? "Despite the importance I placed on having three women Justices, I just HAD to appoint this man this time out, he was the ideal candidate, even though I passed him over twice before"? It may have made more sense for the President to have gone with the demonstrably liberal Diane Wood now, while he still holds a whopping majority, and to have saved the stealthy Kagan for later, when perceived moderation - and possibly another woman - will be even more required.
To be sure, Obama could go ahead and appoint an even more moderate woman than Kagan next time out... or, of course, pay no mind to the sex of the nominee and select a man. Which would be fine... but then he may not want to emphasize the 1/3 level too loudly now. Because as of this moment, I don't see how he can walk back the bragging and appoint anyone other than another woman to replace Justice Ginsburg. Not that there's anything wrong with that.
Of course, maybe we'll get really lucky and it'll be one in that other bloc of five that he gets to replace, in which case all bets are off. But I'm not holding my breath.
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