Bench would benefit from 2nd woman
First female to serve high court says justices should reflect U.S.
ASPEN — Retired U.S. Supreme Court Justice Sandra Day O’Connor said in Aspen Wednesday that the court would benefit from the addition of a second female justice.
Diversity in gender, race and other areas such as geographic origin is important to the makeup of the court, O’Connor said during an appearance with Justice Stephen Breyer at this week’s Aspen Ideas Festival, at the Aspen Institute. The two spoke on the topic of how judges are selected in America.
Their comments come as Sonia Sotomayor prepares for Senate hearings on her nomination by President Obama to replace recently retired Justice David Souter on the nine-member court.
The court currently has one woman, Justice Ruth Bader Ginsburg.
“I think it’s helpful in our country that people can look at the Supreme Court bench and have some reason to think that it is somewhat reflective of our country,” O’Connor said. “With no women on it, I didn’t think it was. With one woman, I thought that was a very small beginning.
We’re getting another one. I think that helps.”
O’Connor was the first woman to serve on the nation’s high court, having been appointed by President Reagan. She said the attorney general usually provides input into a president’s selecting of a nominee, and Reagan’s, William French Smith, told her Reagan wanted to put a qualified woman on the court if he had the chance. Smith kept a list of possible candidates.
“Well, his list was pretty short because there weren’t many woman judges and there were even fewer Republican woman judges,” O’Connor said.
O’Connor said Hispanic representation also would be helpful on the court, just as it benefits from having an African-American, Clarence Thomas, as a justice.
“We’re not totally bereft of some diversity on the bench at this point. I think we can do better,” she said.
O’Connor, who is from Arizona, also said having a broader-based geographical representation is important. The issue took on relevance for her when fellow Justice Byron White, a Coloradan familiar with Western water issues, retired in 1993.
“I was very concerned when Byron White stepped down because I could see the immediate effect of people on the court who just didn’t understand those issues, so I’d love to see a few more people from the West,” she said.
Both Breyer and O’Connor said Sotomayor is in for a stressful experience in the Senate confirmation hearings, something O’Connor called a “grilling process with gavel-to-gavel television coverage.” Breyer drew laughs by saying asking a justice about his thoughts on the confirmation process is like asking a chicken about “the recipe for chicken a la king.”
But Breyer called the ordeal part of “not a terrible compromise.” It allows some input into the process of selecting someone for a job that it’s nearly impossible to be removed from, and that by its nature must be separated from the democratic process and protected from the swings of public opinion, he said.
Breyer said he would be fine with justices serving terms of perhaps 18 years, rather than staying on the court for life or until retirement. But both he and O’Connor said such a change would be highly difficult because it would require a constitutional amendment.
The two also voiced concerns over the process of filling lower-level judicial positions. O’Connor is a strong advocate for merit-based selection rather than public election.
“I think you can have very fair (merit-based) systems and I wish more states would do it,” she said.
Breyer pointed to a case in the latest court term in which he joined in a 5-4 majority dealing with a campaign finance matter related to a judge. The court decided the constitutional due process clause was violated when the judge sat on a case involving a corporation after receiving $3 million in campaign funds from an individual involved with the company.
Breyer said it’s important for states, bar associations, legislatures and courts to create rules and regulations to limit or eliminate fairness concerns that can arise in connection with campaign contributions to judges.
He said the biggest problem facing the judicial system isn’t campaign contributions, “but campaign contributions are a manifestation of it.”
“It is that people more and more think of judges as junior-league politicians. All the messages that come to people tell them that.”
He said the media reinforces that message by focusing on 5-4 high court decisions on social issues, and referring to justices as being appointees of this or that president, while failing to mention the 30 to 40 percent of cases in which the court rules unanimously.