Reflecting on Harriet Miers

There is the same challenge facing the nation and President Bush: Whom to appoint next. Bush must search more extensively for candidates.

by Abby Bar-Lev

What is the difference between a woman on the Supreme Court and a feminist on the Supreme Court? The recent debacle with former Supreme Court nominee Harriet Miers raised a few volatile questions for feminists and women in this country.

Simply by being a woman, Harriet Miers would have undoubtedly brought at least some valuable perspective to the Supreme Court for the feminist population. Despite political and ideological differences, most women share a certain collective and individual history of sexism and challenges growing up in the United States as a woman. This explains why Justice Sandra Day O’Connor, despite being a conservative appointed by President Ronald Reagan, often plays the swing vote on women’s issues, such as gender discrimination and affirmative action. So if this is the case, should not all women be satisfied with the new nomination as long as it is a woman?

In a word: no. It is important that a woman, of a minority or not, be appointed now to take over O’Connor’s seat on the court. But there is a very strong difference between representation by appearance and representation by substance. Miers, from the little the American people knew about her views, would never have represented the progressive feminist voice. Somebody like former Justice Harry Blackmun however, though not a woman, bettered the lives of countless American woman and, in substance, represented the American feminist majority.

At the same time, it is important for young girls and women to be able to look at an institution like the Supreme Court and see a woman’s face. Even though there are a lot of feminist men, it is still imperative to see women’s faces and know that women are offering their unique perspectives behind closed doors in conference with the other justices.

Miers seemed to be impressive in that she attracted scorn from both the left and right ends of the political spectrum. When Chief Justice John Roberts was appointed to fill the position of chief justice, he was impressive in that he attracted very little scorn from either side of the political spectrum. Granted, Roberts was a talented and smart lawyer and judge, whereas Miers is a Bush crony with little apparent constitutional knowledge and background. Nonetheless, it seemed like much Internet and cable “news” seemed more interested in Miers’ outfits and makeup than in dissecting her qualifications (if they existed) or background as a lawyer. It is clear that Miers faced a certain amount of discrimination for being a woman appointee, though it was sometimes hard to separate it from the honest criticism and scrutiny of her opinions, constitutional knowledge and proximity to the president. It is best that Miers withdrew her nomination. But now there is the same challenge facing the nation and President George W. Bush: whom to appoint next.

Feminists have to really question what is more important for the Court: a woman or a feminist. Of course the two are not mutually exclusive, but one does not necessarily equal or lead to the other. If Bush knows what he is doing, his next appointment will also be a woman (hopefully stinking of a little less cronyism than Miers), but one who is more than simply a female face. If conservatives think I am asking too much, look at the very woman who is to be replaced. A former Republican Arizona state congresswoman, Sandra Day O’Connor came to the Supreme Court as a conservative woman, but not one blind to the discriminations with which women and minorities often struggle.

I am not so foolish as to hope or expect that Bush will appoint a progressive feminist to the Supreme Court. But those who wonder whether a smart, moderately conservative woman – a female John Roberts so to speak – may actually exist somewhere in this country, clearly have not looked hard enough. \More so, the fact that one can hear commentators on the cable news networks offering such doubts highlights how countless women are going utterly unnoticed. There is a plethora of brilliant, talented, qualified women all over this country; women who may appease conservatives in their constitutional philosophy but who have witnessed and understand the necessity of the continuing expansion of constitutional rights to women. To find these women, Bush would do well by actually searching outside the doors of the White House.

Abby Bar-Lev welcomes comments at [email protected]