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The Case for a Diverse Bench -- and Congress

Rob Richie and Cynthia Terrell // Published June 29, 2009 in Roll Call

In the midst of the heated rhetoric surrounding Judge Sonia Sotomayor’s potential ascension to the Supreme Court, it’s time to ask how much we value fair representation, particularly of women.

Ruth Bader Ginsburg is the only female justice on the court — and only the second in history. In light of such imbalance, it was widely accepted that President Barack Obama would nominate a woman. Sotomayor’s potential to be the court’s first Latina member also was an unquestioned factor in her selection.

Ironically, Sotomayor has stirred most controversy for a 2001 speech on the role of a judge’s background in which she said, “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

While not particularly politic, her statement essentially explains the consensus behind the value of nominating a woman and person of color. Having diverse representation isn’t just for show: There are substantive reasons to value people with different backgrounds and experiences. From their earliest years on playgrounds and in schools, girls and boys are treated differently. Women are more likely to be the primary caregivers of children and the elderly. They are more likely to have close friends who are women, sharing their experiences at work and in relationships.

A Latina also will have different experiences than many other Americans, and her community of family and friends will experience a different side of our society. There’s nothing wrong with recognizing that when judges confront the thorniest issues dividing our society, a court grounded in more diverse experience will engage in deeper conversation and produce more complete, representative decisions. Courts must vote “yea” or “nay,” but there is much room for nuance in how opinions are shaped and written.

The demand for greater diversity is equally compelling for our legislature. A Supreme Court with six white men, one African-American man and two women doesn’t look like America, but reflects it more than today’s Congress. Only 17 percent of Senators are women — higher than the appalling 2 percent level at the time of Justice Clarence Thomas’ nomination but far short of parity. Eighty-three percent of House Members are men. Only three Senators are African-American or Latino. With Florida’s Mel Martinez (R) retiring and Illinois’ Roland Burris (D) plagued by scandal, their numbers could soon dwindle to one.

Across our 50 states, only seven women serve as governors, eight as lieutenant governors and four as attorneys general. The number of women in state legislatures is 24 percent, only slightly higher than the 21 percent rate of female state legislators 15 years ago. The South Carolina state Senate lacks even a single female member, and the number of Republican female state Representatives is at its lowest since 1988.

It’s time to address such distortions in representation directly. Just as the Obama administration found numerous women highly qualified to serve on the Supreme Court, parties and interest groups should look harder for qualified female candidates. Not every potentially strong candidate will nominate herself — she may need to be asked.

The biggest barriers are our current electoral laws. In the spirit of President Obama’s belief in the importance of more women serving on the Supreme Court, he should establish a national commission to examine barriers to election of women and people of color. Substantive reforms should be on the table, such as an increase in the size of the U.S. House, multi-seat districts rather than single-member districts, proportional voting rather than winner-take-all, and inclusion of gender in the Voting Rights Act.

If Sotomayor is confirmed, we don’t want to wait another generation for a third woman justice. Many women are well-prepared to serve on the court and in other high offices. Once they do, we expect their “richness of experiences” will strengthen our institutions — not to make better decisions than men, necessarily, but to contribute to decisions and policies more representative of our nation.

Rob Richie is executive director of FairVote in Takoma Park, Md. Cynthia Terrell works in FairVote’s Program for Representative Government.