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Assuming Judge Samuel Alito Jr. is confirmed this month, Justice Ruth Bader Ginsburg will be the only woman left on the U.S. Supreme Court. Ironically, this diminished diversity on our highest court comes at a time when every other sector of society — business, government, education, and the military — proclaims the value of diversity. It is worth remembering that Harriet Miers was only the third woman even nominated to the Court in its more-than-200-year history and that Judge Alito is the presumptive heir to the seat long occupied by Justice Sandra Day O’Connor, the first woman to break the Court’s gender bar. Beyond that historic distinction, Justice O’Connor has had a pivotal influence in decisions affecting the rights of women, racial and ethnic minorities, the poor, and other historically disfavored groups. It may be impossible to measure gender’s impact on judicial decision making and court administration. But the public perception about whether judges are fair and equitable, and their decisions legitimate, depends in part on whether these judges embody the broad range of experiences and backgrounds of the diverse communities they serve. Diversity, as the late 5th Circuit Judge Alvin Rubin noted, brings to the bench a “distinctive medley of views influenced by differences in biology, cultural impact, and life experience.” As former D.C. Circuit Chief Judge Patricia Wald explained, “[S]ince judges constantly interact, a persuasive woman judge can educate and affect her male colleagues in both important and subtle ways.” Justice O’Connor herself has reminded us how the stories told by the Supreme Court’s first African-American justice, the late Thurgood Marshall, about his own life and career came to inform her views on matters of race. At all levels of the judiciary, women and minority judges serve as role models for younger members of the legal profession and show to the broader public the many possible faces of judicial excellence. Studies also suggest that women judges disproportionately promote important systemic changes, such as community and drug courts, innovative and inclusive administrative solutions, and the elimination of barriers to the advancement of other women and minority judges. SOME UNFORTUNATE NUMBERS Gender diversity on the bench is not an issue of too few in the pipeline. A significant pool of indisputably qualified women candidates exists for both the Supreme Court and the lower federal courts. Highly distinguished women serve as chief judges of the U.S. Courts of Appeals for the 5th, 9th, and 10th Circuits and as chief justices of 17 of the states’ highest courts. It is not only on the Supreme Court, however, that gains once thought irrevocable now seem more evanescent. As New York Chief Judge Judith Kaye recently observed, “Numbers matter — a lot,” and troubling signs of retrenchment can be seen in the recent erosion of gains made by women in the judiciary over the course of the 1990s. On the federal bench, for example, while 24 percent of judges are women, only 20 percent of President George W. Bush’s confirmed judicial appointees have been women, compared with 29 percent of President Bill Clinton’s. And while a quarter of state judges are women, they tend to be concentrated in urban areas and in lower courts with limited jurisdiction. In some states, including California and Michigan, their number is increasing. However, early gains are being reversed in other states. Alaska Gov. Frank Murkowski has named only one woman in his 20 judicial selections, reversing his five immediate predecessors’ records and driving the percentage of women judges in his state back to its 1988 level. Similarly, Massachusetts Gov. Mitt Romney has included only four women in his 25 judicial appointees, threatening, as observed by a Boston Globe columnist, “to recast the judiciary as the white male bastion it once was.” Of equal concern is the apparently stalled progress of women in many areas of the broader legal community from which judges are selected. Although women now constitute 28.5 percent of all lawyers, almost 50 percent of all law students, and well more than 40 percent of associates in major law firms, women’s progress at the partnership and firm leadership levels has been glacial. Only three women currently lead the nation’s largest law firms, and the percentage of women partners has risen less than 4 percentage points in 10 years, to only 17.3 percent. In legal academia, women’s rate of progress to full professor has been similarly slow-going, with women’s numbers increasing only 5 percent over the past seven years. Seventy-five percent of all tenured law school faculty in the academic year 2004-05 were male. DEMOCRACY MOVES FORWARD Women have championed the right to be free from gender discrimination for too long to turn around now and say that Judge Alito’s gender disqualifies him from a seat on the Supreme Court. Nor should Justice O’Connor’s seat be viewed as a “woman’s seat.” This would suggest that women could properly be limited to just one or two seats, when rightfully they should constitute no less than half the Court. As Justice Ginsburg observed, her nomination to be the second female justice “contribute[d] to the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers.” If Justice Ginsburg is to become the only female sitting justice, however, her male colleagues must be especially vigilant on the issues of gender equity that come before them. The Senate Judiciary Committee and, if this nomination is sent to the floor, the entire Senate must closely scrutinize Judge Alito’s qualifications and life experience and especially his views on the Court’s role in safeguarding the constitutional and statutory rights of women and those who are, in Justice O’Connor’s words, “at the bottom and the margins of the social order.” It is not enough, in other words, for a future justice to be exceptionally skilled in legal analysis and writing. To earn a seat on the Court, the nominee must have a firm sense of the forward motion of American democracy and the Court’s role in upholding the freedoms and opportunities promised by our country’s founders. The Senate should carefully weigh Judge Alito’s views on long-standing Supreme Court precedents requiring “heightened scrutiny” for gender-based discrimination and the broad interpretation of statutes and remedies that protect women and minorities from discrimination in education and employment, as well as precedents recognizing congressional authority to protect individual rights under the commerce clause. Should these precedents be ignored or overturned, important established protections against sexual harassment and domestic violence would be diminished or lost, as would appropriately tailored affirmative action programs and the right to privacy in areas including choice and contraception. And this is why Judge Alito’s views on the Supreme Court’s role in protecting the full participation of women in every aspect of our society must be painstakingly scrutinized and evaluated. As so presciently contemplated by our constitutional system, it falls on the U.S. Senate to embody the voice of all women, whose rights hang so precariously in the balance.
Vanessa Ruiz, a judge on the D.C. Court of Appeals, serves as president of the National Association of Women Judges. A shorter version of this commentary originally appeared in The Recorder , an ALM publication based in San Francisco.

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