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Bar News - October 21, 2005 Male or Female, a Judge’s Job Is To Protect All People By: Lucy C. Hodder
I was asked whether gender matters in the selection of the next U.S. Supreme Court justice to replace retiring Justice Sandra Day O’Connor. Professionally, as a lawyer and litigator, I would answer “no.” There should be no designated “female” seat on the court. The Supreme Court is too important for that. Our politicians should select a justice who has a brilliant and inquiring mind, a demonstrated ability to be impartial and a complete respect and understanding of our federal laws and Constitution. Personally, I would like to have on the U.S. Supreme Court someone who chooses to remember the experiences that we, our mothers or our grandmothers may have had - the experience of being an adult female citizen of this country yet having no right to own property, to vote, to serve on a jury, to go to the same school as her older brother, to play on a sports team, to join the army, to ensure that the husband who beat her is penalized, to report a rape without fear of public humiliation. Yet that personal view seems overly self-serving. It does not take into account the suffering of many other citizens whose rights have been denied during our history, or the collective success we have had as a country establishing justice and progressing toward a “more perfect Union.” What I believe we need at this time in our history is either a man or a woman who has the courage to remember that our Constitution and our federal laws are intended to benefit and protect the people -all of the people. That sometimes means me, and it sometimes means you. It takes courage to make decisions with that in mind because it’s hard to protect the weak against the strong. As James Madison wrote in Federalist Papers No. 51: “Different interests necessarily exist in different classes of citizens.” It is the purpose of our form of government and the role of our highest court “to guard the society against the oppression of its rulers, [and] to guard one part of the society against the injustice of the other part.” We are not all angels. We are susceptible to destructive and private impulses yet long for reasoned social order. As Richard Kluger wrote in Simple Justice: “Law in a democracy must contend with reality. It has to persuade. It has to induce compliance by its appeal to shared human values and social goals. How well law succeeds in winning, however reluctantly, the abandonment of unjust private advantage is perhaps the severest, and best, measure of that society’s humanity.” It is hard for all of us to face this, yet it is essential if we are to honor our Constitution. Thus, to answer the question: It does not matter whether the next Supreme Court justice is a man or a woman, a black or a white, a Jew or a gentile. What matters is that our politicians look carefully and broadly for a lawyer to serve on this court who has the courage to make the difficult decisions that will lead us slowly forward to a more perfect Union. Lucy C. Hodder, a Concord lawyer, is immediate past chairwoman of the New Hampshire Commission on the Status of Women. She is former chair of the NHBA’s Gender Equality Committee. Reprinted with the author’s permission.
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