Susan Estrich
Sunday, July 24, 2005

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  A USA Today poll taken before the announcement found that 65 percent of all Americans thought it would be a good idea to name a woman, and 63 percent thought it would be a good idea to name a Hispanic.

My friend Bill Kristol, one of the smartest and most outspoken conservatives in the country, had another view. Appearing on the Fox News Channel on the night of the announcement, he apologized for thinking that Bush would appoint a woman, and commended him for instead choosing the most qualified man.

Ouch.

Lisa Kloppenberg, the conservative dean of the University of Dayton School of Law, said she was also surprised that Bush didn't pick a woman because he has tried to ensure that about 20 percent of federal judges are women, but in this case, given all the pressure, picking a woman or a minority "would have been viewed in some circles as a conciliatory move, and I think he didn't want to do that. This was an attempt to say, I'm only looking at traditional legal criteria."

The problem with looking only at "traditional legal criteria," as Ms. Kloppenberg must surely know, is that it will not produce a diverse group.

The people with credentials exactly like Roberts (and I happen to be one, so I have no sour grapes, but I know my crowd) tend to look very much like John Roberts. His career has been a straight shot to the top. Harvard to Harvard Law to the right clerkships to the right government jobs to the top private practice jobs back to government back to private practice back to government.

No breaks. No slowdowns. No second-tier jobs. He has worked for one white man after another. The very few women in these circles do not travel the same path. Both Harvard and Harvard Law School restricted the admission of women when he was a student.

Roberts has two children. Women with his credentials who want children go part time for a few years, or take a second-tier job while their kids are young, which results in lower pay for life, or go on a mommy track, which turns into a dead end. I don't know a single woman with his credentials who made it to deputy solicitor general that fast, or to the court of appeals that fast. My friend Kate was moving very fast, but then she had babies. Even trying to have kids, without success, can slow you down.

Perhaps even more important, Bush will never see himself in the women with these legal credentials the way he does in the Roberts types. I have told this story before, but it summarizes the point best:

At one of my first faculty meetings as a young Harvard professor, we were discussing the ideal qualifications for young faculty members. One after another, my senior colleagues, these men I had revered, spoke at length about the ideal candidate. And in their eloquence, I almost started to laugh when I realized halfway through what was happening: Everyone was describing a younger version of themselves.

Without realizing it, the Ph.D.s were saying we needed more Ph.D.s; the former Law Review president/Supreme Court clerks were arguing for more Superstars; the historian/intellectuals were arguing for more historian/intellectuals and of course, the nontraditional women argued for nontraditional women.

Who is the most qualified person? The one who looks the most like me? When Bush was at Yale, Roberts was at Harvard. When Bush was at business school at Harvard, Roberts was just across the river at law school at Harvard. Could I be the only one who thought the two men looked just a little bit alike?

Some people are still hoping that Bush might promote Roberts to the chief's position when Rehnquist retires and pick a woman then. I'm not betting on it. I think it will be an even more political, hard-edged conservative, who can ensure Bush's legacy on the court.

In the end, it may take a president who looks more like Sandra Day O'Connor to pick a court that looks more like America, than tokenism. Just imagine what could happen if a woman president chose justices who looked like her ...

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