THE COUNTRY can breathe a sigh of relief that President Bush, not usually one to admit mistakes, had the humility and wisdom to withdraw his nomination of Harriet E. Miers.
Now, to avoid a similar debacle in the future, the president should remove from his decision-making process the misguided principle that helped drive the Miers fiasco: the idea that gender (or, in other cases, race) should play a role in Supreme Court nominations. In retrospect, it's absolutely clear that, given her lack of judicial experience, her apparently unsophisticated constitutional philosophy and her abysmal writing skills, Miers never would have been nominated if she had been a man. But having just appointed a white male to be chief justice, and faced with the resignation of Justice Sandra Day O'Connor (one of only two women on the court), Bush and his advisors clearly felt that the next pick had to be a woman.
This is completely unacceptable. Although there undoubtedly are many plausible female contenders for the court, they should be selected only if they are found, after close examination, to be the best possible candidate. To do any less -- to grab the nearest woman and nominate her to the highest court in the land -- is an insult to women and a dangerous assault on the rule of law.
Two reasons are usually given for taking gender into account in judgeships: Women think differently than men, and women need role models. Neither of these withstand scrutiny.
Last summer, legal commentator Dahlia Lithwick provided a classic example of the "women think differently" argument in the New York Times. A female judge, she wrote, shows "empathy" to victims -- above all, to female victims. A properly sensitive female justice, confronting a constitutional challenge to, say, the 1994 Violence Against Women Act (which made "gender-motivated violence" a federal offense), would uphold the act because it sought to protect female victims of violence.
The fact that the law was patently unconstitutional -- exceeding as it did Congress' powers under the commerce clause -- would not stand in the way of the female justice's mission of helping the weak and oppressed. But empathy for victims, while a wonderful trait in ordinary human affairs, should not influence constitutional decision making. Judging requires the \o7separation\f7 of emotions from logical thought.
