Set-aside set-to: if you're going to practice affirmative action on the Court ...

WHEN President Bush nominated Harriet Miers to replace Justice Sandra Day O'Connor, adopting the view that there is a set-aside seat on the Supreme Court for a woman, he made clear that he wasn't merely redressing the bad old sexism his nominee faced as a young lawyer over 30 years ago. Calling Miers "a pioneer in the field of law," he credited her with "breaking down barriers to women that remain a generation after President Reagan appointed Justice O'Connor" (emphasis added). During his announcement of Ruth Bader Ginsburg's nomination in 1993, President Bill Clinton teared up at the injustice his gender warrior faced; President Bush remained dry-eyed, but the nomination of his own pioneer reflects the same gender-grievance politics.

The White House freely admits that the president limited his second search for a replacement for Justice O'Connor to women and minorities. The day before he announced his pick, the liberal Austin American-Statesman ran an editorial counseling that "Bush should put another woman on the court." Any suggestions? "Plenty of capable women are on the president's short list, with Harriet Miers, a moderate Texas lawyer and former State Bar Association president, being among the most notable."

The First Lady and the retiring justice herself both lobbied for a female nominee. When John Roberts was named as her successor, Justice O'Connor said that she was "disappointed, in a sense, to see the percentage of women on our court drop by 50 percent." The public, however, doesn't share her disappointment: In a Gallup poll taken after Miers was nominated, 82 percent said they would not have been bothered had Bush chosen a man for the seat. In a speech to an audience at the New York City Bar Association before Miers was nominated, Justice Ginsburg explained that even she wouldn't be disappointed if a nominee's sex weren't the decisive qualification. Ginsburg said that, for the next nominee, just "any woman will not do"; she worried that there are "some women who might be appointed who would not advance human rights or women's rights." Ginsburg recognizes that what a fellow justice will do on the Court is far more important than whether another set of black robes will be adorned with a lacy cravat.

The history of the first two women on the Court raises questions about the special approach to constitutional interpretation they are expected to bring to their work. In the New York Times Magazine, Jeffrey Rosen points out that between 1994 and 2004 Justice O'Connor voted more often with six of her male colleagues than she did with her sister justice--but Rosen does allow that O'Connor's support for affirmative action may have been shaped by her early difficulties in getting a job when she graduated third in her class from Stanford Law School. He speculates that Harriet Miers "may be similarly sensitive to women's issues because she, too, experienced job discrimination." Given President Bush's emphasis on Miers's trailblazing through hostile male territory over 30 years ago, he, too, would presumably not be surprised if, like O'Connor, she carried old grievances onto the Court.

But the point of trailblazers is that others come behind, and benefit from the path that has been cleared for them. It is 2005, not Texas circa 1970. Women now make up half of all law students, over 150 women are federal district-court judges, and almost four dozen are on federal courts of appeals. Today, there are scores of women whose credentials match those of the male lawyers typically seen as Supreme Court contenders.

Although it was the White House itself that held the view that women couldn't be expected to compete equally with men, when conservatives objected to the nomination of a candidate whose chief qualifications are her sex, her success as a trailblazer a generation ago, and her friendship with the president, Laura Bush echoed the White House charge that sexism seemed to be playing a role in the criticism. Gender warriors happily took up the charge--Sen. Barbara Mikulski said, "All of a sudden, when you pick a woman, we know that we always have to be twice as good."

The White House surrogates who weren't leveling charges of sexism at critics of the nomination were busy patronizing the nominee. On Meet the Press, Dr. Richard Land of the Southern Baptist Convention explained that he supported the nomination of someone the president has known for 15 years because "I believe he picked her because he knows her that well and that he knows she will vote the way he would want her to vote." Sen. Orrin Hatch quickly endorsed the Miers nomination, saying, "She's going to basically do what the president thinks she should." In the name of heralding women's achievement, the case for Harriet Miers has the distinguished lawyer wearing a W.W.G.D. (What Would George Do?) bracelet on our highest court.

Without a nominee whose credentials and jurisprudence speak for themselves, Miers supporters bootstrap her qualifications for the Court on John Roberts's long experience and dazzling performance during his hearings. The White House touts Miers's role in the selection of Roberts, and Land apparently expects her to follow his lead obediently: "I'll make a prediction for you. When she is confirmed, over the next five years, she and John Roberts will disagree about 1 percent of the time."

Although Miers has virtually no record on constitutional jurisprudence, she was the first woman hired by her Dallas law firm, the first female president of the Dallas Bar Association, the first female president of the Texas State Bar, and the first woman to head a major law firm in Texas. Owing to her pioneering practice, she is now the third woman to be nominated for the Supreme Court. But because he felt he had to nominate a woman, President Bush adopted a sex preference and overlooked far more qualified men; the destructive effect of such affirmative action is that there is no way to know whether Miers's earlier accomplishments were the result of a similar sex preference.

The president could have ignored the phony calls for diversity that mask a desire for judicial liberals and nominated a superbly qualified candidate, like John Roberts, regardless of sex; he could also have selected a woman who reflected women's full equality. He had the opportunity to acknowledge the talented, ambitious women lawyers who have followed trailblazers like O'Connor and Miers, and used the equal opportunity available to them to prove themselves fully equal to their male counterparts. Instead, he adopted a set-aside that sets back women by about 30 years.