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Can men still be appointed to the Supreme Court?

"Just wondering," tweets Kathryn Jean Lopez. "Are men allowed to be nominated to the Supreme Court anymore?"

Putting aside the weird gender politics of this sentence (and the fact that the New York Times hints that Obama's next pick will be Judge Merrick Garland, who is a great big dude), it seems quite far removed from basic statistics.

Assume that men and women are about equally capable of serving on the Supreme Court and there are about equal numbers of them in the country. The chance that two women in a row might be selected? About 25 percent. That is to say, it's the same as the chance that you might flip a quarter and see it come up heads both times. And because the two events are theoretically independent (at least in our hypothetical), once a woman has been chosen for the first slot, the chances that a woman will be chosen for the second slot are 50-50. So Kagan, or someone of her gender, had an even shot.

Two women in a row just isn't very unlikely in an equal world. The 34 male justices we had after women got the vote? Rather more unlikely. The calculator says 0.000000000058. Yipes.

Obviously, that wasn't a random outcome. It was the consequence of systematic discrimination. But Lopez's comment shows how difficult it is to recover from that history. For one thing, Americans like to believe that discrimination is in our past and so nothing has to be done to rectify it in the present. Meanwhile, when Obama got into office, the court had eight men and one woman.

But more subtly invidious is the simple fact that people are so unused to seeing women appointed to the court that it's somehow a scandal to see two of them named in a row. Two women and we're talking about systematic discrimination. And that reaction means that even though the coin says there's an even chance that Obama's next pick will be a woman also, there's probably not an even chance of it, as he'll have to prove that he's not favoring women. After all, it's one thing to appoint 101 men in a row. But three women? Why, that'd be un-American!

By Ezra Klein  |  May 10, 2010; 12:27 PM ET
Categories:  Legal  
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Next: Elena Kagan is not Harriet Miers or David Souter


I remember the cries of sexism and religious litmus test from the republicans when bush appointed 2 male catholics to the SCOTUS. Republicans were asking "Is it possible to nominate a woman to the scotus?" I distinctly remember that...Oh wait...

Posted by: srw3 | May 10, 2010 12:38 PM | Report abuse

Surely in this 21st century where "lesbian" is no longer a dirty word... we're going to soon have a thread about the wisdom of putting up a closeted lesbian with no judicial experience up for the highest office in the land.

I don't understand if true, the need for denial. If identity politicking is the game, and this seat indeed belonged to a minority woman, why are we hiding from discussing facts, identities, and then need to hide behind a tabla rosa of judicial decisions?

Is it wise to elevate someone to the Bigs without even one game of calling balls and strikes in the minors? With only one argument before the Supreme Court -- and a losing one at that?

Let's forget her womanhood, and her alleged sexuality: Is the job of a politiciking, fundraising Ivy League dean akin to a Supreme Court justice? Does raising money, courting RINO conservatives, and keeping the student Harvard kids happy with a skating rink qualify her as a judge or justice?

Is age a big thing if by her obvious poundage, smoking history, and where she carries the weight (jowls, ear lobes), her rich lifestyle point to heart problems which might not indicate all that long a working lifespan?

Looking forward to your open discussion on this issues, lil Ez! (or your girlfriend/partner's too!)

Posted by: Mary42 | May 10, 2010 12:54 PM | Report abuse

I was watching Swing Vote last night, and realizing it actually seemed weird to have two old white men running for the presidency.

Posted by: adamiani | May 10, 2010 1:00 PM | Report abuse

If he did appoint a third woman, men would still hold the majority of seats.

A note on your probability calculations: Kagan will be the 112th justice meaning there have been 111 opportunities for there to be two consecutive female justices. If there were equal opportunity for each gender throughout our history, this would imply that the probability of having at least one instance of a female appointment following another in that history is
1 -.75^111 = 0.999999999999986.

Posted by: bcbulger | May 10, 2010 1:15 PM | Report abuse

The right question is, can a Protestant be appointed to the Supreme Count? This is a majority-Protestant nation, yet if Kagan is confirmed there will be exactly zero Protestants on the Court.

Posted by: member5 | May 10, 2010 1:21 PM | Report abuse

Wait, wait. Nominating Kagan is more evidence that we need to take the country back from....

Posted by: golewso | May 10, 2010 1:22 PM | Report abuse

Note on previous comment:
I do realize that prior to the late 20th century the probability of a female justice was zero. I didn't mean to imply something different. I only want to convey that as we go along the probability of two consecutive appointments of women occurring eventually is 100%, assuming gender is random.

Three is unlikely but far from impossible.

Posted by: bcbulger | May 10, 2010 1:40 PM | Report abuse

Why do so many rambling lunatics on the interwebs have "42"s at the end of their names? Is there some significance to that number? And does it involve the Mayan calendar?

But really, Ezra, deconstructing KLo is about as productive as deconstructing all the 42s in all the comments sections in all the interwebs. Crazy cultivates crazy. And there's no known mechanism for altering that pattern. If someone can't comprehend the ratio of 2:7, it's hard to see how they can begin to fathom the meaning of 0.000000000058.

That said, I can't justify depriving you of your entertainment. You work hard. You've earned the right to take an easy shot every now and again.

Posted by: slag | May 10, 2010 1:41 PM | Report abuse

below, is a link to an interesting photograph of the supreme court justices in 1951, during the eisenhower administration.
i am so happy that my daughter has come of age in a country where we have capable women presiding in government and the world looks so much different to her, than it did to me, growing up in the world of this photograph!

Posted by: jkaren | May 10, 2010 1:49 PM | Report abuse

I call this kind of thinking "Highlander Syndrome."

People saying stuff like this have so bought-into sexism or racism that they can't imagine a world where women or minorities are really anything but tokens. How could we POSSIBLY have a great court if you picked two chicks in a row? That's two WASTED seats that could have gone to REAL justices!

Highlander Syndrome. "There can be only one."

It's incredibly destructive. Seriously, it's entirely possible that we can have an awesome Supreme court that includes two women nominated in a row, just like it's entirely possible we can have an awesome Supreme court that includes two men nominated in a row. (And it's worth pointing out that "two men in a row" got nominated something like a hundred times.)

Posted by: theorajones1 | May 10, 2010 1:54 PM | Report abuse

Ezra, you're my favorite feminist.

Posted by: roquelaure_79 | May 10, 2010 1:58 PM | Report abuse

This post made me think that women tend to live longer than men so picking a woman have a slightly greater impact on the court all else equal.

I wonder how much thought presidents have given to the age/health of Supreme Court nominees. Probably not much. Relatively shorter term politics are more important.

Posted by: GreenGenes | May 10, 2010 2:17 PM | Report abuse

theorajones is completely right. If anything, the paucity of females on the Court should suggest that the average female selection is of higher quality than the average male selection, provided that there are equal pools of talent in each gender. The implicit argument that no female would be selected if it weren't for her gender is breathtakingly moronic.

Posted by: jeffwacker | May 10, 2010 2:18 PM | Report abuse

Slag, I'm going to assume that people append "42" to their internet names because it's the answer to life, the universe, and everything.

Mary42, I was actually going to substantively answer your post, but then you had that childish ending to your post. If you want an adult discussion, write adult posts. If not, please go play outside.

Ezra, I remember something about coin flipping and something about "the gambler's ruin", with the end result being that coin flipping really isn't 50/50. I can't be bothered to look it up though. Sorry.

And "Highlander Syndrome" is my favorite new phrase of the month.

Posted by: MosBen | May 10, 2010 2:25 PM | Report abuse

Clearly, Ezra, you don't understand how this works. Appointing a woman to the Court is discrimination against men, and makes gender more important than qualifications. Appointing a man is always based only on qualifications, and is gender-neutral.

Posted by: randrewm | May 10, 2010 3:04 PM | Report abuse

@Mary - Kagan is solicitor general. She's argued in front of the SC multiple times. The world didn't end in 2008.

Posted by: JakeD3 | May 10, 2010 3:23 PM | Report abuse

JakeD3 is correct, Kagan has already argued six cases in front of the Supreme Court as Solicitor General. She has also been a clerk at the Supreme Court, working for Justice Thurgood Marshall (coincidentally Marshall was also a Solicitor General before being appointed to SCOTUS).

The Supreme Court is hardly alien territory to Kagan, but the troll Mary42 knows that full well, and is just having fun making up her own facts and being as offensive as possible, in order to provoke a reaction.

Posted by: Patrick_M | May 10, 2010 3:34 PM | Report abuse

MosBen: I'd kinda discount Mary just because of the constant references to her potential sexual orientation. But this:

"Is age a big thing if by her obvious poundage, smoking history, and where she carries the weight (jowls, ear lobes), her rich lifestyle point to heart problems which might not indicate all that long a working lifespan?"

I'd be curious what, if anything, you were going to say to address that. Some part of me wants to think there's a legitimate argument there, but I think that sort of stuff is just pointless. There have been fairly big people, with a smoking history, who live well into their 80s. And what bearing does lifespan have when one is perfectly capable of executing the tasks ahead of them? And so on.

I think Kagan is probably a better choice that Sotomayor. I think she's likely to get to the bench, so we shall see.

That being said, I was hoping Obama would go with Leah Ward Sears. Does he having some objection to strong African-American women? ;)

Of course, I was hoping Bush would nominate Judge Janice Brown for the supremes when he instead, mysteriously, nominated Harriet Myers.

Posted by: Kevin_Willis | May 10, 2010 3:43 PM | Report abuse

@42 In Names:

It's all about the Valenzetti equation. 4 8 15 16 23 42 . . .

Press the button every 108 minutes, and you keep the world from ending.

It's very straight-forward.

Posted by: Kevin_Willis | May 10, 2010 3:45 PM | Report abuse

"If you want an adult discussion, write adult posts. If not, please go play outside. "

Didn't mean to hurt your feeling, lil guy mosben. Sounds like y'all aren't ready for Adult Discussion hour. (Let's pretend the lesbians aren't -- even though it's all about identity politick judging...)

And sorry also to the fella who argued that Kagan's gained lots and lots of SCOTUS experience in her 1 yr. stint as AG. She just hasn't. Any man with her record would not even be considered -- y'all know it's true. But we're looking to fill some chick seats here -- even closeted lady ones... Heh.

Posted by: Mary42 | May 10, 2010 3:47 PM | Report abuse

There have been fairly big people, with a smoking history, who live well into their 80s. And what bearing does lifespan have when one is perfectly capable of executing the tasks ahead of them?"

It's how and where you carry the weight. That triple chin, jowls, and big earlobes show she's not carrying it well. Think a rich-diet dean's job: little activity except for social smoozing and eating.

And it's relevant, because she was chosen as the woman at 50 with so many liberal working years ahead of her. She'll never make it to her 80s, not with a diet like that. Ambition can't fool Mother Nature.

Posted by: Mary42 | May 10, 2010 3:50 PM | Report abuse

"JakeD3 is correct, Kagan has already argued six cases..."

Lol. Wow -- 6 big cases plus 1 year's experience, and how many wins? Oh yeah. Don't forget that 1 year internship 25 years ago with Justice Marshall, the out African American jurist.

(You guys just don't see your condescension, do you? Sure, she's the top nominee for the job -- black or white, lady or dude, straight or gay. Yuppers. Dean of Harvard Law ... straight to the Big Leagues calling balls and strikes on the Court based on that experience. ;-) Really, you want to pretend she's the most qualified candidate available at this time?

And straight as an arrow too, I bet. ;-)

Posted by: Mary42 | May 10, 2010 3:54 PM | Report abuse

Not that there's anything wrong with that. Personal experience contributes to judging, so we need to know what kind of personal experience we're getting... right?

Posted by: Mary42 | May 10, 2010 4:00 PM | Report abuse

"Slag, I'm going to assume that people append "42" to their internet names because it's the answer to life, the universe, and everything."

Ah. I get it. The answer is always the same no matter what question is asked. It's a more subtle form of self-mockery than I would have thought possible. I must re-think my "rambling lunatic" assessment, then. Ironic genius, maybe.

Posted by: slag | May 10, 2010 4:00 PM | Report abuse

I'm confused -- do personal characteristics matter ... or not? Y'all Obama fans, ask yourself that one. Then answer ... honestly (even you Harvard grads. ;-)

Posted by: Mary42 | May 10, 2010 4:01 PM | Report abuse

"Ah. I get it. The answer is always the same no matter what question is asked."

Y'all sure be superstitious for non religious folk. Maybe you're worshipping mysterious mortal gods of your own. ;-) And asking the rest of us to tithe to your newfound superstitions and religions too.

No thanks. Re-pick please.

Posted by: Mary42 | May 10, 2010 4:04 PM | Report abuse

How do you know that a confirmation is certain?

When the wingnut trolls argue about the appearance of a nominee's earlobes.

Posted by: Patrick_M | May 10, 2010 5:17 PM | Report abuse

Those fat earlobes (and quadruple chin) tell me the libs will be lucky if her overburdened heart makes it to 75.

Age matters. Right?

Posted by: Mary42 | May 10, 2010 6:00 PM | Report abuse

Thanks for doubling down on stupidity and proving my point once again, Troll42.

Posted by: Patrick_M | May 10, 2010 6:04 PM | Report abuse

Her father died at 67.

(She was chosen over Wood because she's only 50, and expected to last longer producing lib opinions, right Patterick?)

I wonder if she'll make it to 67 now... It's stressful being closeted, and having to hide your partner/lovers, if indeed you're lucky enough to still have one in this closeted liberal 21st century.

Posted by: Mary42 | May 10, 2010 7:55 PM | Report abuse

Yes, well spoken. I like the 0.000000000058.

When I was in college, back in the Nixon years, we already knew that the phrase "Women talk too much" actually meant "women talk." This is also the derivation of the epithet "shrill," referring to women's higher voices, or more generally to the higher pitch of the voices of people who are seriously ticked off.

Now, if the next 34 justices named are female...

But how likely is that?


Posted by: NoniMausa | May 10, 2010 8:20 PM | Report abuse


Not likely. But I think there is a strong chance that we'll get 3 female nominees in a row if (as expected) Justice Ginsburg is the next to retire. I hope so.

Posted by: Patrick_M | May 10, 2010 10:02 PM | Report abuse

First off, its wrong to assume that there are equal numbers of talented/qualified males and females out there for SCOTUS.

Lets take their precursor positions, such as attorney general, circuit court judge, president of Harvard Law, etc.

You dont get to be the president of Harvard Law when you take off 10 years in the middle of your career to raise children. Maybe thats not right or not fair or whatever, but its reality. Women are MUCH, MUCH more likely than men to take time off to raise kids, thus putting them at an intrinsic disadvantage in the competition for elite level positions.

Sure, systemic sexism plays a role too, but its not the only reason why women arent equally represented as men are in Fortune 500 CEO positions. To get to those positions, you have to have a singular focus in life. Those male CEOs have ZERO quality time with their families in their rise to the top. Most women are not willing to accept that sacrifice.

Posted by: platon201 | May 10, 2010 10:19 PM | Report abuse

"First off, its wrong to assume that there are equal numbers of talented/qualified males and females out there for SCOTUS"

...which (even if it were true) doesn't matter in the slightest.

There are only nine positions, the appointment is for life, and so on those rare occasions when a vacancy opens up, there are always an ample number of available superbly qualified men, women, and minorities to be considered as candidates for the one opening a President needs to fill at a given time.

Don't forget that Hillary Clinton, Amy Klobuchar, and Jennifer Granholm were all mentioned as possible picks this time, and all of them have raised children. The notion that women must choose between "taking ten years off" (and being unsuccessful), or else they must not bear children at all is ... quaint.

Posted by: Patrick_M | May 10, 2010 10:35 PM | Report abuse

Why oh why oh why are you spending any time reading, let alone replying with substance, to anything Kathryn Jean Lopez writes, tweets, breathes, chirps or hiccups?? Waste of time!

Posted by: MCook80 | May 14, 2010 2:55 PM | Report abuse

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