Stevens to Retire; Appoint a Woman!

So, there it is… Justice Stevens is retiring at the end of this term, the day after the Supreme Court begins its summer recess.

First, some geekery. His retirement date means that he’ll just miss becoming the second-longest serving justice in Supreme Court history, as I speculated last fall, since the Court will most likely recess on June 28. Even if the Court recesses on July 1 — which is not likely and might happen only if there are too many decisions to announce at the end of the term — Stevens would retire on July 2, and thus tie Stephen Field as the second-longest serving justice. Right now Stevens ranks fourth; 41 days from now he’ll surpass the legendary John Marshall to become third.

I’m sure he doesn’t care about any of that stuff, though. Only geeks like me do.

Now the speculation begins on a successor. And I really, really want Obama to nominate another woman.

It’s ridiculous that in the year 2010, only two of the nine justices are women. Bush tried to nominate a woman to replace O’Connor — Harriet Miers — but when her nomination failed, he nominated Sam Alito, leaving Ruth Bader Ginsburg as the only woman on the Court. Obama did the right thing in choosing a woman to replace Souter, and Stevens’s replacement should be a woman as well.

Demographics should be secondary to a Supreme Court nomination, but when a president is looking for someone of a particular ideology or judicial temperament, there are usually several people to choose from, so he has the leeway to choose another woman. Fortunately, it looks like the name with the most buzz for the last couple of months has been Solicitor General Elena Kagan. Several weeks ago, SCOTUSblog profiled her, as well as a few other contenders, and considered her the front runner.

But this is interesting — if she were nominated and confirmed, the Supreme Court would have six Catholics and three Jews. Would fundamentalist Protestants be annoyed at having no representation? After all, to quote that link, “it’s not like having devout Catholics on the bench is a substitute for having a couple of Protestants, any more than having a Clarence Thomas on the bench is the same as having an African-American.”

The Supreme Court is problematic today — a small group of nine people can enact major change in this country, for better or for worse. Perhaps a larger court would be better, and not just because it would dilute the identity politics somewhat. (The Constitution doesn’t say there have to be nine justices — all it takes is an act of Congress, although the last time a president tried to make that happen, it didn’t work out.)

Of course, even in a larger body — the current United States Senate — only 17 out of 100 members are women. But given the infrequency with which the Supreme Court membership turns over, change comes even more slowly to that body.

Even three out of nine justices would be too few women on the Court. But it would help redress a great annoyance.