WASHINGTON — "Wise old men and wise old women usually decide cases the same way," Sandra Day O'Connor is fond of saying.
Indeed, as America's first female Supreme Court justice, now retiring from the bench, she is known for playing down the impact of her "femaleness" in her approach to work.
But as President Bush considers Justice O'Connor's replacement, gender is very much an issue. If he replaces O'Connor with a man, the high court goes back to eight men and one woman, hardly a balance that looks like America.
Ironically, though, Bush faces little outside pressure to replace O'Connor with another woman - largely because the most vocal interest groups, from both the left and the right, are focused on how the nominee might rule on various hot-button issues. "I think ideology for them trumps gender," says Linda Fowler, a political scientist at Dartmouth College in Hanover, N.H.
Still, as soon as O'Connor announced her resignation, the White House made clear it would consider women nominees. The Bush administration has also floated the name of Attorney General Alberto Gonzales, raising expectations of a historic nomination of the first Hispanic to the high court.
"I suppose he can get away with not selecting a woman if he selects a Hispanic," says John Zogby, an independent pollster. "That's the only scenario, though. .. White guys need not apply this time."
For this White House, placing women and minorities in high-level appointments is not a matter of political correctness. It is the way Mr. Bush has operated throughout his political life - often counting women and minorities among his most trusted advisers, and openly admiring the battles they have faced to get where they are.
Strong women are at the center of his life, starting with his mother and wife, and extending to many political appointments, including Secretary of State Condoleezza Rice and political adviser Karen Hughes.
"In theory, the administration is opposed to affirmative action, but in practice they have been following it in true form, searching out well-qualified women and minorities," says Sheldon Goldman, an expert on judicial selection at the University of Massachusetts, Amherst. "From their perspective, if you share our philosophy, we bring you in under our tent, and if you don't, goodbye and good luck."
Bush faces demands from numerous constituencies that matter to him - including the social conservatives who were key to his election and Hispanics, now the largest minority in America and a voting bloc the Republican Party has vigorously sought. So far, no Hispanic females have emerged in public speculation for the Supreme Court vacancy. The list of women being mentioned includes several white females and one African American, Janice Rogers Brown, who was recently confirmed to the D.C. Circuit Court of Appeals and who is seen as a strong conservative.
Bush's religious-conservative backers play down the importance of gender. "I don't believe it's a big deal to most Americans, but he may decide to select a woman," says Andrea Lafferty of the Traditional Values Coalition. "The most important issue is, will this person faithfully interpret the Constitution."
Some analysts have suggested that Bush could save a female and/or Hispanic selection for his next Supreme Court vacancy, but in the world of interest groups, waiting for "next time" won't wash, analysts say. Bush won 40 percent of the Hispanic vote in 2004, up from 32 percent in 2000. He also shrank the gender gap that has dogged Republican presidential candidates since the Reagan years, another trend the GOP hopes to continue in the 2006 and 2008 elections.
For liberal activist groups, if Bush were to select a woman who is clearly or even possibly hostile to abortion rights and other civil liberties, opposing her would be an easy call. But opposing a female nominee would make their task - raising alarm among the public - a bit more difficult.
At the heart of the matter, though, remains the question of how a justice's gender informs his or her approach to the law. O'Connor always demurred when asked directly about this, but in fact, in numerous cases her decisions did seem to be informed by a sensitivity to the kind of discrimination that she faced as a young lawyer. Shortly after joining the court, she wrote the majority 5-to-4 opinion in a 1982 decision opening a Mississippi nursing school to male applicants. Later the court used that precedent to open the Virginia Military Institute to female cadets.
One of O'Connor's recent clerks, RonNell Andersen Jones, says that during her time at the court, during the 2003-04 term, she didn't feel there was anybody - least of all O'Connor - who was thinking of her as a woman on the court. "She was a justice on the court," says Ms. Jones.
Still, "I think Justice O'Connor's life as a woman and her life as a woman in [a male-dominated legal culture] couldn't help but have an effect on her views in cases involving women," says Jones. "That said, I'm not certain that impacted her any more strongly than having been a state legislator, or having grown up on a rural ranch in Arizona, or having been a Westerner, or having been a mother of three children, or any other life experiences. They were all a piece. She is who she is."