Yes, President Obama's nomination for a new Supreme Court justice should be a woman. I'm backing up Ruth Marcus' Washington Post column from two days ago, "Wanted: Justices from Venus". The Venutian planet, like "mediocre jurists", does deserve representation.
My argument is based on tactical considerations. We are talking about quotas, and women's quota of Supreme Court seats should not be limited to a single one. A single slot does seem to be allocated to African-Americans (currently usurped by Clarence Thomas), and the seat that John Paul Stevens is occupying seems destined to become "the Hispanic one". If Obama picks a woman this time, there will be two women for some brief amount of time, which will crack the marble ceiling on that limitation. I think that is what Marcus is looking for.
Then, when Ruth Bader Ginsburg retires, Obama will truly have a free hand to select his top choice, hopefully free of considerations to fill any prerequisite, except the one of being the Supreme Court justice Obama most wants in there.
Of the three top women bruited about in the Justice horserace, Sonia Sotomayor would seem to be both the favorite (most boxes checked off) and the least likely Justice, Diana Wood the insider filly on the rail that the smart money secretly has its bets on, and Michigan Gov. Jennifer Granholm would be the outsider who could make a run down the stretch.
Granholm would be the one selected to reduce the number of legal beagles on the top bench. I agree with the intention of getting someone other than a top judge, and I pray that it can work. Those who have been through this process find that the non-judge always gets squeezed out, but the fact that she is a Governor--of a besieged "third-world" state--would suggest that the political equation might be different for her, this time.
Breaking Down the 4-1-4 Defense
Whoever is chosen, it should be the one who best fits Justice Anthony Kennedy's eHarmony profile. I think the purpose of the new Justice should be to try to break open the static arrangement of the justices which has been maintained for a good 15-20 years--four right-wingers, four "liberals", and one schmuck in the middle.
The concept would be for the new judge to be sufficiently centrist, or conflicted (like Kennedy), or stunningly attractive to Kennedy, to turn his head, mind, and pen, and make him a reliable vote for Change (meaning Obama-administration-style change with a capital C). Empathy, indeed.
I believe this is a goal worth accomplishing and definitely possible. If it happened consistently, even for a short while, the Four Remaining Right-Wing-Twerps (Scalia, Alito, Thomas, and faux centrist Roberts) would have the choice of being united in the minority or tactically breaking ranks like Sen. Specter. I would consider it more likely they would each go for the former, making their reactionary legal arguments appear ever more shrill and increasing Kennedy's distance from them. It's a tactic, and a strategy!
I do think the argument is better coming from a man, though.