Late last week the biggest legal news in Washington was that Justice David Souter made it official -- he would retire “[w]hen the Supreme Court rises for the summer recess this year.”  Thus, after the Court issues its final decision of the term in June, there will be an opening for President Barack Obama to fill, and the President will likely name his pick before then.

But in the aftermath of that blockbuster news, our thoughts didn’t turn to who might be nominated, but rather to what Chief Justice John Roberts must be thinking about why that person will be nominated.  That’s not because, like his seven other colleagues and all of legal and political America, the Chief Justice must be wondering who will join him on the bench when the Court is gaveled back into session on the first Monday in October.  But, instead, because the Chief Justice must be lamenting the many qualified lawyers and judges who, by all accounts, have no chance of getting the opportunity to set up chambers at One First Street.

You see, in his short four terms thus far, Chief Justice Roberts has been the leading voice explaining that the government should not consider race, and probably not gender either, in making decisions.  Indeed, the Chief Justice has pulled no punches in his statements that the Constitution means the government -- say for instance in employment -- must ignore the color of one’s skin and the presence or absence of a Y chromosome.

Yet even as the news was breaking that there would be an imminent vacancy on the Supreme Court, it was already all but a certainty that “the next justice would be a “symbolic appointment for that seat on the bench -- perhaps the Court’s first Hispanic member, another woman Justice, or another African-American Justice,” in the words of the Dean of Supreme Court reporters Lyle Denniston.

Indeed, virtually every news story and analysis about the President’s nominee emphasizes what seems to be an inevitable fact about whomever may get the nomination -- the person won’t be white and, almost as certainly, won’t be male.

Take, for example, the headline published online by ABC News earlier this week, which stated that “Diversity, Not Politics, [is] Key to Court Pick.”  The story went on to note that both “lawmakers and interest groups are making it clear that they want to see a woman or a minority pick.”

The report quotes Senate Judiciary Committee Chairman Patrick Leahy as saying: “I would like to see … more women on the Court.  Having only one woman on the Supreme Court does not reflect the makeup of the United States.  I think we should have more women.  We should have more minorities.”  That was the sentiment echoed by former Judiciary Committee Ranking Member (turned Democrat) Arlen Specter, who the same story quoted as stating, “We need more people to express a woman’s point of view or a minority point of view, Hispanic or African-American.”

Commentators are pushing racial and gender identity politics for the Supreme Court nomination, too.  NPR published an opinion piece by Princeton University Provost and Professor Christopher Eisgruber headlined “The Next Justice: No More Mr. White Guys.”  Prominent Supreme Court practitioner and SCOTUSblog founder Tom Goldstein posted: “We can say that [the next justice] has to be a woman.  The gender imbalance on the Court is absurd, and the [Obama] Administration will like the perceived contrast with President Bush’s failure to address it.”

The unanimity of opinion that the next justice can be neither white nor male prompted Benjamin Wittes, a senior fellow at the liberal Brookings Institution, to publish an op-ed in the Washington Post discussing, as the headline put it, “The Best Judges Obama Can’t Pick.”

Wittes asked, “What do Merrick Garland, David Tatel and Jose Cabranes have in common?”  His answer: “All are sitting federal court of appeals judges who were nominated by Democratic presidents.  All three are deeply admired by their colleagues and are among a small group of the very finest federal judges in the country.  And all three have names you probably won't hear often in public discussions about whom President Obama should tap to replace retiring Justice David H. Souter.”  Why?  Well, Wittes states it pretty bluntly: “Garland: white guy.  Tatel: white guy and, at 67, too old.  Cabranes: Hispanic, sure, but [a man and] even older.”

This racial and gender identity driven process must be exceptionally frustrating to Chief Justice Roberts.  After all, not only has the Chief Justice unequivocally and passionately advanced the constitutional proposition that “[i]t is a sordid business, this divvying us up by race” and gender, and that “[t]he way to stop discrimination on the basis of race [and gender] is to stop discriminating on the basis of race” and gender, but he has seen identity trump all before.  The Harriet Miers debacle was the result of a President -- albeit one from the other political party -- choosing a High Court nominee based on appearance as opposed to substance.

Of course, none of this is to say that eminently qualified female and minority candidates aren’t out there, many already found.  But it must trouble the Chief Justice that the real reason any one of them may be nominated isn’t their sterling credentials, deep knowledge or vast experience, but rather their good fortune to be born with the preferable set of genetic traits.

Indeed, after the last election in which neither race nor gender was much of a concern -- or even a barrier -- that the winner would now choose the next justice of the Supreme Court based on minority status or the absence of a Y chromosome should deeply trouble us all.