In Defense of Identity
James Kirchick says he doesn’t like the idea of going out of one’s way to pick a gay or lesbian Supreme Court justice:
I respect Richard’s argument and agree that an openly-gay appointee would do wonders for the visibility of gay people in America. But I want to use the opportunity to make a broader, related point. Namely, that I oppose using a person’s sexual orientation as a job qualification for the same reasons that I oppose the privileging of a candidate based upon their race or sex: It boils individuals down to their immutable traits. The only aspect that Obama should consider as he weighs his options over the next few days is the candidates’ jurisprudence.
This sort of thing sounds incredibly high-minded and commonsensical, but I think it doesn’t stand up to much scrutiny. For example, everyone knows that a president is going to consider age and health as important criteria in picking his nominees. That’s because a slot on the Supreme Court isn’t a reward for past excellence in jurisprudence, it’s an effort to produce high-quality future jurisprudence. We care about past performance insofar as it’s indicative of future results. We’re not just handing out gold stars, in other words, we’re hoping to produce good Supreme Court decisions. But while of course you’d have to look at a judge’s past work as an important consideration, it’d be crazy to consider it the exclusive source of evidence about future judging. It’s hardly implausible to think that a gay justice may have a different perspective on cases related to gay rights, and I don’t see why it would be illegitimate for a president to take that into consideration.
More broadly, the nature of the Supreme Court is that a great many of its most important cases concern the rights of women and various kinds of minority groups. It’s absurd to think that a forum of nine white, male, heterosexual Christians could possibly compose the best possible forum for deciding these kinds of issues. The reality is that a nine-person group can’t possibly fully represent the diversity—in terms of religion, sexual orientation, ethnicity, gender, etc.—that exists in the country at large. But one can do better or worse on this regard and it makes perfect sense to aspire to do better. That’s not an alternative to caring about the quality of the jurisprudence, it’s part of trying to get good jurisprudence.
82 Responses to “In Defense of Identity”
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May 8th, 2009 at 4:49 pm
Dude, put it behind you: Alito’s gay.
May 8th, 2009 at 4:51 pm
I just don’t think you have to go out of your way to get gay/women/black/ect people on the court. If you always take the best canidate based purely on judicial merit and paying no attention whatsoever to identity, then shouldn’t you end up with a decent level of diverisity anyway? It seems that if you believe that the gay/women/black/ect judges are just as good as the white heterosexual male judges then the answer would have to be yes.
May 8th, 2009 at 4:53 pm
The supreme court is a collection of jurists not “safe space” counselors. White males can empathize with other groups sufficiently, just as men/women of other races can.
May 8th, 2009 at 4:55 pm
Shorter Matthew: we ought to be racists (and sexists, and discriminate on the basis of sexual orientation) in picking Supreme Court justices!
May 8th, 2009 at 4:57 pm
Re “That’s not an alternative to caring about the quality of the jurisprudence, it’s part of trying to get good jurisprudence.”
—————–
Bullshit.
May 8th, 2009 at 5:01 pm
Man, conservatives just can’t stop playing the race card. All they ever do is accuse people of racism these days.
I wish we could have serious discussions about these issues, but all people like Al want to do is call everybody who disagrees with them a racist.
Thank God conservatives stopped mattering four months ago.
May 8th, 2009 at 5:02 pm
JD Says:
May 8th, 2009 at 4:51 pm
I just don’t think you have to go out of your way to get gay/women/black/ect people on the court. If you always take the best canidate based purely on judicial merit and paying no attention whatsoever to identity, then shouldn’t you end up with a decent level of diverisity anyway? It seems that if you believe that the gay/women/black/ect judges are just as good as the white heterosexual male judges then the answer would have to be yes.
In a country as large as this, how could you possibly determine which one candidate is the best qualified? Why would you even think that there is a single best qualified candidate? More likely there are a whole mess of people who are more or less equally qualified.
May 8th, 2009 at 5:06 pm
Single best qualified = fallacy of essentialism — with corollary that no one is every considered good enough. In fact, when there is a job to be done, there are many who can learn on the job.
May 8th, 2009 at 5:08 pm
If diversity is expanded to include sexual identity, then other traits are fair game too, yes? Are there enough left-handed justices. And enough redheads? Enough midgets?
May 8th, 2009 at 5:11 pm
If diversity is expanded to include sexual identity, then other traits are fair game too, yes? Are there enough left-handed justices. And enough redheads? Enough midgets?
Enough to deal with the enormity of redhead and midget-related cases they deal with, I’d imagine.
May 8th, 2009 at 5:13 pm
The idea that there is some platonic “ideal” of “jurisprudence.” is absurd. Roberts is considered a great jurist because he’s smart, goodlooking, and has been able to eviscerate decades of liberal jurisprudence by being nonconfrontational, i.e., hiding a vicious conservative agenda behind a veneer of “incrementalism,” similar to Scalia’s branding of reactionary politics as divining “original intent.”
If these hacks hadn’t had four other Supreme Court justices to assist them in their attempt to destroy the liberties of individual citizens, they would be footnotes to history, if not laughingstocks. Therre is nothing inherently “brilliant” about the jusrisprudence of either of these men.
All we need is someone who will reliably support the progressivism inherent in the Constitution, avoid reliance on “penumbras and emanations,” and be on the court for thirty years. Their opponents will attack them for lack of judicial chops no matter how unassailable their legal reasoning anyway.
The appointment of a SC justice is a political act, not an aesthetic one. It’s time to treat it that way.
May 8th, 2009 at 5:14 pm
Since if Obama gets to replace Scalia or Thomas, or both, the Court will rule that defining marriage as hetero only will be unconstitutional, for reasons to be determined (they’ll make something up). It will probably go down easier if it was a all hetero court that did it, the backlash would be less, especially if it was 5-4.
May 8th, 2009 at 5:18 pm
I wish we could have serious discussions about these issues, but all people like Al want to do is call everybody who disagrees with them a racist.
Apparently to people like joe from Lowell, anti-racism is a bigger problem in this country than racism!
Let’s call people like joe from Lowell anti-anti-racists.
May 8th, 2009 at 5:21 pm
‘Anti-racism’ – defined in this case as making sure the next Supreme Court nominee is a white guy – is certainly a bigger problem than the non-existent racism found in the statement “Having a Supreme Court that is overwhelmingly white and male is a problem.”
May 8th, 2009 at 5:22 pm
What brewmn says – SCOTUS appointments are political decisions and should be treated as such. The competence argument is bs anyway. Anyone who is being considered for the Supreme Court is bound to have some basic competence and legal experience. Only Bush II would try to nominate his favorite lackey.
May 8th, 2009 at 5:23 pm
Nothing sadder than a “shorter” fail.
May 8th, 2009 at 5:26 pm
The competence argument is bs anyway. Anyone who is being considered for the Supreme Court is bound to have some basic competence and legal experience. Only Bush II would try to nominate his favorite lackey.
If you disliked Miers for lack of competency (I did) then the competence arguement can NOT be BS. Please at least TRY to make sense.
May 8th, 2009 at 5:29 pm
I really don’t care whether we have a gay judge or not. But how about an Atheist judge? They are one of the largest minorities in America, yet they never get any consideration at all. Catholics and Jews get appointed way beyond their numbers, but it is verboten to even consider appointing an Atheist.
May 8th, 2009 at 5:29 pm
I think it’s high time that the Episcopalians re-asserted their position as the ruling class. With Souter gone, there won’t be a single Episcopalian on the court, and only one Protestant. Two Jews, FIVE Catholics, fer Chrisakes.
Actually, I wish Obama would nominate Lani Guinier (although I don’t think she’s an Episcopalian), but at age 59 she’s probably considered too old, which is a shame.
May 8th, 2009 at 5:33 pm
I thought that the law was blind…does a good homosexual judge really see the Constitution differently than a good heterosexual judge? And if that’s the case, what does that say about our laws? That they’re open to interpretation based upon the individual who’s charged with overseeing them.
Pardon me if I think that it’s a bit absurd that our solution to the law being arbitrary (at least it is in Matt’s view apparently) is that we find someone (based on sexual orientation) that will read it in a manner that a certain group of individuals deems to be appropriate.
Doesn’t anyone see how this completely undermines our legal and constitutional foundation? Or are we just in a “I feel bad for X group” mode that we’ll resort to a sexual orientation litmus test to satisfy our selfishness?
Whatever happened to getting the best legal minds in the Supreme Court? If that person happens to be gay, then so be it…but to begin with: let’s find the best homosexual individual who happens to be good (or better) at being a Justice does a disservice to our nation…and frankly, to homosexuals.
May 8th, 2009 at 5:33 pm
All of this stuff about choosing the most legally qualified candidate is just so much baloney, based on two fallacies.
The first fallacy is that the Court matters. Back when the Court ‘gave’ us free speech and racial equality, the bigots and racists said to themselves “We gotta get some of that ability to tell people what to do”. They think that if one Court decision can let us speak freely, another can prevent it. They think that if one Court decision can declare us equal in the eyes of the law, another Court decision could make us unequal again.
So, to the racists and bigots, it became very important to ‘get control’ of the Court, because they thought that if they did, they could prevent women and minorities from having rights, prevent unions from forming, and generally stay time in its course.
And what better way for white regressives to get control of the Court than by insisting on the highest legal qualifications? No sirree bob, we’ll have no more Justice Black, or Justice William O. Douglas, or Chief Justice Warren- you see, these men weren’t as qualified as Rehnquist or Alito or Harriet Myers to be a judge. We need top legal minds!
Of course, a moments thought would suggest that any “strict constructionist” who pretends to be telling you what the writers of the Constitution were thinking should be stuffed full of Thorazine and locked in a padded cell until they returned to reality. That’s what you would do with a contractor who told you “Oh sure, the plans call for pipes for the water. But what the architect was thinking was more like wires for the water”.
We would be way better off with Justices like Warren or Black, who retained some awe and reverence for the Constitution, then we are with Justices like Alito, who thinks he knows enough to hold the actual document in contempt. And this is especially true as long as the legal profession itself is a satrapy for unqualified white privilege.
May 8th, 2009 at 5:37 pm
No. Because the reading of the law in a manner that a certain group of individuals deems to be appropriate has been going on since day one. It only becomes an issue when we start talking about anyone other than straight white Judeo-Christians.
The alternative to considering composition is to default to the sociocultural hegemon, so let’s not pretend that it’s only biased if we diversify.
May 8th, 2009 at 5:39 pm
Jack sez:
From which I deduce that Jack is white and male.
May 8th, 2009 at 5:40 pm
“progressivism inherent in the Constitution”
Please enlighten us…
And while your at it…why not explain to us why some Justice who discovers that the Constitution “inherently” doesn’t support abortion is wrong, compared to the judge that rules that the Constitution “inherently” supports abortion.
Even your favorite whipping boy Scalia doesn’t find a case against states that support abortion. Are you telling me that you’d rather see him adopt your “logical” test on issues like this one that don’t appear in the document?
May 8th, 2009 at 5:41 pm
Obviously. But it’s just so condescending to tell women, black people, etc “you don’t need a seat at the table. we’ll take care of everything for you.” The American colonists in 1776 wouldn’t put up with that; why should women?
May 8th, 2009 at 5:41 pm
Only if there are no active forces working AGAINST people who aren’t white guys (see King, Martin Luther).
May 8th, 2009 at 5:45 pm
Thank you. Why, up until recently most Supreme Court picks in US history weren’t even judges. Yet now we HAVE to pick the “best” judge?
May 8th, 2009 at 5:46 pm
To quote a great lawyer (Denzel Washington in “Philadelphia”): “but we don’t live in this courtroom”.
May 8th, 2009 at 5:46 pm
Cf. the eighteenth century.
Scalia’s favorite trick is to use some of the barbaric laws that remained on the books after 1787 as a test of what is or is not constitutional, assuming (or just playing dumb) that the Framers would certainly have purged the laws in every state of all things that They did not consider constitutional. Of course, people like Franklin wrote about exactly why that didn’t happen, but that’s over a “strict constructionist’s” pointed head.
Scalia’s problem is that he’s a joke.
May 8th, 2009 at 5:50 pm
Oh please, save me this BS on bias. If you want to really go down that path, then bias runs two ways…By your own admission then, you’re selecting someone who’s going to be biased on homosexual issues. So much for trying to restore the primacy of the law…You’ve just recreated Congress…Yeah, that’s what we need, more politicians.
As for the most qualified candidates, then I guess serial catowner that you have absolutely no problem with the President selecting someone that will pick up the phone and ask him how he should vote on a particular case. When standards go out the window…that’s what you get. What an incredibly stupid response.
To the extent that you can select the most qualified person, you try to. Was Roberts or Alito for that matter? As a Conservative, I’m not really sure. Personally, Scalia would have been the best choice for Chief, but Bush wanted to make sure that he could put folks on there that would support his “unitary Executive.” We all suffer as a result…and what you guys are advising is that we recreate that with a liberal.
When does it end?
So this is what decline feels like.
May 8th, 2009 at 5:53 pm
I thought that the law was blind…does a good homosexual judge really see the Constitution differently than a good heterosexual judge?
Not necessarily. If gays have constitutional rights, who is more likely to have considered the question in detail, and who is more likely to have articulated a sound legal opinion on the matter?
May 8th, 2009 at 5:55 pm
JM,
What’s your point? Moreover, what’s your test beyond the document itself? You say that the laws (and I might agree with you) are barbaric…WHAT DOES THE LAW SAY?
And if possible, provide me with an example.
May 8th, 2009 at 5:59 pm
Considering Alito’s dim reading of Title VII, which forced Congress to ’splain it to him with the Ledbetter Amendment, and Roberts’ inability to tell disparate treatment from disparate impact in his bizarre ‘the way for the government to end discrimination is to stop disciminating’ statement, would I think argue that both men were reliable ideologues of either no ability or whose ideology makes whatever abilities they do have irrelevant.
And then there’s Harriet Miers’ nomination.
It’s stupid to assume that since liberals have different criteria they must be creating the same regime. In fact, it’s self-parodying.
May 8th, 2009 at 6:00 pm
Halfdan,
Are you suggesting that homosexuals are without constitutional rights? Additionally, are you suggesting that a heterosexual lawyer or judge is incapable of generating (or articulating) a sound legal opinion on the matter?
I mean really guys, examine your thinking on this. If your strawman happened to be White and heterosexual, how do you think this same analysis would be interpreted by African Americans or Women?
In America, we should strive to find the best legal mind. Within reason, we don’t first examine the person and then decide whether or not their mind is good enough afterwards.
May 8th, 2009 at 6:00 pm
My point, Ed, is that prior to Marbury v. Madison, not to mention the 14th Amendment, Scalia’s “test” is an exercise in anachronism.
Thought it was obvious.
May 8th, 2009 at 6:02 pm
Let’s assume for now that Samuel Alito knows more about the law than any other American. Do we still want to seat on the Supreme Court someone who favors strip-searching little girls?
May 8th, 2009 at 6:03 pm
JM,
I agree (especially with Harriet Miers). However, it’s also stupid (and completely inaccurate) to claim that liberals aren’t following through with the same bankrupt practices as the Republicans.
What I’m trying to suggest is that those of us that actually give a shit, drop this absurd practice for the sake of the nation. The standard ought to be best legal mind, not person most likely to support your selfish agenda.`
May 8th, 2009 at 6:04 pm
JM,
Fair point.
May 8th, 2009 at 6:06 pm
Although, and perhaps a lawyer can answer this…has there ever been a challenge to the ruling in Marbury v. Madison? It would be interesting to see whether or not Scalia actually agreed with that decision.
Perhaps someone can ask him.
May 8th, 2009 at 6:07 pm
Ed, you could start with Stanford v. Kentucky, 20 years ago, and work your way forward. Scalia’s archaism is also a common feature of his public speech.
As history, it’s crap. As law, it’s dangerous.
May 8th, 2009 at 6:08 pm
The issue is not affirmative action for gay & lesbians in the Supreme Court. The issue is that up to now an openly gay or lesbian person was unacceptable as a nominee (as were vocal atheists, and until not that long ago, women, blacks, and other many other minorities)
So, to me the issue is that openly gay or lesbian people should be considered just as qualified for the Court as anyone else, and not be excluded when the President and the Senate consider candidates. The only way to ‘prove’ they are not being excluded would be to choose one. The same was true for women and blacks: the only way to prove they were finally acceptable choices and not being excluded was when the first black person and first woman was selected.
How a gay or lesbian person would rule from the court is of course dependent on who they are. They would likely be more sensitive to gay & lesbian issues, but otherwise it would depend on their judicial philosophy. Lots of conservative gays out there. Roy Cohen was gay, after all!
May 8th, 2009 at 6:12 pm
Ed,
No one is arguing qualifications go out the widow, so just stop. Rather, we realize there are many candidates of relatively equal qualification. Selecting people who have had different life experiences is fine, as it will undoubtedly shade their reading of the constitution and laws. For you to pretend otherwise is to ignore that even the mighty Supremes are humans.
May 8th, 2009 at 6:12 pm
I find it hilarious that Ed Smithe follows up this idealistic post:
I thought that the law was blind…does a good homosexual judge really see the Constitution differently than a good heterosexual judge? And if that’s the case, what does that say about our laws? That they’re open to interpretation based upon the individual who’s charged with overseeing them.
with this:
And while your at it…why not explain to us why some Justice who discovers that the Constitution “inherently” doesn’t support abortion is wrong, compared to the judge that rules that the Constitution “inherently” supports abortion.
Yeah, dude, different judges interpret the laws and the constitution differently. That’s why we have these discussions.
I wonder how someone like Ed Smithe will know if Obama has picked “the best legal mind” for the court if the person Obama picks happens to be gay, black, Hispanic, a women, a muslim, an atheist, or, for that matter, a little person? My guess is that Ed Smithe and those like him will be convinced that any pick other than a white, full stature, Christian male of European descent will be an affirmative action pick.
May 8th, 2009 at 6:21 pm
Qualifications relates more to rationalizing your opinion than arriving at your opinion.
You arrive at your opinion based on temperament, world-view and sense of community. You then use your smarts to put the proper face on it.
May 8th, 2009 at 6:39 pm
In fact, homosexuality is not a neutral legal category — it is a legally stigmatized in many states and jurisdictions in the USA. A gay nominee may well have knowingly violated various state laws during his lifetime. There are current members of the court who have held that the current situation is constitutional and just and that the state has a legitimate public interest in suppressing and repressing homosexuality. The real question is whether some members of the present court are so committed to their prejudices against gay people that they are no longer trustworthy to produce good law on this subject. We have the equivalent of committed and overt segregationists on the court right now.
May 8th, 2009 at 6:44 pm
Matt, for most of the 20th century the Supreme Court has not consisted of nine Christians. There have been Louis Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg–have I missed anyone pre-Ginsburg and Breyer?
And have you forgotten the time that Thurgood Marshall retired? He hoped that GHWB would appoint the best judge, regardless of color. Instead, President Bush nominated–Clarence Thomas.
May 8th, 2009 at 7:15 pm
I think Matt’s argument can reasonably weigh in favor of picking a female Justice. I don’t think that argument is very good with respect to sexual orientation, however–there just aren’t going to be enough cases involving sexual orientation to make this a significant consideration.
That said, there are a couple people who should be on Obama’s short list anyway that happen to be lesbians. And so while I personally wouldn’t advise picking one of those people just because they are lesbians, I certainly don’t think it is wrong to pick one on her merits and then look forward to certain groups (and perhaps certain members of Congress) make themselves look like fools in opposing her.
May 8th, 2009 at 7:23 pm
“If you always take the best canidate based purely on judicial merit and paying no attention whatsoever to identity, then shouldn’t you end up with a decent level of diverisity anyway?”
Is there some kind of advanced version of the LSAT out there, which can precisely rank candidates’ readiness for the Supreme Court? Because if so, then yes, it is very easy to consider “judicial merit” independent of all other considerations.
May 8th, 2009 at 7:59 pm
“Is there some kind of advanced version of the LSAT out there, which can precisely rank candidates’ readiness for the Supreme Court? Because if so, then yes, it is very easy to consider “judicial merit” independent of all other considerations.”
Luckily, we have someone like Obama to make that kind of decision; surely he has an opinion on “judicial merit”. No one thinks there’s some rigorous way to RANK that merit, they’re just asking Obama to be honest in his selection, over and above the “woman/gay/minority” threshold.
Also, if you’re going for some sort of minority, a non-Jewish religious minority is clearly the one crying out for a position. Especially considering the percentage of the country that’s atheist! Though a muslim/hindu would be pretty awesome too.
May 8th, 2009 at 8:20 pm
On the whole ranking thing:
I think you could wipe out the identity factor (not age, though, for the reason Matt gave) and come up with a decent list of maybe 50-150 people for whom a good case could be made (depending on how broad you wanted to be as far as non-judges). You could then lift the veil, and I have no doubt you would find many women in the 50-150. So I have no problem with seeking a woman.
May 8th, 2009 at 8:29 pm
And then there’s Harriet Miers’ nomination.
Which, as I recall, most conservatives opposed vehemently.
In terms of whether or not we use affirmative action to get people onto the Court, eh, it’s not a terribly big issue for me. The fact of the matter is, there are very few slots in the Court, so there is almost certainly a qualified person of almost any ethnic/sexual description whom you could pick. And at this level of qualification, trying to pick the absolute “best” is an exercise in futility.
If a kid with an SAT score of 1450 gets into a college over a kid with an SAT score of 1510 because of Affirmative Action, that’s not a big deal. The problem is when the kid with an SAT score of 1150 gets in over a kid with a score of 1510. I don’t think that this is what is happening here.
Not that I have no concerns over who Obama picks as a judge; but even though I would be concerned that a Latino/a or homosexual justice would likely take positions that I vehemently would disagree with on important issues, the fact of the matter is that it isn’t as if any white heterosexual justice that Obama would appoint would take positions that I like much better.
So for me, it doesn’t matter much if he picks a justice based on “diversity” considerations. It does not seem to me to be an issue worth getting heated up over, so I won’t be outraged either way. (Not that his choice might not outrage me for other reasons).
May 8th, 2009 at 8:36 pm
Statistically speaking, if there have been no gay judges (and I’ll bet there have been plenty) then we’ve been going out of our way to NOT pick them.
A huge difference between the US constitution and that of Iran is that the Supreme Jurists in Iran are ideologically unified, whereas in the US they are intended to be ideologically diverse.
Demanding a unity of identity reinforces a conformity of ideas. Eventually (like in Iran) it would be pointless to have nine judges; there may as well be only one.
May 8th, 2009 at 8:43 pm
RE: Even your favorite whipping boy Scalia doesn’t find a case against states that support abortion.
Well, you could make a plausible Fourteenth Amendment case that fetuses may not be deprived of the right to life. Indeed, the Latin American countries which prohibit or severely restrict abortion in their constitutions, typically do so in the context of talking about the same right to human life that prevents police from arbitrarily murdering suspects in custody.
May 8th, 2009 at 9:58 pm
Your post is silly, Yglesias. Don’t use racial or sexual identity as a proxy for a litmus test, just say you want a litmus test.
In other words, you say we might expect a gay justice to have a different perspective on gay rights, but to assume that all gay justices have some perspective on civil rights would be crazy. So why not just “cut out the middleman” and consider the justice’s perspective on gay rights directly.
Personally, I don’t think we should use any litmus tests. I also think that making someone a justice because they are gay is just as bad as *not* making someone a justice because they are gay.
I think you might have been implying that a gay justice would be less likely to go Souter and change their position on gay rights. Personally, I think a straight person can be just as passionate about gay rights as a gay person and therefore just as unlikely to change their opinion. But even more importantly, even for people with a personal stake in gay rights issues, the world is much much larger than this one issue.
I think it would be crazy to trade one or two landmark decisions on gay rights for potentially lower quality decisions on the numerous other issues. It would be crazy precisely because the other issues are so much more numerous.
May 8th, 2009 at 11:09 pm
Matt, for most of the 20th century the Supreme Court has not consisted of nine Christians. There have been Louis Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg–have I missed anyone pre-Ginsburg and Breyer?
Yep, you missed Abe Fortas. While there have been seven Jewish justices, by my reckoning for 60 of the years of the 20th century there were no non-Christians on the Supreme Court: 1901-1915, 1940-1961, and 1970-1992. That is, if you consider Catholics to be Christians, which some fundy protestants would not. Whore of Babylon and all that. Five of the current members of the court are professing Whore-of-Babylon followers who almost certainly take orders from the Pope.
May 8th, 2009 at 11:57 pm
Not if he can run a 4.6 40 in pads.
May 9th, 2009 at 12:45 am
Herschel: You overlooked Frankfurter (although he was mentioned in the original post). He was on the court throughout the 1940-1961 period; in fact, that was roughly coterminous with his 1939-1962 tenure.
I think one could make a good case case that the Supreme Court has consistently been most the diverse branch of the government. There have been seventeen chief justices, and three have been Catholic – compare that with one of forty-three presidents and one (until recently none) of forty-seven vice-presidents. There were two Jewish justices at the same time as early as 1932 – where there any Jews among the ninety-six Senators at that date? I suspect not. There were lengthy periods in which there were designated “Catholic seats” and “Jewish seats.” And now, we are likely to soon have a situation where the Court will have only one white male Protestant – who is almost ninety years old! When he inevitably dies or retires soon, we may well have none.
May 9th, 2009 at 6:39 am
I just hope Obama picks a real liberal and not some pro-corporate moderate who happens to be gay, female or in favor of same sex marriage.
May 9th, 2009 at 8:13 am
Exactly the point about Thurgood Marshall, Clarence Thomas and the supposed black POV.
And thank you, Herschel and James Kabala, for your careful corrections.
May 9th, 2009 at 8:46 am
Rob,
You really have a way with breaking down American society. I’m sure you realize that historically speaking that practice was designed for the explicit purpose of separating everyone who wasn’t a white and a WASP. But far be it for the pot to call the kettle black.
Personally, I have enough faith in my ability to pick a number of qualified people for the job based on their legal knowledge and accomplishments. Robin the other hand doesn’t, so, due to his ignorance, he settles for the next best thing in his mind. Personal preference. And that ladies and gentleman makes Rob no better than some good ol boy who would never in his lifetime vote for a man like Obama, because he doesn’t know any better.
May 9th, 2009 at 10:18 am
If that Good Old Boy wanted to pick a candidate purely on the basis of his devotion to the interests of white people, he would be absolutely right to vote against Obama on the basis of his skin color.
Now, here’s the tough part that the wilfully-blind strive so very hard to avoid understanding: an effort to maintain white dominance in a white society is wrong, and evil, and a terrible reason to support a candidate.
On the other hand, and effort to advance minority (gender minority, racial minority, ethnic minority, religious minority) power in a white, male, European, Christian society, in order to bring things closer to equality and justice, is a good thing.
May 9th, 2009 at 10:19 am
Of course, to certain people, the dominance of white, male, European-derived, Christians in a our society is a feature, not a bug – or at a minimum, an issue of no import whatsoever.
These are the sort of people who consider a segregated society and an integrated society to be of equal merit, and base their opinion about desegregation efforts on points that have nothing to do with segregation and racial equality at all.
May 9th, 2009 at 10:20 am
Patrick C, I assume you meant “to assume that all gay justices have the same perspective on civil rights would be crazy.”
May 9th, 2009 at 10:49 am
jfl, you’re being charitable.
May 9th, 2009 at 10:53 am
Joe,
I don’t think that you could have written a more illuminating post. So let me get this straight, when you base your choices on race or gender…provided that the individual happens to be a minority (which I’m assuming you’re the keeper of which groups are minorities and which are not) that’s a good thing. Yet when someone who happens to be white uses that same logic, regardless of circumstances, that is racist.
Some of you really don’t spend a great deal of time thinking about this stuff do you?
May 9th, 2009 at 11:01 am
Well, you could make a plausible Fourteenth Amendment case that fetuses may not be deprived of the right to life.
The problem is that you can’t make an originalist case to that effect, and in fact using originalist methods pretty much mandates the opposite holding. Hence Scalia’s position.
May 9th, 2009 at 11:01 am
Ed Smithe,
I’m white.
And male.
And yet, I’m positing that taking gender and race into account can, indeed, not be racist.
Here’s where you go wrong: regardless of circumstances.
Here’s what I actually wrote:
Did you catch it that time? The part where I specified a set of CIRCUMSTANCES? Indeed, where I listed that the CIRCUMSTANCES are precisely what makes the two set of beliefs different?
I made an actual argument. You can post a response to it any time you want.
May 9th, 2009 at 11:04 am
Some of you really don’t spend a great deal of time thinking about this stuff do you?
Some of you don’t spend a great deal of time honing your reading comprehension, do you?
You see this a lot among conservatives: they’ve been told by other conservatives what liberals’ argument are, and don’t bother to let the actual words and ideas that actual liberals argue interfere with the perception.
May 9th, 2009 at 11:56 am
“This sort of thing sounds incredibly high-minded and commonsensical, but I think it doesn’t stand up to much scrutiny.”
Really? Is it so outlandish to say that a judge’s knowledge of the law and skill at interpreting it should be the only factor in picking a candidate? The court isn’t meant to be a diversity gallery or even to be “representative” of the ethnicities of the population at large. The court is solely concerned with making fair and just judgments.
Last I checked, fairness and justice had nothing to do with gender, race, or sexual orientation.
May 9th, 2009 at 12:20 pm
Joe,
I have friends who are minorities too…
I wouldn’t go patting yourself on the back for de facto telling folks that under normal circumstances, they’re just not going to make it unless magnanimous white folk like you and I help to level the playing field for them.
As for your circumstances, those aren’t circumstances. Don’t you think that the fact that they are MINORITIES might have something to do with lack of equality? What you’ve proposed is a paradox by which classes of people are favored over other classes of people until they become the majority.
I on the other hand say get rid of telling folks that they’re not white and judge them on the content of their character. Or is that something that only white conservatives ought to believe?
May 9th, 2009 at 12:37 pm
People like Ed Smithe train themselves to play little word games, where the object is to win the argument. Ok, Ed, you won- history will now proceed without you.
It’s a simple fact that white male lawyers have benefited more from the ‘affirmative action’ programs of being born rich, attending private schools, legacy admissions to Ivy-league colleges, and the subsequent practice of law, than any other profession or class in America. Don’t believe this? Hire a white male lawyer.
The problem with this deeply-rooted discrimination is that it excludes over half of the talent available. If women and minorities were treated equally, we would have more than twice as many geniuses among us.
This problem has baffled our white male lawyers. What to do, what to do. “After all,” they reason, “we are the best qualified lawyers and judges around. How can we educate the lower classes so they can be as smart as us?”
Fortunately, the Founders who wrote the Constitution, lived in a simpler time. Most of them believed that at some future time a powerful faction would arise among the wealthy which would try to enslave Americans. In an effort to delay this as long as possible, they divided the powers of government. The President makes an appointment to the Supreme Court, but the Senate must confirm it.
You will note that they did not set up an educational test or requirement of wealth for nominees. They were entirely aware that the danger came from the educated and richest of people, not from the poorest and least learned.
Arguably, Obama is better qualified than any previous President to choose a Supreme Court Justice. Has any other President ever taught a course in Constitutional law before becoming President?
Whoever Obama picks will be opposed by the right-wingers, who will probably spend $15-20 million dollars (at least) in a massive propaganda and dirty-tricks campaign. Having tasted blood once when they put Bush in the White House in 2000, they will seize this opportunity to try to drag Obama down.
The rest of us, though, may well wonder how long we can go on wasting half of the talent the nation possesses.
May 9th, 2009 at 1:35 pm
Last I checked, fairness and justice had nothing to do with gender, race, or sexual orientation.
You need to check again.
The thing some people seem to overlook is that judges have to not only interpret the law, they also have to apply the law to the facts of a case. And understanding the facts of a case such that you understand how to apply the law to the facts is not a trivial task, because the world is a very complex place. Therefore, all judges draw on their personal experiences to help them understand the facts of cases–indeed, they have no choice but to do so. And sometimes the relevant facts involve gender, race, or sexual orientation.
May 9th, 2009 at 2:08 pm
Herschel: You overlooked Frankfurter
Oops! I really flubbed that one, huh? On the other hand, I could say that I consider Frankfurter more of a “Hot Dog” than a Jew. And isn’t it high time we had a Hamburger on the court? We had a Burger, but that seems sadly truncated.
May 9th, 2009 at 2:11 pm
Serial,
These aren’t word games, their logical tests and what you guys propose is no different than some white supremisist who worships at the Aryan altar. The difference is that you belive that it’s right whereas the guy with a pillow case on his head thinks that your wrecking his perfect vision of America.
I love the language of history. You sound like Pol Pot setting the world back to year zero because you’re smarter than everyone else before you–and share the power of infinite wisdom and fairness with the Almighty.
What you propose is not quantifable, and thus incapable of review. Like the previous President, you in essence ask us all to trust your judgement, because that judgement is infalible when compared to what a person has worked for or earned in their life.
I cited MLK in my previous comment, because here I listen to a bunch of generous liberals offering to something far more valuable in their minds than what the actual opressed asked for. How dare they seek a means by which to demonstrate their competence, or measure their failings. They should have known that all of that was irrelevant because what matters is making you guys feel better about your deeply held bigotry.
Don’t tell me that history marches on. For you guys to make these absurd arguments just demonstrates how little you understand about history.
May 9th, 2009 at 6:34 pm
Ed Smithe,
Having friends who are minorities has nothing to do with what my argument. Did somebody say something about You see this a lot among conservatives: they’ve been told by other conservatives what liberals’ argument are, and don’t bother to let the actual words and ideas that actual liberals argue interfere with the perception.
Here, let me paste my argument. Again. So you can try to figure out the great mystery that’s eluding you. Third time’s the charm!
Wow. The prevailing social conditions aren’t circumstances? What does that even mean? You’re just cutting concepts you don’t like out of the dictionary now.
Yes, that is one of the reasons why minorities are under-represented; because their lack of electoral power allows majorities to subordinate them. Other reasons involve centuries of Jim Crow and slavery and segregation, homophobic attitudes and laws, and social and professional networks that tend to consist of people from similar racial and social backgrounds. So?
No, what I’m proposing is that we support policies that bring about social and political equality, not numerical equality. Where on earth did you get the idea that I believe numerical equality to be necessary to accomplish that end?
May 9th, 2009 at 6:38 pm
And Ed? You clearly don’t know the first thing about Martin Luther King’s philosophy, so you should stop citing it to argue for beliefs that are precisely the opposite of his own.
The term “affirmative action” did not come into currency until after King’s death “but it was King himself, as chair of the Southern Christian Leadership Conference, who initiated the first successful national affirmative action campaign: “Operation Breadbasket.”
In Atlanta, Philadelphia, Chicago and other cities, King staffers gathered data on the hiring patterns of corporations doing business in black communities, and called on companies to rectify disparities. “At present, SCLC has Operation Breadbasket functioning in some 12 cities, and the results have been remarkable,” King wrote (quoted in Testament of Hope, James Washington, ed.), boasting of “800 new and upgraded jobs [and] several covenants with major industries.”
King was well aware of the arguments used against affirmative action policies. As far back as 1964, he was writing in Why We Can’t Wait: “Whenever the issue of compensatory treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask nothing more. On the surface, this appears reasonable, but it is not realistic.”
King supported affirmative action”;type programs because he never confused the dream with American reality. As he put it, “A society that has done something special against the Negro for hundreds of years must now do something special for the Negro” to compete on a just and equal basis (quoted in Let the Trumpet Sound, by Stephen Oates).
In a 1965 Playboy interview, King compared affirmative action”;style policies to the GI Bill: “Within common law we have ample precedents for special compensatory programs…. And you will remember that America adopted a policy of special treatment for her millions of veterans after the war.”
Ed tells me that affirmative programs intended to undo the legacy of discrimination run contrary to King’s vision; and yet Martin Luther King says precisely the opposite.
Ed, Martin Luther King, Jr. is not your teddy bear.
May 10th, 2009 at 2:57 am
Martin Luther King was not an intellectual man. He did great things for Civil Rights, but he was also a man who flirted with Communism (though he was no traitor) and plagiarized much of his Ph. D thesis. Much of his politics is incoherent, though he was the first to powerfully voice a vision of equality that anyone of any race could agree with.
He is not your Nozick, either.
May 10th, 2009 at 7:29 am
Billare,
Yes. Because we all know that thinking that the NLF might have more interest in the welfare of the peasants than Marshal Ky, or that Karl Marx may have had some profound insights, is much more evil than saying “Segregation today, segregation tomorrow, segregation forever.”
Give me a break, man.
May 10th, 2009 at 10:38 am
I never said he was evil. I never even said he wasn’t great. All I said is that he wasn’t an intellectual, and thus the entirety of his philosophies on helping the black community pale in comparison to his speechifying and his tirelessness in working for civil rights.
It’s possible to recognize that some people are suited to the foot-soldier role of a movement, and some people are better suited to being the brains. Reagan wasn’t an intellectual man either, though I’d argue he mostly got it right. Does that make what I said go ever easier? What if I said I got a Negro Pass?
May 10th, 2009 at 2:47 pm
Re: Reagan wasn’t an intellectual man either, though I’d argue he mostly got it right.
Yes, he sure got it right on the question of butchering large numbers of Central American civilians. Are you actually going to stand here and defend Mr. Reagan’s policies with respect to Nicaragua and El Salvador?
May 10th, 2009 at 3:53 pm
Honestly, I don’t know much about that stuff, so “no”. But I’ll make sure to peruse the appropriate and balanced sources in time.
May 11th, 2009 at 4:43 pm
Hrm, the conventional wisdom seems to be that the short short list comprises Elena Kagan, Diane Wood, and Sonia Sotomayor. Let’s look at them:
Kagan: 48 y/o, summa cum laude at Princeton, magna cum laude at Harvard Law, editor of the law review, supreme court clerk to Justice Marshall, influential law professor, Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, Deputy Director of the Domestic Policy Council, dean of Harvard Law School, Solicitor General.
Wood: 58 y/o, highest honors at U.T. Austin, order of the coif at University of Texas law, Office of the Legal Adviser of the U.S. Department of State, professor at Georgetown law and then Chicago Law, special assistant to the assistant Attorney General, Deputy Assistant Attorney General, judge on the Court of Appeals for the Seventh Circuit since 1995.
Sotomayor: 54 y/o, summa cum laude at Princeton, Yale Law, editor of the law review, Assistant U.S. District Attorney, associate and then partner at Pavia & Harcourt, judge on the U.S. District Court for the Southern District of New York. She’s been on the Court of Appeals for the Seventh Circuit since 1998.
There isn’t anyone more “qualified” than Kagan or Sotomayor. Richard Posner, maybe, but he’s a conservative and far too old. I guess Wood’s “qualifications” aren’t quite as good, so she’s merely highly qualified rather than spectacularly well qualified, but I wouldn’t consider the difference that significant.