I’m thinking more and more that the president should have nominated a Protestant to the court. Think about it: Liberals have been arguing for decades in favor of diversity as a fundamental value in schooling, hiring and choosing governing/decision-making bodies. How can a Democratic president take the step that renders the Supreme Court devoid of a single member of America’s majority? Even from a purely political point of view, how can a Democrat facing a tough midterm election send the message (however unintended) to the country’s majority demographic group, which happens to be the demographic that’s most wary of Democrats, that they’re not valued?
There are a variety of reasons why liberals have insisted on diversity as an essential factor in these matters. For one, to ensure that all groups’ values and interests are represented at the table. For another, to give all segments of society an equal sense of ownership. Then there’s the simple matter of guaranteeing equal opportunity and opening doors that were previously closed. No, a black or a woman or a Hispanic on the high court doesn’t do much to change the lives of ordinary people, but it makes a big difference in their sense of themselves and how they understand their place in society.
Conservatives have complained since the 1960s that deliberately advancing minorities will effectively reduce opportunities for members of the majority. Liberals dismiss this as a dodge to defend the status quo. The purpose of diversity is to bring the excluded up to a level of equality, not to elevate one group above another. Defending majority rights has always smacked of David Duke and the White Citizens’ Councils: preserving privilege. Besides, the idea that the majority could ever become excluded seemed impossible.
Well, here we are. No Protestants on the Supreme Court. A group that feels itself, with some justice, to be the core, founding majority of America, and has been feeling itself under siege, now looks at the highest court in the land and doesn’t see itself there.
Rabbi Brad Hirschfield, co-president of CLAL, argues in a piece on Huffington Post that religion shouldn’t be a factor in choosing Supreme Court justices, but this case is different — if for no other reason, then because diversity and inclusion are the Democrats’ own principles, and there’s something to be said for consistency in adhering to core principles.
Generally speaking, the religious background and/or affiliation of Supreme Court Justices ought to be completely irrelevant, but in this case it may be otherwise. In this case, the decision to create a Protestant-free Supreme Court may violate the President’s own principles. And if it doesn’t, then it sends a clear message about the relative unimportance of religion, at least when compared to gender identity. President Obama has made it clear that personal life experience and the awareness it creates should be factors in determining who is best suited to serve as a Justice. Comments made by Justice Sotomayor about the value of her experiences as a Latina, comments defended by the President, made that abundantly clear. … Why is it that gender experience is relevant, but religious experience is not? Why is it that a court with which more Americans can identify in terms of gender is important, but one with which they can identify in terms of faith is not?
Pat Buchanan, in a blog post at The American Conservative, does a wicked number on the Democrats’ record in choosing justices. But the numbers are surprising:
Not since Thurgood Marshall, 43 years ago, has a Democratic president chosen an African-American. The lone sitting black justice is Clarence Thomas, nominated by George H. W. Bush. And Thomas was made to run a gauntlet by Senate liberals. Indeed, of the last seven justices nominated by Democrats JFK, LBJ, Bill Clinton and Barack Obama, one was black, Marshall; one was Puerto Rican, Sonia Sotomayor. The other five were Jews: Arthur Goldberg, Abe Fortas, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan. If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats. Is this the Democrats’ idea of diversity? Not in living memory has a Democratic president nominated an Irish, Italian or Polish Catholic, though these ethnic communities once gave the party its greatest victories in the cities and states of the North. What happened to the party of the Daleys, Rizzos and Rostenkowskis?
Hold on. Pat’s just getting wound up.
If Kagan is confirmed, three of the four justices nominated by Democratic presidents will be from New York City: Kagan from the Upper West Side, Sotomayor from the Bronx, Ruth Bader Ginsburg from Brooklyn. Breyer is from San Francisco. What kind of diversity is this — either in geography or life experience?
Beyond diversity in identity and background, there’s another, more fundamental reason why religion matters in this case. Joel Osler, who teaches law at the Baptist-sponsored Baylor University and heads the Association of Religiously Affiliated Law Schools, reminds us in a blog post on the Dallas Morning News website that religion plays a major role in shaping Americans’ values. And while Osler doesn’t point this out, there is such a thing as a Protestant understanding of the world, broadly speaking, that isn’t the same as a Catholic understanding. Here’s Osler:
Religious diversity is particularly important on a Court which so often gauges broad principles within the American population. For example, the Court often uses a “shocks the conscience” test in assessing Constitutional violations in criminal cases. For many people, the conscience is formed largely through faith, and different faiths will shape the conscience in different ways. Without a diversity of faiths on the Court, and especially the representation of the largest religious bloc in the country, a discussion of “conscience” may not reflect the truest sense of our common beliefs.
Jonathan Jeremy “J.J.” Goldberg is editor-at-large of the Forward, where he served as editor in chief for seven years (2000-2007).