Diversity Jurisdiction

Do we really need a woman or minority to fill O’Connor’s shoes?

Rumors are flying that George W. Bush really wants to pick a woman or minority to fill Sandra Day O’Connor’s Reeboks. Evidently, his sagging poll numbers and the mishandling of Katrina are making him worry less about his base and more about appearances. Now that it seems he’s a rich white guy who only cares about rich white guys, putting another rich white guy on the highest court in the land looks a little dubious. The hasty decision to switch John Roberts to his nominee for chief justice, rather than an associate, starkly re-opens the question of whether the court needs another minority more than it needs another Scalia. Roberts was a slam-dunk for O’Connor’s seat. But now, with that seat open again, the pressure is back on to find someone who looks like O’Connor. Or, to quote the always-entertaining Manuel Miranda, “Roberts has soaked up the white male seat.”

The early money was on Janice Rogers Brown; she who won’t be happy until courts are once more adjudicating witch trials and drive-by tar-and-featherings. But on Tuesday, Bush made it clear in his inimitable Bush: joking-or-stupid? fashion that Alberto Gonzales is still up at the top of his dance card. It’s clear that Laura Bush and Sandra Day O’Connor are hoping for a girl-justice, and it seems the rest of the country agrees. Most of us should have figured out long ago that Priscilla Owen will be no “better” for women than Clarence Thomas has been for African-Americans. So, why is this still an issue?

A CBS poll reported on July 15 found that nearly six out of every 10 Americans thought it important to name another woman to replace O’Connor. A CNN/USA Today/Gallup poll from the same time saw 80 percent of those polled saying they liked the idea of a woman replacement for O’Connor. Thirteen percent thought it was “essential.” Do we really believe that people who look like us actually believe what we do? Or is that just the best proxy we have? Is the court so removed from the public life of this country that nothing matters beyond the appearances of the justices? Or are we gunning for breaking through these race and gender barriers, regardless of fitness, in the hopes that once we claim a woman’s or minority seat, it will stay that way forever?

The most commonly voiced argument for giving O’Connor’s seat to a diversity candidate is appearances, pure and simple. As this editorial puts it: “[W]e believe it’s important for the American people to see themselves reflected in the Supreme Court as much as possible.” Given that the American people see the members of the Supreme Court maybe once every 10 years, this is a little tough to accept. Still, having a court that looks like America confers some sort of public legitimacy on the institution, at least in theory.

But of course, the Supreme Court looks nothing like America. For a long time it’s been composed of six old white guys, two old white ladies, and one middle-aged black guy. The only America that mirrors is an upscale nursing home. There is nobody with a disability on the court, nobody young on the court, no single parents on the court, and nobody poor on the court. So, it’s not really true that we’re desperate to see ourselves in the folks who sit on the bench; it’s that we’re desperate to see members of the groups about which we are most anxious.

Walter Dellinger has argued that the notion of diversity on the court is a slippery one: For instance, there used to be terrific concern about geographic diversity on the court—a New York seat, or certain southern seats. There was also once great urgency for religious diversity on the court. But almost nobody noticed the glut of southwestern jurists on the bench during Rehnquist’s reign. And no one seems bothered that where there was once a begrudging Jewish seat, there are now two. As regional and religious identity became less important in the country, the need for them to be proportionally reflected on the court was diminished. As race and gender have come to define us, that’s what we need on the court.

So, what we want on the court isn’t exactly diversity. It’s diversity reflecting those issues about which we are most anxious right now. It suggests that just because we are worried about race and gender, minority and women judges will worry, too. We don’t care if the Pacific Northwest is unrepresented on the high court, but we freak out when we “lose” a woman’s seat.

All this is predicated on the tricky assumption that one’s gender or race matters even more than one’s ideology. It leads to the outrageously unattractive spectacle of minority groups bickering amongst themselves over whether a minority candidate is enough of a minority to represent them. See, e.g., the failed confirmation battle over Miguel Estrada for the worst of the worst versions of that fight.

Perhaps the perfect metaphor for the sinkhole that comes from these kinds of identity politics is the sidebar debate that has raged for several years now over whether Bush can truly appoint the first Hispanic Supreme Court justice or whether that distinction has already gone to Benjamin Nathan Cardozo—the descendent of Portuguese Jews. Those groups and writers who’ve been brave enough to take up the Great Cardozo Question have found themselves consumed by such minutiae as whether Cardozo considered himself Hispanic; whether Jews can ever truly be Hispanic; whether Cardozo was good for the Latinos; and who gets to decide.

I don’t cite this to belittle the fact that it’s long past time we had a Latino on the court. I just really think it’s worth waiting for the right Latino. And this goes a long way toward explaining why having a court that looks like America is an impossible project. We’ve already established that looking like a woman doesn’t make you responsive to women’s concerns (see Edith Jones just for starters). We’ve established that two women on the court don’t vote as a monolithic women’s bloc. What we’re left with is the faint hope that being of a minority group might make one slightly more likely to worry about the welfare of that group and the outrage that comes when they do not.

I’m not sure what anyone can do to hasten the day when the woman’s seat or the Hispanic seat is as much of an anachronism as the New York seat or the Catholic seat. But it seems to me that we won’t get there until gender and race are the beginning of the conversation rather than the end of it.