by Jeffrey Toobin | The New Yorker
In making nominations to the Supreme Court, Presidents care about diversity, which is a relatively new term for an idea that is nearly as old as the Court itself. In the early days of the republic, when regional disputes were the foremost conflict of the era, nominees were generally defined by their home turfs. So Presidents came to honor an informal tradition of preserving a New England seat, a Virginia seat, a Pennsylvania seat, and a New York seat on the Court. In the nineteenth century, as a torrent of European immigrants transformed American society, religious differences took on a new significance, and Presidents used Supreme Court appointments to recognize the new arrivals’ growing power. In 1836, Andrew Jackson made Roger B. Taney the first occupant of what became known as the Catholic seat on the Court, and that tradition carried forward intermittently for more than a century, with Edward White, Joseph McKenna, Pierce Butler, Frank Murphy, and William J. Brennan, Jr., occupying the chair. In 1916, Woodrow Wilson nominated Louis D. Brandeis, establishing the Jewish seat, which later went, with brief overlapping periods, to Benjamin N. Cardozo, Felix Frankfurter, and Abe Fortas.
With the distance of history, this evolution looks almost inevitable, but the patterns of Supreme Court nominations reflect larger struggles in American life, and many of the confirmation fights were bitter. Moreover, the Justices themselves had little success in addressing the sources of these tensions. (Regional balance on the Supreme Court didn’t prevent the Civil War, and religious diversity didn’t do much to halt anti-Catholic and anti-Semitic bigotry.) In our own era, when race and gender have defined so much of our politics, it isn’t surprising that the appointment of the first African-American, Thurgood Marshall, in 1967, and the first woman, Sandra Day O’Connor, in 1981, became landmarks in the history of both the Court and the country. Nor is it surprising that these appointments—and President Obama’s choice of Sonia Sotomayor, who if confirmed will be the first Hispanic Justice—illuminate our current ideas about diversity.
The use of biographical detail to predict or explain the course of a Supreme Court career is a tool of modest helpfulness. (How much does it matter that John Paul Stevens grew up in Chicago, where his family owned the swanky Hotel Stevens? When Anthony M. Kennedy and David H. Souter were appointed to the Court, both men still lived in the houses they were raised in. So?) Still, one can only admire the way that Sotomayor, who spent her childhood in a housing project in the South Bronx, won scholarships to Princeton and Yale Law School, where she excelled, then distinguished herself as a prosecutor and as a private lawyer. More important, for present purposes, her seventeen years as a federal judge in New York reveal her to be a thoughtful and pragmatic liberal, with an acute sense of the real-world implications of her rulings.
As with earlier breakthrough nominations, Obama’s selection of Sotomayor has stirred some old-fashioned ugliness, and in that alone it serves as a reminder of the value of a diverse bench and society. Some anonymous portrayals of the Judge offered the kind of patronizing critiques (“not that smart”) that often greet outsiders at white-male preserves. Women who have integrated such bastions will be familiar, too, with the descriptions of her temperament (“domineering”), which are of a variety that tend to reveal more about the insecurity of male holdovers than about the comportment of female pioneers. The pernicious implication of such views is that white males, who constitute a hundred and six of the hundred and ten individuals who have served on the Court, made it on merit, and that Sotomayor is somehow less deserving.
At the Court, as in American life, the rules of diversity have changed. Regional differences faded long ago. The fact that two Arizonans, O’Connor and William H. Rehnquist, served together for almost a quarter century mattered little to anyone. Religious tensions have also cooled. By the time Bill Clinton named Ruth Bader Ginsburg and Stephen G. Breyer to the Court, the fact that both are Jewish (and replaced non-Jewish predecessors) was little more than a curiosity. If Sotomayor is confirmed, there will be six Catholics on the Court, which is also of minor significance. George W. Bush appointed John G. Roberts, Jr., and Samuel A. Alito, Jr., because they are conservative, not because they are Catholic. (The Catholic Brennan was the Court’s greatest liberal.) More than anything, it seems clear that the President saw in Sotomayor a kindred spirit—a high achiever from a humble background who reflects, as best as can be determined, his own brand of progressivism.
Still, even Obama, in announcing his choice, shied away from stating the obvious: that Sotomayor was picked in part because she is a Hispanic woman. (The President called his choice an “important step” but didn’t say why.) There was no need for such reticence. Earlier Presidents didn’t apologize for preserving the geographic balance, and this one need not be reluctant to acknowledge that Hispanics, the nation’s fastest-growing ethnic group, who by 2050 will represent a third of the American people, deserve a place at this most exclusive table for nine. (Nor, of course, did he note that the nomination was in part to satisfy Hispanic voters—the electoral benefit being another constant among Presidents.) As Barack Obama knows better than most, it is a sign of a mature and healthy society when the best of formerly excluded groups have the opportunity to earn their way to the top.
Supreme Court Justices are less bound by precedent than any other kind of judge, so one can never know for sure how even an experienced jurist like Sotomayor will rule once she has that freedom. As a judge on the Second Circuit, she has heard scarcely any cases involving the death penalty, gay rights, or the limits of executive power, which are all mainstays of the Supreme Court docket. Yet, like Obama, Sotomayor has been sympathetic to claims of discrimination by members of racial and religious minorities, and by the disabled. Also like the President, she is a believer in a strong federal government; she rejected claims by an abortion-rights group that the Bush Administration had violated the First Amendment by withholding aid from foreign groups that promote abortion. When the government pays the piper, she said, in effect, it gets to call the tune. It’s hard to attribute any of her opinions directly to her gender or to her ethnicity, but, as she has observed, her background is inseparable from her views—a circumstance that has applied to every Justice who has ever served on the Court. At this point, one can say only that Sotomayor looks to be what the tableau of President and nominee in the East Room suggested—a fitting representative of a changed and changing nation.