The Supreme Court and the limits of diversity
(Incidentally the name of my Harry Potter wizard rock band is Luna and the Limits.)
One interesting thing about the Kagan nomination is her non-judgeness. Not in the sense that being a judge makes you more/less qualified to be a justice, but rather that having a non-judge justice has been a goal of presidents since Clinton chased after Mario Cuomo. That was a part of Harriet Miers appeal for Bush. Now Obama is close to making it happen. Why do presidents and legal advisers of both political stripes want non-judges? That word that some try and make dirty: diversity.
Some people--okay, some Republicans--try to make the quest for diversity on the Court (and in government in general) seem like a new thing and quixotic at best, deleterious at worst. Fact is, politicians have been trying to balance the SCOTUS (titter) since its founding. Originally, the balancing focused on geography. A court dominated by all Virginians or New Englanders would antagonize the non-represented parts of the country. Things worked out very well when the South felt that its interests weren't being reflected on the nation level and even before that, New England was threatening secession. As Jewish people and Catholics grew in number and political strength in the US, presidents started to save an least one seat on the court for them, the so called "Jewish seat" and "Catholic seat." By a fun quirk of history, assuming Kagan is appointed, there will be 3 Jewish people and 6 Catholics on the Court; no Protestants.
Recently, the focus has been on women (3 out of the past 4 nominees) and minorities (appointing Thomas to Marshall's seat, Sotomayer). But while the court has grown diverse in appearance, some parts of the court have gotten less so. No member of the Court has run for or held political office as a legislator or an executive. With the inclusion of Kagan and the exception of Thomas, every member of the court is from the North (I believe 4 of the current 9 are from the Newark-NYC area) and attended either Harvard or Yale.
Why does this matter? The one of SCOTUS' jobs is to interpret laws. Having a former legislator on board would give insight into the law making process. With increased population demands on a drying Southwest, water rights issues will come before the Court. A Southwesterner could have insight and experience in the water rights realm. And so on. Basically, its' the argument for diversity anywhere. We have differences, but that isn't necessarily a bad thing. In fact it can be great.
The thing is, there are only nine slots on the Court and openings, especially with improving medicine, are rare. The US is a large, diverse country. There is no way that every facet of it can be reflected in the SCOTUS while maintaining the high standards the Court should aspire to. Sure, you can look for an Asian lesbian from the Pacific Northwest who has held legislative office, for example, but by focusing on that narrow box you exclude a great deal of talented people. This isn't an argument against diversity per se; however, when diversity and a balanced court leads to a much weaker court that is an issue. For example, Clarence Thomas is an African American selected to replace the only African American on the bench, Thurgood Marshall. There are a great number of Blacks who would be great on the Court. The problem is, most of them, like most of Black people in America, are Democrats. Bush, not wanting to get chased out of town by angry conservatives, couldn't pick a Democrat or even a moderate African American; however, he had massive pressure to pick a Black person for the seat. Bush had to pick Thomas. In the name of diversity (and politics) we are stuck with an underqualified, laconic to the point of catatonia, probable sexual harasser on the Court for a very long time. Also, he's so crazy he makes Scalia look like Solomon. Stare decisis means nothing to him.
Personally, I'd rather have 15 years without an African American and a court of 9 of the best and brightest* than the current situation. Again, this is not an argument against diversity, but a warning to balance the experience and wisdom a candidate brings to his or her qualifications.
By the way, if you want a good starting place for learning about the SCOTUS, pick up Jeffrey Toobin's "The Nine." The thesis is tracking the Court's rightward march for the last 30 years, but it provides a great overview of the institution in general. Toobin really brings to life the justices and the players around them. He does it in a way that doesn't require a law degree or previous extensive understanding of the legal system to get. It's a damn fine read.
*Bigotry, lack of opportunities, etc. often leads to minorities not being able to join the ranks of the best and brightest.
One interesting thing about the Kagan nomination is her non-judgeness. Not in the sense that being a judge makes you more/less qualified to be a justice, but rather that having a non-judge justice has been a goal of presidents since Clinton chased after Mario Cuomo. That was a part of Harriet Miers appeal for Bush. Now Obama is close to making it happen. Why do presidents and legal advisers of both political stripes want non-judges? That word that some try and make dirty: diversity.
Some people--okay, some Republicans--try to make the quest for diversity on the Court (and in government in general) seem like a new thing and quixotic at best, deleterious at worst. Fact is, politicians have been trying to balance the SCOTUS (titter) since its founding. Originally, the balancing focused on geography. A court dominated by all Virginians or New Englanders would antagonize the non-represented parts of the country. Things worked out very well when the South felt that its interests weren't being reflected on the nation level and even before that, New England was threatening secession. As Jewish people and Catholics grew in number and political strength in the US, presidents started to save an least one seat on the court for them, the so called "Jewish seat" and "Catholic seat." By a fun quirk of history, assuming Kagan is appointed, there will be 3 Jewish people and 6 Catholics on the Court; no Protestants.
Recently, the focus has been on women (3 out of the past 4 nominees) and minorities (appointing Thomas to Marshall's seat, Sotomayer). But while the court has grown diverse in appearance, some parts of the court have gotten less so. No member of the Court has run for or held political office as a legislator or an executive. With the inclusion of Kagan and the exception of Thomas, every member of the court is from the North (I believe 4 of the current 9 are from the Newark-NYC area) and attended either Harvard or Yale.
Why does this matter? The one of SCOTUS' jobs is to interpret laws. Having a former legislator on board would give insight into the law making process. With increased population demands on a drying Southwest, water rights issues will come before the Court. A Southwesterner could have insight and experience in the water rights realm. And so on. Basically, its' the argument for diversity anywhere. We have differences, but that isn't necessarily a bad thing. In fact it can be great.
The thing is, there are only nine slots on the Court and openings, especially with improving medicine, are rare. The US is a large, diverse country. There is no way that every facet of it can be reflected in the SCOTUS while maintaining the high standards the Court should aspire to. Sure, you can look for an Asian lesbian from the Pacific Northwest who has held legislative office, for example, but by focusing on that narrow box you exclude a great deal of talented people. This isn't an argument against diversity per se; however, when diversity and a balanced court leads to a much weaker court that is an issue. For example, Clarence Thomas is an African American selected to replace the only African American on the bench, Thurgood Marshall. There are a great number of Blacks who would be great on the Court. The problem is, most of them, like most of Black people in America, are Democrats. Bush, not wanting to get chased out of town by angry conservatives, couldn't pick a Democrat or even a moderate African American; however, he had massive pressure to pick a Black person for the seat. Bush had to pick Thomas. In the name of diversity (and politics) we are stuck with an underqualified, laconic to the point of catatonia, probable sexual harasser on the Court for a very long time. Also, he's so crazy he makes Scalia look like Solomon. Stare decisis means nothing to him.
Personally, I'd rather have 15 years without an African American and a court of 9 of the best and brightest* than the current situation. Again, this is not an argument against diversity, but a warning to balance the experience and wisdom a candidate brings to his or her qualifications.
By the way, if you want a good starting place for learning about the SCOTUS, pick up Jeffrey Toobin's "The Nine." The thesis is tracking the Court's rightward march for the last 30 years, but it provides a great overview of the institution in general. Toobin really brings to life the justices and the players around them. He does it in a way that doesn't require a law degree or previous extensive understanding of the legal system to get. It's a damn fine read.
*Bigotry, lack of opportunities, etc. often leads to minorities not being able to join the ranks of the best and brightest.