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Issue is brilliance, not balance (by gender or faith)
Q: If Elena Kagan is confirmed to replace retiring Justice John Paul Stevens, the Supreme Court would for the first time in its history be without a justice belonging to America's largest religious affiliations -- the Protestant traditions. If Kagan is confirmed, six of the justices will be Roman Catholic and three will be Jewish. Should the Supreme Court be more representative of America's religious traditions? Does religion matter in the mix of experience and expertise that a president seeks in a Supreme Court nominee?
Elena Kagan's appointment would usher in a new era in the history of the United States Supreme Court, both in terms if inclusion and exclusion. It will be the first time in history that three women have served on the court, and the first time ever that the court will be protestant-free. If confirmed, Kagen will be the third Jew to join six Catholic Justices.
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 are 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.
The idea that Justices interpret the law in some abstract way, and read as if uninfluenced by all their previous experiences is inane. What does it mean to read anything independent of all that we as readers have come to know and experience? There is no such thing.
Since there is no such thing as reading the law independent of the reader's experience, both the President and Justice Sotomayor were probably wise to admit what we all already know, and should have admitted all along. But if life experience matters, then a Protestant-free court is not so unimportant after all. Unless of course, religion is simply one of those things that doesn't matter, but gender is.
Why is it that gender experience is relevant, but religious experience is not? Why is it that a court with which more American can identify in terms of gender is important, but one with which they can identify in terms of faith, is not?
If it is time for conservatives to give up naïve notions of Judicial neutrality and the idea that the Constitution simply says what it says, then it is also time for liberals to give up the tendentious claim that they are the inclusive ones. In fact, people of all stripes tend to include what they like and exclude what they do not, and the sooner we are all honest about that, the healthier the process of appointing and confirming judges will be.
The issue should be brilliance, not balance. And it goes without saying that one's definition of brilliance is informed by many things. As long as mastery of the law and ability to play nicely with the other Justices is at the top of the list, then we should save political battles for elections and accept that elected officials from both sides will tend to appoint judges who reflect their understanding of the law, stop worrying about a judges identity, religious, gender or otherwise.
By
Brad Hirschfield
|
May 11, 2010; 10:10 AM ET
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Posted by: haveaheart | May 12, 2010 1:55 PM
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Brad, have you considered that you might need a break? I'm not being sarcastic here.
Posted by: FarnazMansouri | May 12, 2010 12:15 AM
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But the issue IS balance.
For a along time, the Supreme Court was out of balance. Now, there is a consious effort to balance it more properly. Because there are so few justices, and they serve for so long, balancing it will take a long time. Probably in 20 or 30 years, the idea of balancing the court will fade away.
Ginsberg will probably not be serving much longer. Then Obama will probably go out of his way to pick a Protestant, since he is now getting so much flack for a non-Protestant Court. I just hope he picks a Methodist or an Episcopalian. And he might pick another woman, too, to keep the court in balance with three women, instead of just two.
Posted by: DanielintheLionsDen | May 11, 2010 11:07 AM
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"Unless of course, religion is simply one of those things that doesn't matter, but gender is...Why is it that gender experience is relevant, but religious experience is not? Why is it that a court with which more American can identify in terms of gender is important, but one with which they can identify in terms of faith, is not?"
Rabbi,
In a nutshell, because religion is a choice while gender is biologically conferred.
Being a man, you likely don't understand this. But for women, who have been slightly more than 50% of the U.S. population for the past half-century, it's increasingly hard to swallow that a fact of our lives is that the minority of males significantly dominates the majority of females in most every important corporate, judicial, social, and governmental edifice, organization, or agency...not to mention in most religious organizations, as well.
Second-class citizenship has been the lot of American women from the day they stepped onto the soil of the New World, and men have taken it for granted that things will always be this way...and that they should be this way.
Consequently, throwing up arguments that religious affiliation should be as important as gender in "balancing" the Supreme Court is willfully disingenuous.
Ultimately, no matter what your bias, it is gender that exists as the main difference among all humans. You can subdivide these two categories in limitless ways (religion, ethnicity or race, income, occupation, education level, height, weight, BMI, preferred ice cream flavors, etc.), but ultimately the world of humans is divisible into only two primary categories: female and male.
That is why striving for -- and attaining -- gender parity in judicial appointments outranks the need for religious parity by a million miles. The interests of more than half the adult citizens of the U.S. should be addressed by courts that more closely reflect the makeup of the actual citizenry they are passing judgment upon.