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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

The Court’s Many “Diversity Hires”

There’s a nasty undertone to much of the opposition to Sonia Sotomayor’s nomination to the Supreme Court that she is what some people call a “diversity hire”: someone selected for a position to achieve a certain demographic balance in a particular work-place, regardless of qualifications. We are led to believe that such extraneous factors weren’t considered when the 106 white men (out of 110 total appointments) who have served on the Court were selected.
But as legal journalist Jeffrey Toobin explains in The New Yorker today, there have always been “diversity” factors heavily influence Supreme Court appointments, dating back to the Court’s very beginnings:

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.

In other words, the “diversity” considerations that affected the Court’s composition evolved over time, and are still evolving, as women and African-Americans have finally achieved representation. Meanwhile, some of the factors that used to matter don’t any more, as today’s increasingly Catholic SCOTUS (Sotomayor will make it six of nine) illustrates. It’s unlikely that when John Paul Stevens retires, people will take of the need to maintain the “Protestant seat” on the Court.
But the fact that Sotomayor’s gender and ethnicity affected her appointment to the Court makes her part of a very old story, Toobin reminds us:

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.

Indeed, “mature and healthy” minds don’t immediately jump to the conclusion that a Hispanic woman must be disqualified for service on the Supreme Court, other than as a “diversity hire.”

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