RSS Feed MenuFrom my new column in The Week:
In any meaningful sense of the word, nobody gives a damn about “diversity” on the Supreme Court. Does anybody care whether a judge has served in the military or done lawyering for a national security agency? Or whether a judge has expertise in the sciences? Or whether he or she has represented a union as opposed to business clients? Or whether he or she has practiced law abroad or otherwise gained familiarity with foreign legal systems? No, no, no, no. Of all the myriad ways that the life experiences of one lawyer can differ from those of another, it is race and sex that energize our judge-pickers.
Read the rest here.
balconesfault // Jun 4, 2009 at 8:23 am
I think this is a misuse of “Tammany”.Now, had Sotomayor been a long-time Obama supporter who worked for him and fundraised for him (hmm … what Supreme Court Nominee can we think of in recent years who fit that bill?) … the charge of “Tammany Politics” would make sense.I can understand the concern that race and sex (and religion, maybe?) are being used too much as criteria for Supreme Court selections, but this is certainly the wrong title.
PincheMK // Jun 4, 2009 at 8:30 am
Meh– i hate to come to the defense of those who are ultimately incorrect, it is worth noting that in it could at least semi-plausibly be argued that the issues which are probably most often addressed in supreme court jurisprudence are issues of equal rights, inequitable application of laws based on race/ethnicity/religion, and other things having to do with civil rights (first amendment, 4th amendment, etc.) which i guess some could say a member of a ‘disenfranchised minority’ would be more experienced with or sensitive to than, oh, say an evil white devil would be.Still, ill grant you that it seems pretty thin anyway, and your point still has plenty of validity–
ottovbvs // Jun 4, 2009 at 9:50 am
Depends on the definition of diversity. I’d say race and sex were two of the great diversifiers in terms of shaping a world view. And don’t tell me John Roberts doesn’t have a world view, he was appointed because of it. There have been 106 white males on the supreme court, two black males, and two white women. Is it really that awful to start to redress the balance. The association with notoriously corrupt Tammany political machine (Tammany seems to have replaced Chicago as the corruption pejorative du jour) is basically fairly ugly. It’s up there with those other middle aged white men accusing her of being a racist, reverse racist, Latino KKK, another David Duke, etc etc. The far right will love it the rest of us will think it preposterous.
chephren // Jun 4, 2009 at 9:52 am
Frum overstates his case and invalidates it. The beef against Sotomayor as a diversity pick might have substance if she weren’t one of the most experienced judges to be named to the Supreme Court in 50 years or more. She was a diligent and successful prosecutor, a corporate lawyer, and, from what I have read, has more experience as an appellate judge than anyone currently serving on the court. She has also taught at the law schools of Columbia and NYU for ten years. I understand that she has participated in and/or written 3600 judgments. Contrary to the biased cherry-pickers who seek to demonize her based on a dozen or so words quoted out of context which she spoke about her perspective as a Latina judge, her record is centrist, cautious and respectful of both the constitution and legal precedent. It is curious that Frum evokes corrupt, clannish Tammany Hall as an analogy for how Sotomayor was nominated to the court. Curious, too, that he neglects to mention Clarence Thomas in his artitcle. It is Thomas, not Sotomayor, whose tenure on the high court is a product of a Tammany-style political arrangement. What were his qualifications, other than that he was a black conservative judge (of less than 2 years’ service, with hardly an opinion, brief or legal article to his name) and spent 11 years as a loyal Reagan-era civil rights bureaucrat? If ‘diversity’ were not an issue, as Frum says it shouldn’t be, Clarence Thomas would never have made it to the Court.Sotomayor’s experience and the depth of her legal knowledge so far outshines that of Thomas at the time of his nomination that he is completely outclassed by comparison. Clarence Thomas has turned out to be a near-mute rubber stamp. His admirers, perversely, applaud him for his utter silence, his indifference to legal debate and his disengagement from his colleagues. Is this the kind of judge Frum wants?
idrake // Jun 4, 2009 at 10:00 am
I agree that Sotomayor is a pick meant to court a constituency: Hispanics primarily, women secondarily. Even liberals were disappointed with this pick because they thought there were better options: Diane Wood and Elena Kagan. So, why pick Sotomayor? It seems it was not her experience per se. Others met that qualification and exceeded it with better legal scholarship and records of intellectual accomplishment.
balconesfault // Jun 4, 2009 at 11:42 am
“Even liberals were disappointed with this pick because they thought there were better options: Diane Wood and Elena Kagan.”Some liberals certainly were – because they saw in Wood and Kagan justices much more likely to move the bench back over to the left. Sotomayor is viewed by everyone who takes a deep breath and looks at her record as a moderate with a technocratic approach to the law … and not someone who will move the balance of the bench far from the place where Souter leaves it. I suspect it is that record – a moderate with a technocratic approach – that led Obama to select her, since that mirrors much of his own approach.
// Jun 4, 2009 at 12:59 pm
If, as Frum says, it is only race and sex that energize our judge-pickers, wouldn’t that mean that for well over 200 years, justices were being picked b/c they were white and male?Frum is apparently ignorant of the fact that geographical diversity had a very long history of importance in picking justices. But, the question that Frum and others who dislike the Sotomayor nomination refuse to answer is, “What is the evidence that she was picked b/c of her race or gender?”What is the evidence that she was not picked b/c of her record and resume?If Alioto’s record and resume, alone, were good enough to justify his nomination (which they were), please tell us why Sotomayor’s record and resume are not, by themselves, good enough to justify her nomination?Until her opponents answer these questions, it seems that ALL of their claims that she was picked b/c of her race are completely baseless.
sinz54 // Jun 7, 2009 at 4:50 pm
Spartacus: You’ve misunderstood Frum’s point.Frum wasn’t claiming that Obama picked Sotomayor because she’s a female Hispanic. (Though our very own “ottovbvs” has been crowing that Obama “mousetrapped” the Republicans by nominating a Hispanic, I don’t think that was deliberate on Obama’s part.)With all these historical examples of liberal and progressive white male Justices, Frum was trying to show that Sotomayor’s repeated claims that “it takes one to know one” are false. That it’s just as possible for a female Hispanic petitioner to get a fair shake from a white male judge as from a female Hispanic judge, all other things (like judicial philosophy and intelligence and communication skills) being equal.Anyway, I sure hope that’s true. If not, then if there ever are any Asian petitioners before the Court, they haven’t got a chance–none of their own kind sit on the bench.
sinz54 // Jun 7, 2009 at 4:56 pm
Spartacus: I don’t have a problem with “geographical” diversity even today. I don’t have a problem with philosophical diversity either.I have a lot of problem with *racial* diversity, because the Supreme Court is the ultimate judge in the land (cf. Marbury vs. Madison). And so, if they are only capable of dispensing justice to those of “their own kind,” then America’s future is hopeless for most of us. We’ve got some 200 ethnicities in America, of two sexes plus gays and lesbians and transgendered folks. But there are only 9 slots on the Court. You’re virtually admitting that most of America’s ethnicities can’t expect fair justice in our society, since they can’t get enough of “their people” onto the Court without disenfranchising some other ethnicity, gender, or sexual orientation.