As President Obama considers his list of possible nominees to replace retiring Justice David Souter, should diversity be a preferred quality or a required quality? Here the title gives away my opinion: we progressives should not only prefer diversity on the Court, but demand it. Diversity has both symbolic and substantive value, and we need both. That said, there's more to diversity than gender and race.
More below the fold....
Court Hiring III - Diversity Required
This week Morning Feature has considered the retirement and replacement of Justice David Souter on the U.S. Supreme Court. Wednesday we looked at Bill Maher's argument that "It's all about abortion," and whether that's a case of preparing for the last war. Yesterday we examined what the New York Times called "Supreme Court, Inc.," the pro-corporate bias of the present Court. Today we explore diversity and whether President Obama should choose a woman and/or non-white, both for symbol and substance.
Joe and Phil are playing a coin toss game for a $20 bet. The rules were that they'd take turns guessing whether the next toss would be heads or tails. The first to make seven correct guesses would win the $20. But Joe noticed something odd after the sixth toss. Well, two odd things. The first was that Phil was leading 3-0; Phil had guessed right all three times so far, while Joe had guessed wrong all three times. The second was that Phil waited to hear Joe's guess before positioning the coin on his thumb. Joe watched more closely for the next four flips, and saw that if Phil put the coin heads-up on his thumb, the flip would be tails, and vice-versa. And Phil obviously knew it. Now trailing 5-0, Joe objected.
To Joe's surprise, Phil blushed and admitted that he'd learned a trick for controlling the outcome of a coin toss, so yes, he'd had an unfair advantage. "But from now on," Phil said, "I'll let you toss the coin. That way it will be fair."
"From now on?" Joe demanded. "Now that you're ahead 5-0 in a race to seven, we'll be 'fair?' What's 'fair' about that?"
It's a parable, of course. So far as I know, no one has the precise, fine-motor skill required to control the outcome of a coin toss. But it's not a story about coin tosses. It's a story about privilege. Phil had an unfair advantage and used that to acquire a near decisive lead in their game. Yes, it's possible that Joe could make seven correct guesses before Phil makes two, but it's very unlikely. Making the game fair "from now on" ratifies the advantage Phil has already gained.
It's a good metaphor for the conservative approach to law, and the best reason progressives should call for President Obama apply diversity as a requirement, not merely a preference, in his Supreme Court nominees.
"Why do we need the institution of law?"
I've suggested all week that this is a question at least one Democrat on the Senate Judiciary Committee should ask of every judicial nominee. It doesn't ask for an opinion on any specific issue - and judicial nominees cannot and should not answer such questions - but it speaks volumes about a nominee's basic legal philosophy.
Yesterday I wrote that President Obama should avoid nominees whose legal philosophy is grounded in Law & Economics, and some commenters asked what was wrong with Law & Econ theory. They weren't defending it, but rather asking for a critique that they could use in discussing the issue. It's a huge question because Law & Econ has become a huge field.
But the gist of my objection to Law & Econ is simple: it says the law should serve free market economic theory, and we already have a powerful social structure that serves free market economic theory ... the free market economy itself. It's like our friend Phil saying "from now on you can toss the coin." Well sure, now that Phil has a 5-0 lead in a race to seven, he'll let you toss the coin as "fairly" as you please. Law & Econ ratifies the advantages of wealth and privilege, all while claiming to be "neutral."
But the question goes beyond Law & Econ. It extends to concepts like the "unitary executive," or arguments that the law should defer to community majorities in ruling on religious observances in public schools. If the law is "neutral" on these issues, it has no reason to exist. We have other institutions that reward political office and majority power; we don't need law to ratify and reinforce that power.
An institution of law that simply mirrors and amplifies the advantages of other social institutions has no reason for being. Law exists to offset the advantages that exist elsewhere in society. For example, we have criminal statutes so the strongest, meanest, and most treacherous can't dominate the rest of us. A body of criminal law that reduced to "you're on your own" would serve no social purpose. That same principle should apply throughout the body of law. It cannot merely ratify the dominance of economic, political, or social privilege.
"Do fish know they live in water?"
In my opening parable, Joe was surprised that Phil admitted what he'd been doing. And for good reason: most of the time the Phils don't admit they've had an unfair advantage. Often they don't even recognize their advantages as unfair. Phil might argue there's nothing "unfair" about his having the exceptional skill to control the outcome of a coin toss. Or perhaps he simply assumes everyone could do it, or recognize it being done, so if he's gaining an advantage it's because others permit it. He might even say they subconsciously prefer letting him win.
We hear all of those arguments cited in support of economic, political, and social privilege. Those with privilege are often like fish in the water who don't realize they swim in the water. It's hard for any of us to recognize how much of our success was a product of others' influence, but we tend to be very aware of what we've done and think we've earned what we've achieved. The late Molly Ivins' wonderful line about George W. Bush - "He was born on third base and thinks he hit a triple" - applies to each of us in one way or another.
But that's not to say it applies equally, and recognizing and redressing inequalities should be a central element of our law. We have principles of law intended to do that, but when those principles are applied by a near-homogeneous body of judges who share positions of privilege, it's hard to expect them to be the uniquely self-aware fish who recognize the water in which they swim.
Diversity is both symbolic and substantive.
It's easy to see, and to dismiss, the symbolic value of diversity. Consider how many black children's aspirations have changed, merely by seeing Barack Obama as President of the United States. I'm old enough to remember when Sandra Day O'Connor became the first woman to sit on the Supreme Court, and how I felt. Something that had always seemed impossible was no longer impossible.
But diversity is not merely symbolic. Justice O'Connor was not a fish from the pond of male privilege, and her opinions on issues of women's rights reflected her awareness of that privilege. I've read that Justice Ruth Bader Ginsberg misses O'Connor's presence, not because they always agreed, but because having another woman on the court encouraged both to engage issues from their shared perspective of being women. And while Justice Clarence Thomas has been indifferent at best on issues of color, it's reasonable to believe that he and another non-white justice might encourage each other to engage issues from their shared perspective of being non-whites.
O'Connor and Ginsberg did not always agree, nor would Ginsberg and another female justice always agree, nor would Thomas and another non-white justice always agree. But their conversations would, at the very least, not presume a privileged white male perspective so invisible that the privilege cannot be recognized or redressed. And if law does not seek recognize and redress privilege, it has no reason to exist.
A bigger diversity:
But diversity is not limited to sex and race. The field of Supreme Court nominees has grown ever narrower in recent decades. Do we really need yet another federal judge promoted to a Supreme Court already packed with career judges? Why not broaden the field to include law professors, practicing attorneys, diplomats or civil servants holding law degrees, and others who offer different perspectives of law at work in government and society?
Some say President Obama should be "cautious" and pick a "centrist." There are too many important issues to get sidetracked with a contentious confirmation proceeding, they say. But shaping the Supreme Court is one of a president's most important roles in our constitutional system. If there is a task for which a president should be willing to risk political capital, choosing a Supreme Court nominee is that task.
So surprise us, please, Mr. President. Make a bold pick. Give us someone like Anita Hill or Catharine MacKinnon, both of whom are outstanding law professors with courageous and distinguished academic records.
Because whoever you pick will need courage, Mr. President. The currently pro-business Court will soon hear well-funded, media-blitzed challenges to every progressive reform you can wring out of Congress. If those reforms are to be upheld, we'll need a Court willing to stand up against its recent history and the well-organized pressures that will be brought upon it. You can't transform the Court with a single nomination, but you can't transform it without that first single nomination.
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Happy Saturday!