A Balanced Court

The current issue of The New Yorker has a "Talk of the Town" comment by Jeffrey Toobin that puts Judge Sotomayor's nomination to the Supreme Court in historical perspective. He reminds readers that Presidents have been conscious of diversity when picking justices almost from the beginning. In the past, for instance, regional diversity was the goal: "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." That seemed appropriate when different states had clear economic interests that seemed to need representation and were still jealous of the sovereignty and relative standing in the Union. Maintaining geographic balance was how Presidents created a Court that "looked like America," but as Toobin observes, this diversity did nothing to prevent the Civil War, the ultimate expression of regional diversity in American history. Religious consciousness dates back to Andrew Jackson, who appointed the first Catholic justice in 1836. Race consciousness came, depending on your own racial consciousness, either with the appointment of Louis Brandeis in 1916 or the appointment of Thurgood Marshall in 1967, while gender consciousness manifested in the appointment of Sandra Day O'Connor in 1981.

Some forms of diversity become irrelevant over time. Toobin notes that two Arizonans served together for more than two decades recently (O'Connor and Rehnquist) without anyone worrying that that state had acquired too much influence in the Court. Also, no one seems to be greatly troubled (in the mainstream, at least) by the fact that, if confirmed, Sotomayor will be the sixth Catholic in the current Court. That lack of distress seems reasonable when you realize that the Catholic justices traverse the entire ideological spectrum. Fresh emphasis on new forms of diversity becomes necessary at certain moments of history, Toobin suggests. President Obama, for instance, "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....As [he] 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."

This view can be taken to its absurd extreme -- how many Americans are mentally retarded, one might ask, and when would their numbers entitle them to a seat at the table of power? The idea that one from a certain group must be given a position of power just because there are lots of people in that group rankles my meritocratic conscience. But Toobin does us a service by pointing out that there is nothing new about the practice, and that it doesn't just go back to those nutty Sixties radicals, even when his invocation of the Civil War might remind us that diversity for its own sake might lack practical value. We're left with the paradox at the heart of any kind of "affirmative action" policy. Our ideal is "blind" Justice that respects principles, not persons. It should be colorblind, creed-blind, region-blind. But if Justice has not been blind to persons in the past, if it has discriminated on sight or for any other region, it cannot prove itself truly blind in the good sense unless it somehow acknowledges those to whom it had been willfully blind in the past. Some people can't accept that necessity because it violates their own sense of blind justice, which they want to be blind to the past for some reason. But even if Justice is blind, it isn't deaf. It can listen to reason, and sometimes reason trumps metaphors.