There's diversity ... and then there's diversity

Sensible people all around the country are hailing President Obama’s choice of Sonia Sotomayor as the next Associate Justice of the Supreme Court.  And rightly so—we were overdue for another woman on the Court, and long overdue for a Latino on the highest bench in the land.  Which is not to say, as the increasingly-delusional right wing noise machine slobbers incessantly, that Sotomayor will dispense Latino justice or female justice or Bronx justice.  Or even, ghopod-forbid, empathic justice. 

Once confirmed (and she will be confirmed), Justice Sotomayor will bring to the Court her unique set of life experiences.  In that sense, she’s no different from any other member of the Court.  No matter how dispassionate a person may attempt to be, one’s decision-making will inevitably be colored by his or her background.  That Sonia Sotomayor is the daughter of immigrants (sorta ... after all, Puerto Rico has been an American colony since 1898, and its residents have been US citizens since 1917), lost her father in childhood, and has been a Type I diabetic nearly her entire life will always be a part of her.  So too will her Ivy League education, her time as a DA in Manhattan, her work in a high-powered international law firm, and her years on both the circuit and appellate federal benches.

She will, in that sense, be no different from her eight SCOTUS colleagues.  Each and every one of them developed his or her judicial mindset from an underlying emotional and psychosocial history, along with the intellectual rigor of legal training and scholarship.

While her life story brings valuable, and welcome, diversity to the Supreme Court in the topic areas that the media and the wingnuts concentrate on, in other ways Sonia Sotomayor’s story is same-old, same-old for the Supreme Court.  In fact, it might be argued that in at least one way, the Sotomayor nomination actually makes SCOTUS less diverse.

By replacing David Souter with Sonia Sotomayor, we lose one of the five Harvard Law graduates (Breyer, Kennedy, Roberts, and Scalia are the others) on the Court while adding a third Yale Law alum to the current pair of Alito and Thomas.  Yes, that’s right ... seven of the nine members of the Court are either Crimson or Eli.  Furthermore, Ginsburg attended Harvard Law before graduating from Columbia.  Only Northwestern Law grad John Paul Stevens is unassociated with the pair of law schools.  Even at the undergraduate level, the Supreme Court Justices come almost entirely from elite schools—Harvard (Roberts and Souter), Stanford (Breyer and Kennedy), Princeton (Alito and Sotomayor), Chicago (Stevens), Georgetown (Scalia), Cornell (Ginsburg).  Only Holy Cross Crusader Clarence Thomas breaks that mold.

I’m not in any way making a Roman Hruska argument here.  For those too young to remember Senator Hruska (R-NE), he ludicrously and disingenuously defended Richard Nixon’s SCOTUS nomination of one G. Harrold Carswell in 1970 with:

Even if he were mediocre, there are a lot of mediocre judges and people and lawyers.  They are entitled to a little representation, aren’t they, and a little chance?  We can’t have all Brandeises, Frankfurters and Cardozos.

(For the record, Carswell was not confirmed, and the replacement for Abe Fortas on the Supreme Court turned out to be the estimable Harry Blackmun, a graduate of Harvard College and Harvard Law)

The point here isn’t that I want mediocrities on the Supreme Court ... far from it!  I’m merely noting that there are plenty of rigorous, prestigious, distinguished law schools located in places that aren’t Cambridge or New Haven, and plenty of highly qualified graduates of such institutions who could been nominated for this seat on the Supreme Court.  In this sense, Sonia Sotomayor adds no diversity to the makeup of SCOTUS.

Another area of nondiversity on the Supreme Court is prior legal experience.  Every single member of the current Court came to SCOTUS from the federal appellate bench, and Sotomayor won’t change that in the slightest.  Though this path may seem like a logical progression, it hasn’t always been so.  None of the last three appointees prior to today’s Court (Powell, Rehnquist, and O’Connor) came to SCOTUS from federal judgeships.  And few of our greatest Supreme Court Justices stepped up from federal Appeals Court—Warren was governor of California, Douglas headed the SEC, Frankfurter was a law professor (and former White House official), Black was a US Senator, Brandeis was a lawyer in private practice.  Way back when, John Marshall actually served as both Secretary of State and Chief Justice between February 4 and March 4, 1801.

In another sociocultural arena, Sotomayor will actually decrease the Supreme Court’s diversity.  Justice Souter is an Episcopalian.  He and Justice Stevens are the only Protestants on the current Court.  Of the remaining members of the Court, Justices Breyer and Ginsburg are Jewish, and all the rest—Alito, Kennedy, Roberts, Scalia, and Thomas—are Catholics.  Adding Sotomayor will make the Court two-thirds Catholic.  Again, I’m not suggesting that there will be some sort of Papist orientation to the Court, just noting these facts.

As the title says, there’s diversity and then there’s diversity.  Whatever her influence, whatever her diversity or lack thereof, I applaud the nomination of Sonia Sotomayor to the Supreme Court.  Let’s just hope President Obama gets the chance to nominate replacements for the ilk of Scalia, Alito, Thomas, and Roberts.  I won’t quibble about types of diversity if we can get those pernicious legal minds off the highest court in the land.

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