Why Should We Care About Diversity on the Supreme Court?

Nearly every President in modern times has had a chance to nominate a Supreme Court Justice. FDR famously (or infamously) attempted to add seats to the Court and pack it with a majority of liberal justices that would permit the Roosevelt administration to push through regulatory legislation to curb abuses in the securities industry, give employees the right to organize unions, spend money to create government jobs, etc. The public outcry was loud, it never happened, but it had its effect. Much of his agenda made it past the Court and it changed the power structure of the nation toward a much more muscular federal role in our lives.

Successors to Roosevelt well understood the importance of Supreme Court appointments. (An old but excellent book - Alan Drury's Advise and Consent - written in the 1950s) described the process in detail.)

It does not surprise me to hear Senators (the ones who are supposed to give the advice and consent) drone on about how important it is for nominees to erase their entire life histories from their memories and to decide cases based on their understanding of the law, precedent and the facts of the cases that come before them. It sounds almost Orwellian.

Sandra Day O'Connor was a top law student (I believe she went to Stanford) who after graduation could not get a job at a white shoe law firm unless she was willing to be a secretary. She turned to public employment to get where she wanted to go. She was a reliable Republican and was nominated by Ronald Reagan, hardly a liberal. When she joined the Court in the early 80s, the left was concerned that she was a lightweight that would rubber stamp the views of more conservative justices. Many conservatives thought it was a master stroke by Reagan - adding diversity without adding real diversity.

We know that justices don't erase their memories. O'Connor is credited with creating an "intermediate" level of scrutiny when reviewing cases of gender based discrimination. In her view, now well established in Supreme Court jurisprudence, the "strict scrutiny" applied to racial discrimination cases was born out of the nation's history of slavery and the promise of the 14th Amendment to the Constitution. But the history of gender discrimination, in her view, did not deserve "strict scrutiny" nor was it the same as a garden variety discrimination case that deserved to be analyzed at the lowest level of scrutiny - essentially a "rational basis" test. Does anyone really think that her role in fashioning that kind of compromise had nothing to do with her personal experience or that at least some of her colleagues appreciated her unique perspective? Does anyone think that the life experiences of the male justices on the Court don't factor into published decisions?

The only extremists left on the Court are the men who believe that attempting to divine the "original intent of the framers" of the Constitution is the only truly legitimate way to decide cases. I'm not the smartest guy in the room in most cases, but it strikes me as a little bit extreme to think that the framers could have predicted the explosion of technology, immigration or the scars left by slavery that they conveniently (for them) chose to leave in place. To me, the truth is that "original intent" is a fig leaf for applying 18th century notions of a civil society to a 21st century problem. Progressives view the Constitution as a living document, and was made so deliberately because the framers were smart enough to know that they could not possibly predict the nation's growth pattern and what the issues would be hundreds of years later. Moderates find ways to look at both theories of interpretation.

During the last election cycle, when people had reservations about changing their allegiance from Hillary Clinton to Barack Obama, many people simply said, "two words; Supreme Court." That might have been an overstatement of the importance of the Court's decisions in the daily lives of average Americans but on certain issues - reproductive freedom, race and gender discrimination and the federal government's power to do something it has never done - passing legislation that attempts to trump the full faith and credit clause of the Constitution to fail to recognize the legitimacy of same sex marriages performed in a state that permits such marriages, it's a big deal. VP Joe Biden calls many of these "kitchen table" issues.

We need more Justices who were brilliant law students, served admirably on lower courts and watched their parents struggle with medical and other bills at their kitchen tables. Nominees' public statements about their judicial philosophy are fair game. So are some of their memberships in professional societies that have unmistakable views on the power of the judiciary, particularly when the nominee was in a leadership role. I believe, though, that it is a not-so-subtle way of discriminating to presume that a nominee is unsuitable because they were bootstrappers who were once poor and will therefore reflexively bend the Constitution to legislate from the bench. If that were the standard, Clarence Thomas should never have been confirmed.