Friday, April 16, 2010
Diversity on the Court Revisited
I first posted the following in September 2005, when Sandra Day O'Connor was being replaced on the Supreme Court. Now that John Paul Stevens has announced his retirement, I think it's time once again to think carefully about the issues I raised nearly five years ago. I won't bother re-writing the essay to fit the current situation. Just read it and consider your position on the issues.
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I was pleased to read the other day that President Bush said, in reference to his choosing a replacement for Supreme Court Justice Sandra Day O'Connor, that "diversity is one of the great strengths of this country." He couldn't be more right, and I hope he will have the courage to act on his words.
The Supreme Court Justices, as we all know, were intended by the Founding Parents-of-Unspecified-Gender to be representatives of the people who would, in the words of Senator Dianne Feinstein, understand "the problems real people have out there." Their personal characteristics and attributes come into play again and again as they decide weighty issues of civil procedure, ripeness, vicarious liability, and Commerce Clause power. It's obvious that the Justices first look to themselves and then to the people when judging cases, and not to some defined standard, as though it were written down on some yellowed piece of parchment.
That's why I'm a fervent supporter of true diversity on the Court. I'm pleased that in recent decades, Presidents have had the courage to nominate Justices who broke the mold of highly educated white men. We've expanded the panoply of Justices to include two highly educated black men and two highly educated white women.
But President Bush shouldn't stop there. Because it's so essential that the Supreme Court reflect the diversity of the nation, we now need a Justice who represents a larger cross-section of society than even the Justices we already have.
That's right. We need a stupid person on the Court.
Ever since John Jay was named the first Chief Justice, the Supreme Court has been the exclusive realm of very smart people. But most of the population in America isn't nearly that intelligent. The vast majority of Americans don't even know how to pronounce certiorari, let alone know what it means. How can these Smarty Pantses in black robes empathize with and stand up for the American people when the magnitude of ther intellects is so disparate from those of the people they are supposed to represent?
By restricting his choices to Ivy League-educated sharp thinkers, Bush will be neglecting those people who don't know much about the law. These people need representation on the Court. You might argue that intelligence is necessary to do a Justice's job. But I say, along with Feinstein and all the diversity-lovers, that a Justice's job isn't thinking--it's relating.
The most important quality of the Supreme Court is the way in which it reflects the demographics of our great nation. I call on President Bush to nominate someone who, like millions of Americans, never went to college. Someone who doesn't know the difference between who and whom. Someone who has never read the Constitution in his or her life.
This someone will be the greatest asset the Court could have. Because when the average American brings his case to the highest court in the land (never mind that he's doing it through his intelligent lawyer), he can look up at the nine faces on the bench, and know that, amid all the brainpower in the room, at least one of them knows exactly how he's feeling right now: absolutely and profoundly clueless.
****
I was pleased to read the other day that President Bush said, in reference to his choosing a replacement for Supreme Court Justice Sandra Day O'Connor, that "diversity is one of the great strengths of this country." He couldn't be more right, and I hope he will have the courage to act on his words.
The Supreme Court Justices, as we all know, were intended by the Founding Parents-of-Unspecified-Gender to be representatives of the people who would, in the words of Senator Dianne Feinstein, understand "the problems real people have out there." Their personal characteristics and attributes come into play again and again as they decide weighty issues of civil procedure, ripeness, vicarious liability, and Commerce Clause power. It's obvious that the Justices first look to themselves and then to the people when judging cases, and not to some defined standard, as though it were written down on some yellowed piece of parchment.
That's why I'm a fervent supporter of true diversity on the Court. I'm pleased that in recent decades, Presidents have had the courage to nominate Justices who broke the mold of highly educated white men. We've expanded the panoply of Justices to include two highly educated black men and two highly educated white women.
But President Bush shouldn't stop there. Because it's so essential that the Supreme Court reflect the diversity of the nation, we now need a Justice who represents a larger cross-section of society than even the Justices we already have.
That's right. We need a stupid person on the Court.
Ever since John Jay was named the first Chief Justice, the Supreme Court has been the exclusive realm of very smart people. But most of the population in America isn't nearly that intelligent. The vast majority of Americans don't even know how to pronounce certiorari, let alone know what it means. How can these Smarty Pantses in black robes empathize with and stand up for the American people when the magnitude of ther intellects is so disparate from those of the people they are supposed to represent?
By restricting his choices to Ivy League-educated sharp thinkers, Bush will be neglecting those people who don't know much about the law. These people need representation on the Court. You might argue that intelligence is necessary to do a Justice's job. But I say, along with Feinstein and all the diversity-lovers, that a Justice's job isn't thinking--it's relating.
The most important quality of the Supreme Court is the way in which it reflects the demographics of our great nation. I call on President Bush to nominate someone who, like millions of Americans, never went to college. Someone who doesn't know the difference between who and whom. Someone who has never read the Constitution in his or her life.
This someone will be the greatest asset the Court could have. Because when the average American brings his case to the highest court in the land (never mind that he's doing it through his intelligent lawyer), he can look up at the nine faces on the bench, and know that, amid all the brainpower in the room, at least one of them knows exactly how he's feeling right now: absolutely and profoundly clueless.
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