IT'S IMPOSSIBLE NOT TO ENJOY THE IRONY...:

Diverse Opinions (Jeffrey Toobin, June 8, 2009, The New Yorker)

In making nominations to the Supreme Court, Presidents care about diversity, which is a relatively new term for an idea that is nearly as old as the Court itself. In the early days of the republic, when regional disputes were the foremost conflict of the era, nominees were generally defined by their home turfs. So 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. In the nineteenth century, as a torrent of European immigrants transformed American society, religious differences took on a new significance, and Presidents used Supreme Court appointments to recognize the new arrivals’ growing power. In 1836, Andrew Jackson made Roger B. Taney the first occupant of what became known as the Catholic seat on the Court, and that tradition carried forward intermittently for more than a century, with Edward White, Joseph McKenna, Pierce Butler, Frank Murphy, and William J. Brennan, Jr., occupying the chair. In 1916, Woodrow Wilson nominated Louis D. Brandeis, establishing the Jewish seat, which later went, with brief overlapping periods, to Benjamin N. Cardozo, Felix Frankfurter, and Abe Fortas.

With the distance of history, this evolution looks almost inevitable, but the patterns of Supreme Court nominations reflect larger struggles in American life, and many of the confirmation fights were bitter. Moreover, the Justices themselves had little success in addressing the sources of these tensions. (Regional balance on the Supreme Court didn’t prevent the Civil War, and religious diversity didn’t do much to halt anti-Catholic and anti-Semitic bigotry.) In our own era, when race and gender have defined so much of our politics, it isn’t surprising that the appointment of the first African-American, Thurgood Marshall, in 1967, and the first woman, Sandra Day O’Connor, in 1981, became landmarks in the history of both the Court and the country. Nor is it surprising that these appointments—and President Obama’s choice of Sonia Sotomayor, who if confirmed will be the first Hispanic Justice—illuminate our current ideas about diversity.

The use of biographical detail to predict or explain the course of a Supreme Court career is a tool of modest helpfulness.

...that of the 5 conservatives on the Court, two were blatant quota-hires and two were retreats to safe identity politics when Republican presidents ran into nomination difficulties.

Posted by Orrin Judd at June 2, 2009 10:37 AM