Tuesday, October 04, 2005

The Downside of Diversity

The Supreme Court is very loosely defined in the Constitution. It is authorized, but not much information is offered regarding exactly how it is to be composed. The number of justices is unspecified—there have been as few as seven and as many as fifteen although the current quota of nine has been in place long enough to insure that will be the size for the future.

There is some mention of original jurisdiction limits and a notion of ultimate appellate authority, but it took Chief Justice John Marshall to give the Court its real power, that of judicial review. It isn’t specified in the Constitution, but since Marbury v. Madison, we’ve come to agree that the Court has the authority to declare acts of the legislature and executive as unconstitutional, creating the ultimate check in the scheme of checks and balances. The balance, of course is in the power of the President to appoint justices and the requirement of the Senate to consent to those appointments. We’re getting another opportunity to see how the process has degenerated.

You don’t have to search your daily fish-wrapper to find plenty of analysis of the President’s latest appointment, Harriet Miers. There is input from the conservative side of the house, which isn’t sure what she will be about and whether she is appropriately reactionary for their taste. There is wailing from the liberal side of the aisle that she doesn’t have a judicial record to evaluate. In a rare moment of insight, I see that Chuck Schumer said something I can agree with—he announced that “I don’t know enough.” I’ll take that as his personal recognition of a short-coming he has displayed proudly for quite a while rather than a comment on the bio of the appointee.

Yet, there is something in the background here that needs to be mentioned. It’s the “affirmative action” factor. Unintentionally we’ve created a Supreme Court Quota System which seems to be generating its own influence on the checks and balances.

When Thurgood Marshall was appointed to the Court by Lyndon Johnson, it was a moment whose time had come. The civil rights movement in the United States in the ‘60s had clearly highlighted the fact that a white court was not representative any longer. Marshall was a leader of the civil rights movement and a capable judge. He was the Jackie Robinson of the Supremes. Was he the best qualified of all available at the time? No one can say. But, it was time and it was right and it happened.

When Sandra Day O’Connor was appointed by Ronald Reagan, it was a moment whose time had come as well. For too long the court had been a male reserve. We can ask a similar question—was she the best qualified of all available at the time? And we get the same answer.

But—there’s always a but—when Marshall left the Court, it wasn’t a matter of replacing him with the best qualified. It was a given that the seat on the bench which Marshall had held was to be viewed as a black seat. An African-American on the court had become a requirement. The appointment needed to be black. And, that gave us what became the debacle of Clarence Thomas. The law of unintended consequences intervened and the demand for a black replacement for the Marshall seat hadn’t considered the possibility of a black conservative. The left-leaning Senate of the time was faced with a conundrum—how to oppose a member of a core constituency who just happened to have the wrong political ideology. The result was the innuendo laced campaign to discredit Thomas. Did Thomas sexually harass Anita Hill? I don’t think we will ever know for sure. What we do know is that his tenure on the court has been curiously quiet, largely as a result of the character assassination he experienced in confirmation.

Now, as we review the run-up to the Miers appointment we witness demands for diversity on the court. Bush bucked the trend by choosing John Roberts as the O’Connor replacement. He might well have been considering the health of Chief Justice Rehnquist and hedging against the immediate need for a replacement there. But, he resisted the demand to keep the O’Connor seat as a woman’s quota.

Still, there was pressure. Even Laura Bush went on record as advising the President that a woman should be high on the options list. And, we began to hear the demands for a Hispanic justice. Is this a good thing?

When society’s evolution leads to equality for ethnic minorities and women, it is right and proper to provide increased opportunity. Marshall and O’Connor were the right appointments at the right time. But, now that we’ve opened those doors, is it good to institutionalize the percentages? In a nine member court, can we have a proportional representation of women, blacks, Hispanics, Asians, Catholics, Jews, Muslims, etc? Once the discrimination barrier has been broken, should we expand the categories and allocate reservations of seats on the Court? Clearly the answer is no. We don’t get good government by a quota system just as we don’t get good government with a discriminatory selection process. An all-white, all-male court was not appropriate, but a diversity score-card on a nine-member panel is similarly wrong.

All that being said, is Harriet Miers a good choice? From what I’ve read this morning, it looks as though she is qualified, experienced, and capable. She’s been a leader in local and national organizations ranging from City Council to state bar associations to the right hand of the President. Now, we’ll see what the Senate circus does.

Bring in the clowns.

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