Courting Diversity

The list of desired qualities in a Supreme Court candidate is pretty straightforward, at least for progressives. We want someone with a good legal resumé, a generally liberal voting record on fundamental moral questions, some imagination about the role of the law, an ability to gain the respect of colleagues. Someone relatively young. And while other liberals might disagree, I'd add: someone whose nomination makes the Court more reflective of America.

Obviously a justice's race or gender does not always play a large role in his or her decision-making process. But Supreme Court justices, like the rest of us, are shaped by their identities, at least somewhat. As Justice Ruth Bader Ginsburg said of her fellow justices when the Court was considering a case involving a 13-year-old girl who was strip-searched by school officials looking for drugs, "They have never been a 13-year-old girl. ... I didn't think that my colleagues, some of them, quite understood."

At the time, Ginsburg was not pleased to be the only woman on the Court. "Women belong in all places where decisions are being made," she told USA Today last year. "I don't say (the split) should be 50-50. It could be 60 percent men, 40 percent women, or the other way around. It shouldn't be that women are the exception."

For those of us who are not satisfied that today only two women and two people of color are part of the nation's most important legal body, the nominations process raises a tough question: Can we both insist that diversity matters and still express disappointment when the conversation is overly heavy in its focus on the nominee's identity?

It's been almost one year since President Barack Obama nominated Sonia Sotomayor for the Supreme Court, and her race and gender quickly came to define the debate about her. Conservatives seized on her "wise Latina" comment and criticized her "fiery temperament." Many liberals were so thrilled -- and rightfully so -- to be supporting the first woman of color to be nominated for the Court that they did not subject Sotomayor's relatively moderate judicial record to the kind of scrutiny that they otherwise would have.

So far this time around, things have been different. In April, when Justice John Paul Stevens announced his retirement, Obama's initial short list to replace him reportedly included six women and two men. And despite some speculation about the sexuality of one of the women on it, Elena Kagan, the bulk of the conversation was about the potential nominees' records on issues like civil liberties, torture, and detention.

The underlying assumption of those resistant to affirmative action is that women and people of color will catch up eventually -- we don't need to make a concerted effort to ensure they do. Maybe we're finally getting past this idea, at least when it comes to the Supreme Court. Obama's short list was woman--dominated (most likely, deliberately so), a fact that was the subject of relatively little fanfare. That's a positive sign.

It's certainly possible to prioritize diversity on the court without having the nominations debate overtaken by questions of identity. As more and more women and people of color rise to positions of power, priorities shift. Most of us could agree that a Supreme Court made up of seven white men, one woman, and one person of color -- as it stood before Sotomayor was confirmed -- was unacceptable. But as the demographics inch toward reflecting the diversity of the country, questions of the importance of identity shift, too.

Ideally, the initial list of potential nominees would skew heavily toward women and people of color, then the debate would center on their records and views. It's not that identity would fade to the background or go unacknowledged; rather, it would be taken into consideration when crafting the short list -- not made to be the most important issue when looking at a particular nominee's record.

I'm not so naive as to think this is how the Supreme Court nominations process will always proceed. But whether it's because we've learned some lessons from Sotomayor's confirmation process or because we've all had a bit more practice in talking about the role of identity, I do think we're closer today than we were even a year ago. We're conscious of a Supreme Court nominee's identity, but we no longer have to be obsessive about it.

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