More than you might think

The Bush choice of Harriet Miers for the Supreme Court is an important "diversity" choice.  But I don't just mean that, as the replacement for Sandra Day O'Connor, it was important for Bush to nominate another woman.  Miers is a modern Evangelical Christian.  If confirmed, she will be the first modern Evangelical Christian on our highest court.

Why is this important?

Because, once a new category of "diversity" is added to the court, it tends to become an unofficial "requirement" for future courts.

Look first at women.  We all heard the cries, not just from the left, but from certain right-leaning interests, that Bush nominate a woman to replace O'Connor.  Since Reagan broke the gender barrier by appointing O'Connor, the Supreme Court has had at least one woman.  Odds are, future courts will have several women at any one time.  I doubt there will ever be another time, at least in my lifetime, when we have an all-male Supreme Court.

Early last century, Justice Brandeis became the first Jew on the Supreme Court.  Since then, Presidents have been under a great deal of political pressure to ensure that there is always at least one Jew on the Supreme Court.  And indeed, since then, there have been very few, and very brief, periods of time when the court was all-Gentile.  Today, there are two Jews on the Supreme Court.  There will probably not be another time when the court is all-Gentile.

President Johnson broke the color barrier by appointing Thurgood Marshall to the court.  Upon his retirement, President Bush (41) sought out Clarence Thomas to replace him.  When Thomas retires, assuming no other black Justices have joined him on the bench, the sitting President will be under extreme pressure to ensure that another black justice replace him.

Since 1894, there has always been at least one Catholic on the Supreme Court.  Indeed, the new Chief Justice is another devout Catholic.  When Scalia and Kennedy retire, the sitting President will be pressured into ensuring that Catholics continue to have a strong representation on the bench.

Now we have Harriet Miers.  Miers is another woman, fulfilling the "obligation" to appoint another.  But she is also Evangelical.  President Bush must believe that, by breaking this new barrier, he is establishing another new "diversity quota."  In the future, the Supreme Court must always have a representative of Evangelical Faith.

Is this a good thing or a bad thing?  I'll leave that up to each individual to decide.  But it is a real thing to consider when weighing and measuring the nomination.  Many today are afraid that Miers isn't the most qualified jurist.  But when Ronald Reagan named Sandra Day O'Connor the first woman to the Supreme Court, it was said by many that she wasn't the best qualified, either.

O'Connor may not have been a great Justice.  But should we go back in history and block her nomination?  No way.  In the twenty-some years since her appointment, women have gone from being tokens and amusing oddities in the legal world to outnumbering men by a significant margin in law schools across the nation today.  Maybe the appointment of Harriet Miers will spark a revolution of a different sort: a Revolution of Faith within the legal profession.

Time will tell.  You be the judge.

Comments

[Doctor H.]

I think it's funny how today, Harry Reid is praising Miers and conservatives are appauled, when it looks to me as though, a few years from now, Miers will be the one writing the opinion that overturns Roe vs. Wade.

[torridjoe]

I highly doubt that the dominance of Christians on the Court will suffer a numeric breakdown based on sect. Catholic v Protestant is about as far as that goes, IMO.

Did you know Miers was raised a Catholic? Food for thought.

The real frontier will be the first time an agnostic or atheist is nominated. If you truly want "diversity" on the Court, that would seem an EXCELLENT choice.

[Gullyborg]

Don't forget the pagans.

Seriously... if a person is a well-qualified legal expert and happens to be Native American, or Hindu, or any other non-Judeo-Christian religion, are they unqualified for the court?

Actually, considering that Native Americans retain sovereignty but are still bound by U.S. Constitutional Law, I am surprised there hasn't been more of a movement to increase the presence of Native American lawyers on the federal courts. But that's a story for a different post. We are here for religion.

And when it comes to religion, specifically Christianity, there has been a shift in the paradigm. It used to be "Protestant v Catholic" but now I think a more apt definition is "Evangelical v Secularist."

There are lots people from all denominations who openly and outwardly place their Christian faith above all else. It doesn't matter if they are Protestant or Catholic. Likewise, there are many people affiliated with some of the more intense demoninations (for instance, Seventh Day Adventists) who are far less involved with their church than the average member of the congregation.

The nomination of Miers is certainly going to be interesting once the Senate realizes she isn't just another Protestant.

[Marty]

Justice Davis is widely believed to have been an atheist. He left the Supreme Court to run for President on a Progressive Labor Party ticket.

[Eric]

I just have one thing to say:

The US Constitution, Article VI says "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Any appointment, or confirmation, made wholly or partially on the basis of religion is constitutionally invalid. Further, arguing for religious diversity is not in keeping with constitutional principles. The questioning of Chief Justice Roberts on whether his Catholic background would impact his actions on the Court was unconstitutional.

Isn't one of the key positions of conservatives and libertarians that so-called "diversity" choices are inherently discriminatory and that it should be about the best person for the job?

[Gullyborg]

Yes, it is. But remember that Bush is not libertarian, and his branch of conservatism is "social conservatism."

If you ask me my personal opinion, it is unconstitutional for anyone to demand that the President nominate a woman, a black, a Jew, or a "cripple" (as James Watt would have said).

But since the Supreme Court has routinely ruled in favor of diversity systems, my opinion don't mean squat.

The political reality is that we have quotas on the bench, whether the Constitution is satisfied or not.

Now, by setting a standard of having at least one openly Evangelical justice, Bush just may have established his greatest (whether good or bad) legacy.