A "Diversity Seat" on the Supreme Court?

Law professor Sherrilyn Ifill has this interesting op-ed in the Baltimore Sun today (registration may be required; I spotted this piece on How Appealing).  To do justice to her piece, let me quote a good chunk of of it, which are followed by my views (after the jump).

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SINCE THE bruising and surreal experience of Justice Clarence Thomas' nomination and confirmation to the Supreme Court in 1991, African-Americans have resigned ourselves to the reality of being "represented" on the nation's highest court by a black justice who does not share the views that most of us hold about affirmative action, the treatment of prisoners, the government's obligation toward the poor or almost any other matter at the intersection of social policy and law.

But the announcement that Justice Sandra Day O'Connor will retire, coupled with the prospect that Chief Justice William H. Rehnquist will retire shortly as well, should compel us to rethink our complacency. Not because President Bush is more likely than his father to nominate to the court a black justice who shares our views. Rather, because our acquiescence to the notion that we are now "represented" on the court plays to an archaic and manipulative form of racial representation that African-Americans must firmly reject if we are to reassert ourselves as a critical and relevant voice in American politics and law.

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What blacks and whites valued about Justice Marshall's contribution to the court was not only his race but also his unique understanding of how the law works in the lives of blacks, the poor and other marginalized groups. It was a perspective forged by his experiences as a black man and as a civil rights lawyer representing the most overlooked and disenfranchised members of society for 30 years before joining the bench.

He didn't just know about the lives of the marginalized, he was able to persuasively articulate this reality for his colleagues on the court and for all Americans. The diversity that he brought to the court was the best kind - rich in experiences, personal and professional, that enhanced the court's deliberations and decision-making.

The nomination of Justice Thomas to the seat vacated by Justice Marshall reduced the idea of diversity to its most simplistic and cosmetic terms. One need not question Justice Thomas' race or his authenticity as a black justice to recognize that describing him as "representative" of blacks, when his views reflect those of only 10 percent of the black population, is cynical and crude.

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Justice Thomas' presence on the court should not act as a bar to the appointment of another black justice to the court who can represent these views. Nor should we limit ourselves to the idea that the diversity seat can be filled only by an African-American. As Latino-American communities prepare to struggle over reported plans to nominate the first Hispanic to the court, they should demand from Mr. Bush a nominee who can speak to and from more than just the narrow constituency the president may seek to reward for its support of his candidacy and election.

Find a Latino to fill Justice Marshall's seat and really bring diversity back to the Supreme Court.

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Well, if no one's paying attention now, we can proceed, since I have a feeling I may be furthering some folks' sense of group-blogitive dissonance.  (First a "Defending Judge Bork" piece.  Now this.  What's next -- Prawfsblawg launches a "Draft Luttig" movement?)  Nevertheless, I must follow my muse where it will go.

This is a curious piece.  To begin with, it may be conventional wisdom that Justice Thomas "does not share the views that most of us [African-Americans] hold about affirmative action, the treatment of prisoners, the government's obligation toward the poor or almost any other matter at the intersection of social policy and law."  But is it true?  That is far from clear.  I don't want to engage in and endless round of data wars here, and let me acknowledge that Ifill in her scholarly writing cites data of her own.  See, e.g., Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 Wash. & Lee L. Rev. 405 (2000).  I mean only what I have written: the point is "far from clear."  Peter Schuck, for instance, writes (with some qualifications omitted here) that "more than a third of blacks and more than seventy percent of Hispanics[ ] oppose racial or ethnic preferences in hiring and promotion, and this level of opposition has risen somewhat over time."  Response to the Symposium Participants, 23 Yale L. & Pol'y Rev. 75, 78 (2005).  An LA Times poll suggested that many (though not most) non-whites supported the Bush administration's original position opposing the University of Michigan's affirmative action policy.  On criminal justice, among African-Americans polled in 2000, 41% opposed the death penalty -- but 36% supported it.  (See here.)  (There are other issues, such as distrust of the police, on which black Americans by and large do take a different view than non-black Americans.)  On welfare issues, a substantial number of black Americans polled agreed that the government has an obligation to help the poor.  At the same time, however, the data suggest that a substantial number of African-Americans also believe that the poor have become too dependent on government aid (66%, according to one Pew poll).  And a substantial number of African-Americans, while opposing a gay marriage ban amendment to the Constitution, oppose same-sex marriage or quasi-marriage rights.  (See here.)

Again, I don't want to oversell the data -- either its accuracy or its import.  But there is a distinct "what do you mean 'we,' Kemo Sabe" quality to Ifill's description of the views of the black polity.  Justice Thomas's views may be more representative than she suggests.  Certainly I have no idea where her definitive statement that Justice Thomas's views are shared by only "10 percent of the black population" comes from.  (Incidentally, does Ifill mean it when she says African-Americans -- at least those who hold her views -- have "resigned themselves" to his presence on the Court?  I doubt it; this seems like a disingenuous rhetorical flourish to me.)

But that leads to the second problem: views on public policy are not the same thing as views on what judges, let alone other governmental officials, should do about public policy issues.  We know something of Thomas's views on the role and effect of one's race in daily life, but not much; we know a little more on his views of how government should treat these issues as a matter of public policy, but not that much; and we know lots about his view of how judges should treat these issues.  But of course the three things are not the same.  It is quite possible that Justice Thomas largely "shares [black] views [as Ifill describes them]" on the still-central role of race in American life, but disagrees as to what role he, as a judge, ought to play on these matters. 

I don't think this last issue is central.  But the next one is truly a point of disagreement, or perhaps simple befuddlement.  Ifill rejects the view that black judges should be treated simplistically and mechanically as role models on the bench.  Rather, we should value their role in understanding and articulating the experience of black Americans and the intersection of race and law.  True diversity is not a matter of cosmetics, but of appointing individuals "whose personal and professional li[ves] [have] prepared [them] to powerfully and substantively [sic?] represent the experiences of the marginalized."  It is this ability to articulate the lived reality of many black Americans that Justice O'Connor spoke of when she paid tribute to Justice Marshall, whose remarks in conference she credited with teaching her much about these matters.

But, of course, this is precisely what Justice Thomas does bring to the bench (among other personal and judicial qualities, good or bad).  Anyone who knows much of his life story, past or present, knows that he can draw on precisely this deep well of experience.  I don't know whether he brings the same raconteur's skills to the conference that Marshall did.  But it is evident to me that he brings these experiences to his opinion-writing, the most public part of his job, which is often deeply personal on these issues; see, e.g., his writing in the Grutter, Morales, and Fordice cases.  If Ifill seriously means it when she says that what she means by diversity is the ability to draw on and articulate the richness of lived experience, particularly that of marginalized groups, it seems to me Thomas meets that definition.  He just doesn't happen to agree with her about what those experiences mean, or how they cash out as a matter of constitutional or statutory interpretation.

Of course, she is right to say there need not be only one "diverse" seat.  I have no problem with her saying that Latino leaders could demand a Hispanic nominee "who can speak to and from more than just the narrow constituency the president may seek to reward for its support of his candidacy and election."  But what does that mean?  Does anyone doubt that a Hispanic judge could speak meaningfully about the rich history of Latino-American life in America, and speak from experience -- while believing that this background compels him or her to champion values of self-reliance, independence, personal liberty, hostility to criminals, race blindness, gun ownership, etc.?  Or that such an individual might champion none of these values, but believe that his or her judicial role leads to many of these results?  Would Ifill be happy with such a nominee?  (For that matter, who would she have preferred in 1991 -- a judge with Thomas's background and views, or an African-American judge with liberal views and a background distinctly unrepresentative of many black Americans?)

It seems to me that what all this seems to come down to, in the end, and despite her efforts in her longer writing to describe her views on diversity as more nuanced, is this: 1) The old view that Clarence Thomas is the wrong black -- that he's "not one of us."  I've always found this view offensive and, because of the distinction between background and actual policy prescriptions, unduly narrow. 2) The non-starter view that President Bush should appoint a liberal -- preferably one from a diverse background, but I suspect she'd settle for a Boston Brahmin if she had to -- to fill O'Connor's seat, although here buttressed by a facially plausible but ultimately unpersuasive attempt to base that view on a racial footing.  Since this just won't happen (although Bush might nominate a pragmatist or moderate), and since it's pretty clear that Ifill thinks that the right diverse nominee will never be a diverse right nominee, so to speak, I am left wondering what the point of the op-ed really was.  I can understand why people make far-fetched arguments in law reviews: for scholarship's sake and, of course, for the money.  But since her argument is at bottom political, and since it has zero chance of succeeding, what's the point?