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Tuesday, July 12, 2005

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).


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.


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.


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.


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?                

Posted by Paul Horwitz on July 12, 2005 at 01:32 PM in Law and Politics | Permalink


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I'm sorry, I can't agree with you on any of that. The oath is to "administer justice without regard for person".

I am white. I am not aware that I have much (if any) ideological common ground with four white Justices on the court, while I find that I have considerably more in common with the Court's one Justice who does not share my color. What does this tell me? That race is irrelevant, and views are not. That individuals are important, and aggregate stereotypes are not.

And another thing. Quite aside from my complete antipathy to quotas and affirmative action in general, the Supreme Court is a special case. What is this idea of "represenation"? Justice Breyer does not "represent" me because he too is a white male, and he doesn't represent my views; but Justice Thomas doesn't "represent" me either, even though he and I agree on a lot of issues of constitutional interpretation. I don't WANT to be "represented" on the Supreme Court. The Court is not one of the democratic branches of government; there is no possible function which I believe the Supreme Court plays in our system of government where a "diversity criteria" - even were that in and of itself fundamentally invalid - would be relevant. Representation is Congress' job. Diversity in Congress (albeit not one enforced by quotas) is relevant and important, because the experience of different parts of the nation is certainly important in framing what the law should say. But it seems to me that a similar diversity criteria for the Court could only be relevant if you want the court to have a role in developing social policy, a role in which such diversity would be helpfull.

So I admit it - I don't get it. What is it that diversity would bring to the bench, in your view?

Posted by: Simon | Jul 14, 2005 10:42:02 PM

I think amplification(of Professor Ifill's premise about anti-Thomas sentiment) would best decribe my initial post. Had statistics about that sentiment been cited, I think it would have been a far more accurate foundation than statistics about whether or not Professor Ifill was correct or not.
While the issue statistics that were cited do carry some weight, the percentage for or against those issues change depending upon how the question is asked. This change holds true for all races. Given that this is the case, I would offer that the cited stats might lead one astray in regards to gauging African-American perception of Justice Thomas.
We cannot divorce social policy from law anymore than we can divorce our experiences from how we perceive the issues that arise in a particular case. Law is policy partly because of the consequences it has upon those who follow it and because it reflects a certain perspective of how society should be ordered. Is there anyone out there who believes that Justice Scalia's opinons aren't highly correlated to his background? The answer is yes only if one believes that judges occupy and perform(or should perform)a mechanical role in reaching decisions.
I am glad that there may not be much difference in our perspectives.
I haven't yet taken Con Law so I cannot adequately respond to the Fordice or Morales cases.

Posted by: sebastianguy99 | Jul 14, 2005 4:34:55 PM

I genuinely appreciate the last comment. I'm mostly content to let it stand as it is, as either qualification, modification, disagreement, or even rebuke. But let me note two things. First, my original post was fairly careful to disclaim any overreliance on statistics, and certainly did not want to tell the African-American community, or anyone else, what is going on in the black community. Whether or not my effort to tread modestly in this area was successful is another question. In any event, I have provided sources for statistics and counter-statistics and am content to rest on what I wrote. Also, I would qualify the statement that Justice Thomas "more often than not articulates the interests of those who are against diversity." As written, I think it is a fair statement with which one may agree or disagree. Still more accurate would be the far narrower statement that he often articulates the interests of those who are against state-ordered racial diversity. But that is not quite the same thing as saying that he fails to articulate the interests -- and especially the experiences -- of the African-American community. I suggested in my original post that he often does so, in cases like Fordice or Morales, although what he makes of these interests and experiences, either in terms of his own views on public policy or his view of his judicial role, is another matter. In any event, although there may be important differences of opinion between us, I think they are fewer and narrower than might be evident at first blush.

Posted by: Paul Horwitz | Jul 14, 2005 3:41:54 PM

May I respectfully suggest that the comments so far point to a certain cultural bias/arrgogance.It would seem that the "velvet rope" of white affluent privilege inherent throughout the legal profession is once gain in evidence.
What else explains the difficulty comprehening why African-Americans would want to see justices that reflect the mainstream and not the margins of their community? Most level-headed people would understand why that community fights to make sure that it is not defined by the small(comparatively speaking) criminal element within the community.Why is it so beyond the pale to understand then that it also shows this same normative desire when it comes to the small number of African-American jurists? I would be willing to bet that most white people wouldn't want David Duke or Matthew Hale being held out as representative of their community!
I also find it unfortunate that we see in these comments the age-old tradition of telling African-American that those outside of the community know better than they what is going on inside their community. Yes, we can look at a a few statistics and ask some questions, but we cannot procede as if those statistics are direct proof that the statements of Professor Ifill regarding how the vast majority of African-Americans view Jutice Thomas are somehow pathological and not grounded in the reality of their collective experiences.
Every human being is influenced by the totality of the circumstances of his/her experiences. It is easy to be skeptical of "diversity" when the institution in question looks just like you because when you see yourself reflected you are affirmed. When you aren't represented you want to know why.Again, there is nothing pathological about this, it is simply as it should be in a representative democracy.If the institution in question is one of power, then this desire to be represented increases.
These questions can be easily dismissed now(though not as easy as decades ago), but the demand for answers and actions will only increase as the nation heads towards a time when no one race will be a majority(according to census data predictions). I would argue that now is the time for all of us to start making a better effort to understand the perspectives of those who are different than us rather than simply sitting in judgment.
The issue of diversity on the bench then is not merely one of political correctness or white-bashing, but one of representation and the power to be included in decisions that effect their lives. Justice Thomas more often than not articulates the interests of those who are against diversity, and thus not in the best interest of African-Americans or any other minority. This is seen by minorities as nothing more than a power play dressed in black face. To African-Americans, it echoes the times when the plantation masters would pick "house slaves" that they felt were more trustworthy and sympathetic of the views of the master than their fellow slaves, even though they shared the same skin color and background as their fellow slaves. It should be noted that this sentiment is nowhere to be found in any of the above comments.

Posted by: sebastianguy99 | Jul 14, 2005 3:23:15 PM

Assuming that WaPo had the portrait story right, I think that YLS should respect his wishes and not put up his portrait. Don't get me wrong: I'd very much want a Thomas picture up there. But if the man doesn't want it. . . .

Posted by: Hillel Levin | Jul 13, 2005 2:35:32 PM

Re: the Justice Thomas portrait at Yale (or lack thereof). This Oct 04 WaPo article makes it look as though the lack of the portrait is by Thomas's choice.


Couldn't Yale commission one and display it on their own? I guess they would prefer to have a nice celebration where he appears and talks about how wonderful he thinks that YLS is, but that seems unlikely. Anyone who has heard Thomas talk about education knows that the big influence on him was his Jesuit schooling in junior high/HS and later at Holy Cross.

Posted by: anon | Jul 13, 2005 2:01:46 PM

My guess is the 10% number comes from the percent that voted for Bush (roughly). Not that this speaks at all to any of the criticisms you raise, but I think that's where it came from.

Posted by: Sean | Jul 13, 2005 1:40:21 PM


I graduated YLS in '02. I could be wrong, but I think I do recall a Justice Thomas portrait. I'll look into it.

Posted by: Hillel Levin | Jul 12, 2005 5:28:33 PM

I'm not averse to the arguments for the value of a diverse judiciary as such, and in large measure it stems precisely from a divergence of understandings as to the role and function of courts, as your comment, Simon, suggests. I tend to be a pragmatist in my views as to the judicial role and function (a helpful phrase because it means so much, and so little), and so I think there is value in bringing a wide variety of backgrounds and experiences to the judicial task of applying the law to facts. And I would agree with Ifill (and Posner, and a wide variety of others) that there is merit in seeking systemic diversity on the bench; we need a wide variety of "best qualified lawyer[s]" on the courts. I just disagree with Ifill on all kinds of other points, for the reasons laid out at extravagant length in my post.

Posted by: Paul Horwitz | Jul 12, 2005 2:24:45 PM

I agree with most of Paul H's comments.

I have to admit that I'm bewildered by the concept of their being a need for diversity on the bench. Justice Breyer, for example, sits on the Supreme Court because he is a good legal mind. I'm not quite sure how his being white is of relevance to the rulings he makes. Likewise, it seems to me that Justice Thomas' rulings, to me, do not reflect his race - they reflect his views. I tend to agree more with Justice Thomas than with Justice Breyer - does that mean my Isn't that rather the point - that the law should be colorblind?

I just do not see the need to be "represented" on the Supreme Court, and I do not see the need for representation. I see a need for responsible, qualified lawyers and Judges. If the court was a legislature, then I could see the argument; if it was there to pass on whether laws were a good idea, then I could see the argument. But the whole concept of a "diversity" place not only smacks of quotas and affirmative action but also suggests a very different understanding of the court's role to mine. The best presecription is: appoint the best-qualified lawyer to the court. If the best-qualified lawyer is white, appoint them and don't think twice. If the best-qualified lawyer is black, appoint them and don't think twice. Likewise for hispanic-american, asian-americans and so on.

Perhaps I'm missing something?

Posted by: Simon | Jul 12, 2005 2:17:00 PM

Really great post - and not just because I happen to agree with much of it. When one begins peeling back the arguments for diversity, it is often the case that the person claiming to be it's proponent really isn't interested in actual diversity of thought and/or experience, but rather simply wants another who shares their viewpoints - which of course are the only correct views.

I read a recent Justice Thomas biography (Judging Thomas) and would invite anyone who thinks that they know all they need to know about him because he is conservative and opposes affirmative action, to read it. He has lived a sometimes hard and authentic american life that is done a tremendous disservice by those who say he isn't a "real black." His expereinces with racism in the south are every bit as hurtful and shameful as many blacks of his generation: only they didn't end there, and they have come at him from both whites and blacks.
(I won't attribute it to racism as much as ideology, but Justice Thomas has been on the Supreme Court for nearly 15 years and his picture is still not up as YLS amoung the other judges and Justices that are YLS grads)

If what Ms. Ifill were truly interested in was a diversity of life experience and legal thought, she could hardly do better than Justice Thomas on either front.

Posted by: MJ | Jul 12, 2005 2:09:32 PM

Hey, I'm multiracial! President Bush, appoint me! I guarantee there won't be a fight with the Democrats... :-)

Posted by: Paul Gowder | Jul 12, 2005 2:03:17 PM

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