Friday, August 06, 2010
Yesterday, the US Senate confirmed Barack Obama's nomination of Elena Kagan to the US Supreme Court. The Voice of America's story on the confirmation includes this paragraph:
Democratic Senator Ben Cardin of Maryland said, "And when Elena Kagan is confirmed, she will, for the first time in America's history, be the third woman out of nine on the Supreme Court of the United States. I think that is going to give us more common sense justice in this nation, and certainly one that reflects the diversity of our country."What Cardin neglected to mention is that there are now no Protestant Christian Justices on the Court and when Kagan is sworn-in tomorrow there will be six Roman Catholics and three Jews on the Court. How is that for "diversity"? As ABC News reported last May, "At least one Protestant justice has served at all times since the Supreme Court was established in 1789." But not any more.
Although about 50% of Americans identify as Protestant Christians, they will not be represented on the US Supreme Court. Roman Catholics, who comprise about 25% of the US population, will be over-represented by a factor of 2.7, while Jews, who comprise about 1.2% of the US population, will be overrepresented by a factor of 27.8. (All percentages in this paragraph are from the 2008 American Religious Identification Survey, which is a data source for the Census Bureau's Statistical Abstract of the United States).
In light of the apparent historical over-representation of Protestants on the Court, perhaps, a fair case could be made that they should be now under-represented for a while. However, there's a big difference between having half of the country's population under-represented and not having it represented at all. If one upholds the principle of representative government then you can't be indifferent to a complete lack of representation for the largest population segment.
The fields of critical race, class, and gender theory all tell us that personal identity and cultural background matter in influencing how we view the world and function in institutional settings. Diversity was supposed to help address and counteract biases created by minority exclusion and under-representation but somewhere along the way it seems that it was decided that representing majorities or pluralities didn't matter so much.
In April, before Kagan was nominated retired Supreme Court Justice Sandra Day O'Connor, an Episcopalian, said "I think that religion should not be the basis for an appointment, but if that were the case, one would expect somewhere in the nine to see a Protestant or two." But that expectation has been dashed. Why is that? Could it have something to do with the fact that Barack Obama was hailed in some quarters as the "first Jewish president"? What about the fact that Jews, such as Ben Cardin quoted above, are over-represented in the US Senate by a factor of at least 11?
- "Elena Kagan and the Supreme Court: A Barnyard Smell in Chicago, Harvard and Washington" by James Petras
- "Elena Kagan: Jewish Ethnic Networking Eases the Path of a Liberal/Leftist to the Supreme Court" by Kevin MacDonald
- "Ambition and orthodoxy (Kagan's hero is also Dershowitz's)" by Philip Weiss