Saturday, May 30, 2009

Ethnic Politics and the Supreme Court

Let's face it. The controversy over Sonia Sotomayor is not solely over her remark about a "wise Latina woman." There are several pieces of evidence for this. First off, large segments of the Right made clear from the start that they would oppose Obama's nominee, no matter who he chose. Second, there were some fairly clear warnings from the start, not limited to the Right, that David Souter was a white male, and that if Obama proposed a replacement who was not white and male, it would be affirmative action run amuck.

This seems a good opportunity to discuss ethnic politics in general and its role in Supreme Court appointments in particular.

First of all, ethnic politics is not some shocking new thing that began in the Sixties and was unheard of before. Ethnic politics in the United States goes back at least to the big city Irish political machines of the 1840's and probably well before. It is a normal part of a multi-ethnic society.

Second, ethnic politics is neither the best nor the worst way to deal with a multi-ethnic society. Ethnic politics, in the sense of ensuring that each group gets its fair share of the goodies, is preferable to having the dominant group keep all the goodies to itself and refuse to share. But it is not as good as a true meritocracy in which ethnicity makes no difference. This last sentence is, after all, a significant concession for a liberal to make. I agree with conservatives that a true meritocracy without regard to identity politics,* a "color blind" society, is and should be our ultimate goal. What we don't agree about is how to achieve that goal.

Conservatives seem to assume that identity politics and meritocracy are the only two alternatives. True, the dominant groups once kept all the goodies to themselves, but that couldn't possibly be any danger now. Maybe. Maybe if we put an end to all identity politics, pure meritocracy would emerge. Or maybe white males would, after all, keep all the goodies to themselves. The number of people taking offiense at the idea of Souter's replacement not being white and male is not exactly encouraging. Maybe it is only affirmative action that stigmatizes minorities and without it dominant groups would be more accepting up newcomers. But then again, dominant groups have been resisting infiltration by upstarts since long before affirmative action ever occurred to anyone. Maybe disdaining minorities as beneficiaries of affirmative action is just the old racism in new guise.

My own view is that ethnic or identity politics, though by no means ideal, is a necessary stage in the process of getting from point A (pure white male dominance) to point B (pure meritocracy). The most obvious objection would be to ask how do we know when we gave gotten past the need for ethnic politics and arrived at a pure meritocracy. My answer is that we will know we have achieved a true color blind society and no longer need identity politics when people stop arguing about the need to get past identity politics because it has already happened without anyone noticing.

The Supreme Court is a case in point. Ethnic politics have long been at work, but in changing ways. When Louis Brandeis became the first Jew appointed to the Supreme Court in 1916, that was considered highly controversial. When Felix Frankfurter was appointed in 1938, his Jewishness was less controversial, but still considered significant. Today Justices Ginsburg Jewish and Stephen Breyer are both Jewish (and both appointed by the same president, no less) and hardly anyone even notices, let alone cares. When Irish Catholic William Brennan was appointed to the Supreme Court, his ethnicity was a factor in his selection. Brennan was only the sixth Catholic to serve on the Supreme Court, and his religion was considered controversial. Today five of the nine Justice are Catholics. Sotomayor, if confirmed, with make it six, and nobody cares. Justices Scalia and Alito are both of Italian ancestry. Time was when people would have assumed ethnic politics were at work in Scalia's appoinment and darkly hinted at Mafia ties and a second Italian on the Court would simply have been too much. Today, Scalia and Alito are both blandly labeled as white both assumed to be highly qualified (if politically controversial) candidates whose merits no one doubts.

In short, white ethnic identities have ceased to matter, and no one really noticed when it happened. When Brennan retired from the Supreme Court, no one felt the need to appoint another Irish Catholic to replace him. But Republicans, no less than Democrats, continue to respect racial and gender identity politics. It was Ronald Reagan, after all, who first promised to appoint a woman to the Supreme Court and, out of the small group of qualified women at the time, chose Sandra Day O'Connor. Significantly, when O'Connor retired, G.W. Bush's first impulse was to appoint a woman to replace her, even though there was already a second woman serving on the Court. And when Thurgood Marshall retired, the senior Bush sorted through an all-black list of candidates to choose Clarence Thomas, while making himself ridiculous by insisting that race played no part in his choice.

Perhaps the time will come when no one cares about the race of Supreme Court justices any more than anyone today cares that we have two Jews and two Italians on the Court. Perhaps some day no one will care whether a nominee is a man or woman. But until that day arrives, it is pointless to argue that we can overcome identity politics by wishing them away -- or by limiting nominees to white males.

Update: This excellent New Yorker column makes the same point. It also points out that before we had ethnic politics, we had regional politics, and they played their part in Supreme Court appointments as well.

*By identity politics I mean ethnic politics plus gender politics. For the sake of variety, I will use the two terms more or less interchangeably.

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