Supreme Court Nominee Miers
7barksda at jmls.edu
Thu Oct 13 08:53:05 PDT 2005
Sandy Levinson writes:
I think the "Jewish seat," ....., was based more on identity politics .
Are you sure that the term "identity politics" really captures this dynamic - because this term suggests that the calculus is simply catering to interest groups without any other rationale or justification behind it.
Instead, I think that the clamor for group representation on the Court was inteded as a remedy for the past exclusion of these groups by 1) initial arbitrary WASPM limitations on the pool of candidates - and 2) residual biases in the selection process even when the arbitrary limitations were formally lifted. (thus even when, Jews, blacks and women could get actually get into the applicant pool - there were barriers to their selection).
Thus, the reason for the push for inclusion was not just to have a rainbow of faces - but to give people who had previously been excluded a seat at the table, so that these excluded perspectives would have a voice. Thurgood Marshall's appointment was a clear example of this dynamic
I do agree that Bush 1 with Thomas played the identity politics card by deliberately searching out a member of the group with an extremely nonrepresentive perspective to nullify any impact of the "black seat" on Supreme Court decisionmaking.
But, I'm not sure the origin of the "ethnic or gender seat" was as simple as "identity politics."
From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Wed 10/12/2005 10:54 PM
To: Earl Maltz; Zietlow, Rebecca E.
Cc: conlawprof at lists.ucla.edu
Subject: RE: Supreme Court Nominee Miers
By the way, don't I seem to remember something about a Jewish seat?
I think the "Jewish seat," which certainly existed (though,
interestingly, no one, I believe, argued that Ginsburg and Breyer were
appointed to fill such a seat), was based more on identity politics (as
is true of the "Italian seat" now occupied by Scalia or the "female seat
pioneered by O'Connor) than a belief that Brandeis et al. would bring a
"Jewish perspective" to the Court, etc. (Did Reagan believe that
O'Connor would bring a "female perspective"? Did she in fact do this?)
Perhaps the assumption was that Jews were liberals, as has been true of
the Jews appointed to the Court, but I still think it had more to do
with identity politics than an otherwise inexplicable desire by
Protestant or Catholic presidents to place people with "Jewish values"
on the Court. With Meirs, the rationale seems far less identity
politics than putting someone with a presumed set of values, derived
from and explained by (and presumably solidified by) her religious
identity. I assume, incidentally, that those Protestants who were
reassured by Roberts' strong Catholic identity were quite certain that
his Catholicism was quite different from that of Anthony Kennedy or,
even more to the point, William J. Brennan.
It's also the case, for what it is worth, that none of the "Jewish
Justices" has been notably observant. I believe it is fair to say that
all would be more easily classified as "secular Jews" than as
significantly observant ones. And, of course, even if one is more
observant than, say, Frankfurter, (e.g., keeping some of the dietary
restrictions and attending High Holiday services, as I do), that's still
not evidence for the proposition that one is a "believing Jew" in the
sense of ascribing to any set of theological postulates (I would
certainly describe myself as "secular" in this regard). I assume that
the term "secular Protestant" or "secular Catholic" simply doesn't have
the same purchase in our society as that of "secular Jew." It only
underscores that for many (including many Jews), the category "Jew" is
more an ethic one, like Scalia's Italianness, than a "religious" one in
any very deep sense.
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