Supreme Court Nominee Miers

[Samuel Bagenstos]

It wasn't when I was clerking, but my understanding of the lore is that Justice Ginsburg was as much a mover in that as was Justice Breyer.  My understanding, through the grapevine -- and certainly not from any of the principals -- was that RBG suggested cancelling the High Holy Days arguments the year before Breyer came on the Court (her first year), and that Justice Blackmun shot it down with the argument that if sitting on Yom Kippur was good enough for Abe Fortas, there couldn't be a problem.  The Blackmun papers might shed light on this.

On a related topic, my other old boss Judge Reinhardt gave a speech in the early 1990s (before the RBG and SGB appointments) that argued, IIRC, that the President should renew the tradition of the Jewish seat, because (and I'm summarizing a lot) Jews tended to be sympatico with the humane principles of the Warren Court.  Sounds a lot like some of the arguments for Miers on the Right.

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 10/13/2005 9:06 AM >>>
It's interesting that it took until Breyer's appointment for this to happen.  

Sandy
- Sanford Levinson
(Sent from a Blackberry)

-----Original Message-----
From: Michael Zimmer <zimmermi at shu.edu>
To: Sanford Levinson <SLevinson at law.utexas.edu>
CC: Earl Maltz <emaltz at camden.rutgers.edu>; Zietlow, Rebecca E. <RZietlo at utnet.utoledo.edu>; conlawprof at lists.ucla.edu <conlawprof at lists.ucla.edu>
Sent: Thu Oct 13 08:50:44 2005
Subject: RE: Supreme Court Nominee Miers

It is since the appointment of Justice Breyer that the Court's schedule has taken account of the Jewish holidays. I assume that was at his behest and so that indicates a certain level of observance.



Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax


-----conlawprof-bounces at lists.ucla.edu wrote: -----



	To: "Earl Maltz" <emaltz at camden.rutgers.edu>, "Zietlow, Rebecca E." <RZietlo at utnet.utoledo.edu>
	From: "Sanford Levinson" <SLevinson at law.utexas.edu>
	Sent by: conlawprof-bounces at lists.ucla.edu 
	Date: 10/12/2005 10:54PM
	cc: conlawprof at lists.ucla.edu 
	Subject: RE: Supreme Court Nominee Miers
	
	Earl writes:
	
	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.
	
	sandy
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