"If the judiciary should diversity to reflect the population with regard to . . . religious belief"

[John Rosenberg]

On Jan 3, 2007, at 12:16 AM, Volokh, Eugene wrote:

> Tish Faulks writes ...:
>
>> If the judiciary should diversify to reflect the population
>> with regard to race, gender, class, religious belief, etc
>> (and I would argue -- as have others -- that it should), ...
>
> 	I wonder how seriously we take the "reflect the population"
> point.

This is a very good question, as is, I think, a closely related  
question:

Insofar as we should take it seriously at all, exactly why should we?

Even leaving aside the important question of whether judges should  
"reflect" or
represent any demographic constituency and regarding them as no  
different
from any other important officials, the desire for some sort of  
demographic
parity (whether strictly or loosely proportional) is necessarily  
based on a belief
in the centrality of racial/ethnic/religious/class identity that I  
find troubling.

In fact, the more important one believes those components of identity  
are, the
more difficult it becomes to represent or reflect them. Eugene points  
out one
problem in his post:

> 	Now of course one could argue that underrepresentation of
> Protestants shouldn't matter, and overrepresentation of Jews shouldn't
> matter, because one doesn't really care about proportionality or even
> something close to proportionality, but rather at least a "critical
> mass" of each group, or proportional representation only of recently
> underrepresented minorities.  But:
>
> 	(1)  If one argues for that, it seems to me the argument can't
> quite be put in terms of "reflect the population."
> ....

But people whose religious identity is of crucial importance  
frequently don't
think of themselves primarily as "Protestants" but as Methodists or  
Lutherans
or Baptists (actually, more narrowly as Missouri Synod Lutherans or  
Southern
Baptists), etc. One need look no further than the cracks, if not  
schism, in the
Episcopal Church in the U.S. to see this point, and the same issue,  
of course,
applies to Hispanics and Asians — can a Cuban "represent" a Mexican;  
does a
Japanese-American "reflect" a Korean?

Even more troubling than the difficulty of religious and ethnic  
representation is the
question of why it is thought to be necessary. Do these various  
groups, however
specifically defined, have some sort of "right" to be represented in  
all institutions? If
so, where does that right come from and what are its contours? Is it  
because they are
so fundamentally different from those not of their group that they  
cannot be treated
fairly by non-members?

To meld two threads, if group identity is really to be made central a  
new
constitutional convention will have to devise ways to substitute that  
principle
for our (former?) belief that, fundamentally, our polity is made up  
of individuals.






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