"If the judiciary should diversity to reflect the population
with regard to . . . religious belief"
jsr at jsr.net
Thu Jan 4 07:46:29 PST 2007
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"
This is a very good question, as is, I think, a closely related
Insofar as we should take it seriously at all, exactly why should we?
Even leaving aside the important question of whether judges should
represent any demographic constituency and regarding them as no
from any other important officials, the desire for some sort of
parity (whether strictly or loosely proportional) is necessarily
based on a belief
in the centrality of racial/ethnic/religious/class identity that I
In fact, the more important one believes those components of identity
more difficult it becomes to represent or reflect them. Eugene points
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
think of themselves primarily as "Protestants" but as Methodists or
or Baptists (actually, more narrowly as Missouri Synod Lutherans or
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,
applies to Hispanics and Asians — can a Cuban "represent" a Mexican;
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
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
constitutional convention will have to devise ways to substitute that
for our (former?) belief that, fundamentally, our polity is made up
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