“Are you disappointed?” my Latino colleague tentatively asked when I called to share in the excitement of the Sotomayor moment. I knew what he meant. Not that I’m not thrilled with the nomination of Judge Sonia Sotomayor. It’s an important and historic nomination of a brilliant judge whose life story resonates deeply not only with Latinos, but also with all of us who come from humble beginnings.
But the truth is that many African Americans have not given up hope of a black Supreme Court nominee who will be more representative of the views of the vast majority of African Americans than Justice Clarence Thomas. Each new nomination and confirmation to the Supreme Court reinforces the possibility that Justice Thomas will continue to be the lone black voice on the Supreme Court for years to come. With his unrelenting hostility to affirmative action, the Voting Rights Act and seemingly every other civil rights measure, it’s as though blacks have lost the opportunity to be represented on what is perhaps the nation’s most important and influential body.
It’s a strange thing. But there is, perhaps, no other public office more bound by a rigid racial quota than the Supreme Court. For years we used to talk of a black seat, a Catholic seat, a Jewish seat and later a female seat. We’ve long abandoned the idea of allocating seats by religion. In fact, the personal religious views of Supreme Court nominees almost never comes up as a serious issue in the confirmation process, despite the possibility that religious views might affect how a justice approaches issues such as abortion and the death penalty. For example, with the addition of Judge Sotomayor, there will be five Catholics on the bench. But this merits very little comment.
We’ve gotten used to talking about the importance of more than one woman on the court. We note that women are grossly underrepresented compared to their numbers in the population and in the profession of law. Inching back up to having two women on the bench later this year, if Sotomayor is confirmed, is a source of pride. Yet somehow, no one seems to imagine that there might be more than one black Supreme Court justice.
When Justice David Souter’s resignation was first reported, newspapers and bloggers published shortlists of justices under consideration by President Obama. Other commentators and court watchers created their own wish lists. Throughout those weeks, the names of only two black lawyers appeared in the scores of news accounts printing shortlists: Gov. Deval Patrick of Massachusetts and Leah Ward Sears, chief justice of the Georgia Supreme Court. When I questioned court watchers and commentators about their apparent belief that a black justice wasn’t in the running, I routinely heard, “President Obama wouldn’t appoint a black lawyer as a justice. Not for his first nomination.” This may have represented a kind of pragmatic political assessment. But it may have also reflected a sense that nominating a black justice is no longer a priority.
The idea that Clarence Thomas is holding the one and only “black seat” on the Supreme Court feeds into the worst kind of diversity—one that is cosmetic, rather than substantive. Cosmetic diversity is satisfied by a court that “looks like America,” rather than one that actually is like America. The point of diversity on the bench, though, is to ensure that the court includes judges from diverse personal and professional experiences and viewpoints, so that the court’s deliberations are deepened and enhanced by the multiple perspectives each judge brings to the table. This should mean that there’s room at the judicial conference table for a Clarence Thomas and for a black judge whose experiences and perspectives are more representative of African Americans.
In the meantime, the addition of Judge Sotomayor and the presentation of her compelling personal story provides an important opportunity for blacks longing for a more representative black justice. Just as the presence of Justice Thurgood Marshall represented the inclusion not only of blacks, but also of Latinos and other marginalized groups in the court’s deliberations, so, too, does Judge Sotomayor’s potential addition to the court reflect an important inclusive moment in the court’s history. Like Thurgood Marshall, Judge Sotomayor has the possibility to bring a range of information to the judicial conference that will greatly enhance the court’s work. Justice Marshall didn’t just write opinions that spoke to the experiences of African Americans. His opinions in cases involving gender equality, the rights of criminal defendants, the application of the death penalty and the rights of the poor gave voice to the experiences of these groups as well. Likewise, the addition of a divorced daughter of laborers, a diabetic, a Puerto Rican New Yorker who grew up in the housing projects of the Bronx, who attended Ivy League schools and rose to become a top prosecutor, law firm partner and federal judge represents the kind of arc of experience that should resonate for so many Americans from non-privileged backgrounds, not just Latinos.
I won’t give up on the possibility that another black justice will be appointed to the Supreme Court. It’s important, if only to break the insidious imposition of a kind of maximum racial quota for black Supreme Court justices. Moreover, judging by some of the recent decisions and the questions raised at oral argument by some of the justices in civil rights cases, the Supreme Court is sorely in need of a justice who can, as Justice Marshall did, provide a real world perspective on how racism and racial disparities continue to affect the lives of racial minorities and the importance of civil rights laws in providing protection to racial minorities in the workplace, the classroom and the voting booth.
But of course, Justice Marshall had been a civil rights lawyer. Judge Sotomayor is a former prosecutor and intellectual property lawyer. It’s perhaps unrealistic to imagine that she could or should play the role Justice Marshall played on the Supreme Court.