January 27, 2022

White people and men have always been represented on the Supreme Court out of proportion to their portion of the American population.

If Biden keeps his pledge and nominates a black woman, and if she is confirmed, then, for the first time, the percentage of black people on the Court (22.2%) will exceed the percentage in the population (12.1%).

Women will still be underrepresented in proportion to the population — 44.4%, instead of 50.5%.

Does 22.2% seem like too much representation for black people on the Court? Consider that there has never been even one Asian American or a Native American nominated to the Supreme Court. But also consider that many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all. 

Look how clearly Thurgood Marshall stated that position as he vacated the seat Thomas took (scroll to 2:30):

130 comments:

rehajm said...

Wolfram Alpha doesn’t convert race to competence so the units must be wrong.

Blue crabs in Space said...

Better question then is, as 1.8% of the population why was 1/3 of the Supreme Court bench Jewish for so long, in the form of Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan?

rhhardin said...

They're not supposed to represent their group.

But that's systems, a male concern: you want stable systems that don't fly apart; today it's feelings.

If we get more women, presumably now it ought to mean more feelings, anyway if they're representing women.

Ann Althouse said...

@Blue crabs

Catholics are also way overrepresented.

tim maguire said...

If the Supreme Court is to reflect the skin complexion and anatomy of America, then it needs to be expanded to a minimum of 200 justices.

Ann Althouse said...

@rh

Why is what people are "supposed to" do a male concern? Seems especially Karenish. Why isn't it male to observe what people actually do in practice and make judgments that attend to reality rather than to expect human animals to adhere to an abstract principle? You're giving science to the female side. Check your calculations.

sdharms said...

and how many of them grew up west of the Mississippi? or went to a state college?

Blue crabs in Space said...

@Ann A.

That's quite true also. Personally I'm not too concerned with either, and I imagine in a couple generations both those groups might not be represented much at all given cultural swings, especially attached to faith.

Mostly I just find the politics of diversity quotas fascinating, and often hopelessly inconsistent.

rehajm said...

Harvard and Yale seem overrepresented but that’s just me. And the problem…

Gospace said...

If you're using actual facts following the actual real words of the Constitution of the United States of America while judging, not penumbras and emanations, not your feelz and stuff, who cares what color, race, sex, religion, or anything else you are?

And there's the problem. The wise Latina amply demonstrated she's fact ignorant when the Supreme Court issued it's latest covid rulings. For that- she should be removed from the court.

lgv said...

Why do we always match race by general population? How about lawyers, or specific types of lawyers? It is the major flaw of racial quotas. We would have to racially stratify every occupation in order to achieve perfect racial profiles, e.g. half of NBA/NFL must be white. If not, and certain occupations are allowed to be overrepresented, then it becomes impossible for other occupations to match the general population. The math doesn't work when you don't consider the lesser population to choose from, e.g. college graduates with STEM degrees.

gilbar said...

Clarence Thomas, because he is conservative, doesn't represent black people at all.

If You don't vote for Jo Biden.... Then YOU AIN'T BLACK!
If You don't support the left wing of the democrat party.... THEN YOU AIN'T A HUMAN BEING!

Ann Althouse said...

There's also a lack of geographic diversity. There are 19 states that have never grown a Supreme Court justice.

rhhardin said...

"supposed to" is part of a system structure. The judicial review of e.g. whether laws are permitted and whether they're interpreted correctly, as a third branch of government. The idea is get even the wrong people to do the right thing.

A woman comes along and says, no, in this case what the law ought to be is so and so, and the structure disappears. She ought to be in the legislature and make her case there.

Men are interested in systems and abstract from feelings to do it. Women are interested in exceptions and abstract from systems.

Feelings are just what you want in a neighborhood but not in a system of government. The female talent for tact and exception is not what you want universally, though women seem to think that it is. The government collapses.

Ann Althouse said...

@rh

I see that you feel quite deeply that men will do what they're supposed to do. Lots of people are "interested in" doing what they are supposed to. Which ones do you feel actually do it? Have you seen the research on judicial behavior? Are you "interested in" it? What do you know about whether what people are "interested in" is based on reason or feeling or, indeed, whether reason has a necessary component of feeling? You seem overwhelmed by your feelings on this subject. It's actually quite ludicrous.

Sally327 said...

and how many of them grew up west of the Mississippi? or went to a state college?

I was thinking something similar, that anyone who gets to the point even of being considered for the Supreme Court represents a very narrow subset of the general population, one that isn't defined by race or ethnicity. Most of them never even really practiced, at least not after the first few years of their careers.

As to percentages, we could become even more refined, get a DNA analysis and have genetic testing to see what the breakdown for each person is. Use the science, get this right! Or does that cause a problem with self-identifiers?

rhhardin said...

Men get a dopamine hit from figuring out what a system will do. They like to nail stuff down. That's feelings in a way but it's not feelings about people.

In a correctly designed system the system doesn't collapse if the wrong people run it. Judges behave badly but it doesn't collapse the system. People work around it because judges are acting badly. If it's seen as a good to act badly, the system collapses.

The male fault is skepticism. They need to nail stuff down. The corresponding female fault is foolishness. Tact doesn't work for everything.

rhhardin said...

Richard Epstein has a lot on Supreme Court opinions that completely fucked things up. He knows when somebody, usually a man, is acting badly.

gilbar said...

Althouse points out,
That rhhardin is, a quintessential karen; he's Always Demanding to see the manager

he seems overwhelmed by his feelings on this subject. It's actually quite ludicrous.

The weird thing is: When rh isn't tilting at windmills, he often posts interesting stuff
Usually he just tilts at windmills though

Left Bank of the Charles said...

Four women out of nine justices would be 44.4%, not 40%. How could you miss that math error, rhhardin? Did your feelings get in the way? Would your need for system structure be satisfied if the black woman nominated were the former patent attorney Tiffany Cunningham?

rhhardin said...

If you're actually interested, Vicki Hearne is a virtuoso on how men think, which is to say she's able to read them correctly, like Camille Pagila is a virtuoso on sexual orientations. My theory is actually hers, as explained in Beastly Behaviors, a chapter in Bandit. What is it with men and horses, she wonders, and also women and chess and math, intellectual fields.

Somewhat combined with a man's idea on feelings and structure being opposites - each breaks the other, whcih you can find in Derrida as force and structure.

Leland said...

also consider that many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all.

I consider exactly that, which is why I don't care at all about judging people by appearance.

doctrev said...

It's very interesting that we start with the provocative notion that "white men" have been overrepresented on the Supreme Court- which stands to reason, given that white men were the only possible citizens of the USA at the founding and for decades afterwards.

It's more interesting that all discussion abruptly stops the minute someone suggests that a third of the justices belong to a particularly tiny slice of the "white" population. There are all sorts of discussions that could be had from such a standpoint. Starting from the notion that ethnically Japanese and Indian Americans are so obviously inferior to American Jews, which has implications for the broader Democrat coalition, and moving onto exactly how so many Jews gained that influence. Catholics are over-represented (with the same goal of preventing commonly held Protestant views from being the majority on the Court), but their scholarship isn't an order of magnitude beneath what the Jews do.

Unless, of course, we're suddenly not interested in exactly who is over-represented anymore.

michaele said...

Couldn't help but be struck by how much energy and vitality the press corps had. They weren't raucous, rude or out of control but there was a lively engagement on their part in the exchanges with Justice Marshall. Nowadays, they stand up, and ask their questions like they are auditioning to be funeral undertakers.

hawkeyedjb said...

"The wise Latina amply demonstrated she's fact ignorant..."

She "represents" Latinas, women, and ignorant people. That's three groups covered right there.

iowan2 said...

Catholics are also way over represented.

Or is it the fact that the character morals, faith and work ethic instilled by Catholic culture selects out for exceptional judges?

This is the one of Insty's rules. Markers of success, ie, college education, should not be the goal. But the character attributes that lead to college educated, should be the goal. Home owners are good people. But giving everyone a house, does not instill the markers in those people to magically instill the character traits that are required to be successful home owners.

So we are not selecting from a pool of Catholics, But the pool we are selecting from; smart, driven, thoughtful, temperament, humility, is over represented with Catholics.

That's why picking a Black woman, is stupid. You reduce the pool of exceptional candidates. What a stupid concept. And yet some think it should drive the entirety of our lives.

hawkeyedjb said...

Put abortion back in the legislative sphere and the caterwauling about Supreme Court nominees would quiet down. You can fill the court with your little tokens and appease ethnic groups all day long.

Kevin said...

Accurate percentages of representation is just another form of civility bullshit.

exhelodrvr1 said...

What about the extreme overrepresentation from Ivy League schools?

rhhardin said...

Vicki Hearne has the correct mockery of men, if you want to learn how to do it. She criticizes Derrida not for being obscure - she's able to read him fine - but for having an incorrect theory of dogs.

Mistakes with things that follow from them are tricky things, she says mildly. She understands the structure and points out a slight problem.

Or nice literary observations, like about Wittgenstein saying that if a lion could talk, we wouldn't be able to understand him, that perhaps Wittgenstein's lion is actually himself.

A talent worth a woman's picking it up, if they want to improve the world.

Mike (MJB Wolf) said...

“Does 22.2% seem like too much representation for black people on the Court?” is the kind of question that has no good answer. Is the judge being promoted to Justice a fair and reasonable jurist? That’s what we need to know.

DanTheMan said...

Isn't the demand that the new justice be black, or Asian, or Latino... isn't that the definition of racism?

"My racism is OK, but your racism is worse than Hitler!"

wendybar said...

I can't believe that in this day and age, we are picking people based on the color of their skin and not their qualifications. Seems RACIST/SEXIST to me.

BillieBob Thorton said...

What happened to most qualified for the position?
Too racist, sexist, some other ist?
No wonder the country is so screwed up.

Whiskeybum said...

As has been noted, Supreme Court justices are not supposed to be selected to 'represent' classes of people, they are supposed to be selected to interpret law. The group of people that are selected to 'represent' are members of Congress. (And they are there to represent people's views in the making of laws, not to represent what color of skin or sex organs their constituents have.) Can demands for 'representation of sexual orientation' be far behind for Progressives regarding SC justices? These are the traits that Progressives are bound and determined to see on the SC instead of pressing for demonstrated excellence in jurisprudence .

rhhardin said...

A gay baseball league was in the news a few years ago for banning players for being straight, or too many of them being straight. You had to prove you were gay.

It's less nonsensical that it looked. If you have straight players, you draw from a much larger population than just gay players, and the best of the larger group is in the normal course of things going to be a lot better than from the smaller group.

So if you're going to have a gay league with gays in it, you have to restrict straights if you want a chance of winning.

You don't want a supreme court that's too good.

Big Mike said...

I read the post and this thread and I want to vomit. The Civil Rights movement was a waste of time and effort and lives if we’re going to get into a quota system based on skin color, sex, and ethnicity.

Dave Begley said...

"But also consider that many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all." That was my point I made in a comment the other day. Not that anyone is keeping track.

I actually favor having a Black woman on the court. And there is no such thing as "the most qualified." Lots of people could do the Supreme Court job. Heck, if I had four law clerks I could do the job.

Jersey Fled said...

Here's an interesting tidbit.

From Wikipedia:

Stanley Forman Reed (December 31, 1884 – April 2, 1980) was a noted American attorney who served as United States Solicitor General from 1935 to 1938 and as an Associate Justice of the U.S. Supreme Court from 1938 to 1957. Reed attended law school but did not graduate, making him the last serving Justice who did not have a law degree.

Money Manger said...

Once Biden gets his nominee confirmed, it won’t be the conservatives vs. the progressives. It will be the boys against the girls.

Breezy said...

Would an exceptional jurist rather be known for their exceptional jurist skills, or for the fact that they were the first person of immutable characteristics that attained a nomination or place on the highest court? Does being the first of those make you more special in the arc of history? Or do your jurist decisions do so?

Saint Croix said...

If you want to make the Supreme Court "representative" then open it open to democracy, popular votes, and majority rule. Otherwise cut the horseshit.

How many poor people are on the Supreme Court?

How many children are on the Supreme Court?

How many single moms are on the Supreme Court?

The Supreme Court is way overrepresented by ancient old farts who really should retire.

I could do this all day.

mikee said...

Why is the denominator in the equation for diverse representation today's entire US population, versus Supreme Court Justices since our founding as a nation? Most of the US population is and has been effectively disqualified from appointment to the US Supreme Court on the basis of lack of knowledge of the law and judicial inexperience.

Comparing skin color is a calculation fatuous at best and purposefully malfeasant at least.



Saint Croix said...

But also consider that many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all.

So if you were a school teacher you would pull him aside and say, "Quit acting white, Clarence."

What kind of racist, fucked up school teacher would you be if you did that?

Note that under this incredibly divisive, racist, humanity-hating doctrine, race isn't even considered a biological reality. Clarence Thomas is way darker than his critics. So you have some paler person saying, "You're not black! You're not black!" Dr. Seuss just rolled over in his grave. And threw up.

Saint Croix said...

But also consider that many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all.

There are 9 people on the Supreme Court and you single out the black guy for discrimination and abuse?

Why don't we pull out some of these honkies and tell them to straighten up and fly white?

Or is there a reason that this is a deeply offensive and ugly thing to say to a human being?

rehajm said...

When you Clintonparse the promise it’s clear they left themselves plenty of wiggle room by not mandating how black she needs to be…

mikee said...

A dark skinned Hispanic/Asian of the female persuasion would be a grand slam, then. And if she were homosexual, an illegal immigrant, and thinking of transitioning, OMG, swoon!

Temujin said...

Imagine applying this quota of race as a percentage of the population to anything else. Say the NBA. The NHL. The medical field (oops...already happening to med schools). Pilots on commercial aircraft. Government administrators and politicians (oops, that train has left the station). Education (again- oops). Restaurant chefs. Lawyers defending your life. Tech engineers creating new software to change the world. Surgeons doing minute surgery inside of your body.

Why would we even engage in any discussion of quotas when it comes to holding up the very fabric of our society- our laws? Do the laws read differently to a man or a woman? A black or white or Asian person? If they do, then what is the law? What is it's purpose if it is this malleable thing that can be moved and stretched by clever people with specific goals in mind? I've never understood that. I think Justice Marshall knew this. I suspect the other Justices do as well, with the exception of Justice Sotomayor who, to me sounds more like an activist with a cause than a jurist.

We're degrading the Supreme Court, just as we've degraded our legislative and executive branches, by using collectivism in our selection process. This is how you get a Kamala Harris one breath away from the Presidency. We're diluting the quality of the Court and our own protections and rights when we play quota with our laws.

tim in vermont said...

Joe Biden@JoeBiden United States government official · Jun 28, 2018
I wish this President would engage in conversations and nominate a consensus candidate. That’s what we’ve done in the past. That’s what America needs and deserves. He won’t.


You should read his whole thread, it gets better. With a 50-50 Senate he will go hard left, is my prediction, his own forgotten words notwithstanding.

tim in vermont said...

It's "wise Latinx" to you, Bub.

Caroline said...

It’s heartening to see so many commenters express their disgust with our embrace of tribalism.

Browndog said...

It has always been my contention that many, if not most Americans subconsciously believe blacks are at least 51% of the population, oppressed by the white minority.

Film, television, advertising, music, sports. Powerful mediums.

What's emanating from your penumbra said...

Thank you for this post which demonstrates so clearly what a fraud has been and continues to be perpetrated on us by the advocates of matching group make up to the make up of society.

The only shortfall that matters is the one that the race and sex hustlers push. The over-representations that they like, eh, let's not worry about that.

Where does it say that race and sex are the only aspects of society that the court (or any other group) should match? Nowhere. Except in the assertions of hustlers.

If the hustlers don't like the politics of a particular person, they argue to exclude them from the count. If Clarence Thomas had Elena Kagan's politics, he would count. But then if it's about who "represents" the interest of blacks, shouldn't she count toward the black quota? Of course not -- let me remind you that it's about skin color.

Notwithstanding what AA asserts, Thurgood Marshall was even more clear about how wrong this idea is, but let's not focus on that.

And who gave the hustlers the authority to say who "represents" the interests of certain groups? Clarence Thomas is an Uncle Tom, you guys! Just ask the hustlers.


In the end it's revealed that we're sharing the country with a bunch of Al Sharptons. Like Al Sharpton, they have no shame, so they will never admit that they are simply advocating primarily for outcomes in the court's decisions and secondarily the right to tell us who can be on the court. Frauds and race baiting hustlers across the board. Welcome to the Democrat party.

Achilles said...

gilbar said...

Althouse points out,
That rhhardin is, a quintessential karen; he's Always Demanding to see the manager

he seems overwhelmed by his feelings on this subject. It's actually quite ludicrous.

The weird thing is: When rh isn't tilting at windmills, he often posts interesting stuff
Usually he just tilts at windmills though



rh is correct in his tactless way and makes things absolute based on a binary representation of gender.

You and Ann are just throwing tantrums about it.

It is of course based on a distribution and men are slightly shifted towards systems and women are slightly shifted towards emotions and exceptions. This expresses itself on the margins.

But it has to be pointed out that you threw a hissy fit over his post too and resorted to the same kind of whiny crap Ann does when her paradigm is challenged. It happens to men as well as women.

Andrew said...

I have to admit, I enjoyed Thurgood Marshall's annoyance as he answered these questions. I don't agree with his perspective, but he clearly didn't suffer fools gladly. And these journalists were typical hacks and fools.

pdug said...

I always thought Learned Hand sounded like he was a Native American. but I guess he wasnt SCOTUS anyway

What's emanating from your penumbra said...

If you see the discrimination oozing out of the Democrats, and it reminds you that Democrats enslaved blacks, then created the KKK, then created Jim Crow, then opposed civil rights at a higher rate than Republicans, then created welfare dependency and undermined the family unit, then told blacks they can never get ahead without special favors that only Democrats can dole out, you might ask yourselves what the fuck is wrong with these people that after hundreds of years they still don't get it. Eventually you might come to the conclusion that it's all about their own power.

Browndog said...

Having vivid memories of the 60's race riots, I'm astonished we even talk about skin color today, let alone prioritize it. People talk about it like it's totally normal.

The evolution of the American mind is a huge disappointment.

bentoak said...

There was an article in the NYT earlier this month about Zora Neale Hurston and new book of her essays that's out. I was surprised to learn that she was politically conservative. She was skeptical of the New Deal, for example, believing it to be 'government overreach.' She also felt black Americans should use the opportunities they have rather than complaining about society, which is pretty much good advice for anyone. I've seen how Clarence Thomas gets trashed by the left as not being representative, but I suspect that conservative views are more prevalent among black Americans that we are led to believe.

farmgirl said...

I watched the clip and I teared up. I know nothing about this man, but I love him! Maybe I shouldn’t? He’s most likely not my politics- but, didn’t he seem sharp as a tack, except toward the end- when he was obviously tiring? He had such integrity- knowing what words belong in the public square out loud- and when discretion was called for.

No one knows the definition of discretion in this age. People mine the internet for dirt, let alone that blockchain talk that I can’t wrap my head around!! They are intent on destruction of character- and pieces of paper: degrees, awards &$$ mean more than good character. This man seemed a gem.

Now we have boot lickers and ass kissers(or vicey versa, as Tigger might say) in the press corps, no diversity of thought allowed. And, eh- maybe at one time men were able to be counted on to stand firm and hold strong against the emotional exceptions better than women- outliers not counting- but, this age is a new age and doesn’t hold in esteem the moral grounds of our forefathers any longer. I believe this.

I also believe this Justice- Would be red-pulled in an ultrasounded heartbeat if on the court today.

mccullough said...

Harvard and Yale are over-represented.

Joe Smith said...

Where are the Asians?

No private employer could legally announce that they are only looking for XYZ to fill a vacancy.

The last time I checked, that was blatant discrimination.

But as a white guy I'm used to it...have seen it throughout my career.

Wince said...

How come there are no photos of Biden sniffing a black woman's hair?

Jersey Fled said...

The Babylon Bee proposes that we replace the Supreme Court with the ladies from The View.

In a related note, Facebook continues to claim that the Bee is not satire.

Incidentally, has anyone noticed that the women of The View are all females?

Achilles said...

But also consider that many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all. Look how clearly Thurgood Marshall stated that position as he vacated the seat Thomas took (scroll to 2:30):

Thurgood Marshall is a racist and really a terrible person who did horrible things to black people by trying to force them into support of an ideological movement.

The KKK had the same motives as Marshall had.

All statues to him should be torn down.

All schools named after him should be renamed.

khematite said...

Blogger Ann Althouse said...
There's also a lack of geographic diversity. There are 19 states that have never grown a Supreme Court justice.


But from the beginning, presidents seemed to give considerable weight to regional diversity (Northeast, Midwest, South, and West), often filling Supreme Court vacancies with nominees from the same part of the country as the departed justice.

That seems to have completely disappeared in the past few decades. The peak of geographic unconcern was reached not long ago when each NYC borough (except for Staten Island) had its own Supreme Court justice. Kagan from Manhattan, Sotomayor from the Bronx, Ginsburg from Brooklyn, and Scalia from Queens.

farmgirl said...

I would disable spellcheck if I didn’t rely on it more than it annoyed me:

eh = rh
Red-pulled = Red-pilled

Conrad said...

"It has always been my contention that many, if not most Americans subconsciously believe blacks are at least 51% of the population, oppressed by the white minority."

I believe this phenomenon does actually exist among a great many African Americans. Blacks tend to live in places where there are a lot of other blacks. As a consequence of growing up and living in mostly "black" areas, many of them are under the impression that the overall U.S. population is around half black.

farmgirl said...

… Caitlin Jenner should be the new Conservative view…

Conrad said...

Nobody has mentioned the most significant example of lopsided representation on the court: Conservative-leaning justices outnumber lefties two to one. That ratio is certainly not reflective of the legal professional as a whole, or the general population. But that's just how it goes, and it's mitigated somewhat by the fact that conservative justices, almost by definition, are far less results-oriented than the lefties.

iowan2 said...

Virginia got their fist female Lt.Governor. She is Black.

For some reason, being the First Black Female Lt. Governor is a non-event. Why's that?

(I know why, but just pointing out how the leftist media never publish anything without pushing the leftist narrative. We never get news, only narrative)

Levi Starks said...

The Construction guarantees equal protection to individuals, not classes.

rcocean said...

Look at how many Judges went to the Ivy League, either law school or college.

Harvard - Roberts, Breyer, Kagan, Gorsuch,
Yale - Kavanaugh, Thomas, Alioto, Sotomayor

The only exception is ACB who got her law degree from Notre Dame.

This is insane. Eight judges from TWO colleges. One of trump's problem's is he LOVED Ivy League grads. I'm amazed he nominated ACB.

rcocean said...

The Democrats are the real racists.

Never works. Never.

M Jordan said...

Republicans should demand a trans-woman. As I’ve said before on these pages, we conservatives should resist the obnoxious changes progressives foist on us the, once encoded into law, employ them. The left says trans-women are real women … test their sincerity.

Trans-woman for the SC. Or you’re a bigot!

Sebastian said...

Talking about SCOTUS in terms of "representation" shows the rule of law is a charade.

Of course, race is beside the point. Progs want results. As Marshall made clear: can't have the wrong Negro. Law has nothing to do with it.

If we think of SCOTUS as requiring extraordinary talent, then the population that matters is top-tier lawyers--super high IQ plus top scores in law school. What does that population look like, race-wise?

rcocean said...

Funny how these MSM always avoid the "J word" when talking about "over representation" and never discuss why all our Judges seem to go to Yale or Harvard. Or bring up the fact that we have almost no White Protestants on the court despite being the biggest demographic.

And given the SCOTUS isn't really about interpeting the constitution but about politics, why not just put Politicans on SCOTUS? That's what we used to do. Taft was Chief Justice, Hugo Black was a Senator, Douglas was considered as a VP in '44 and '48. Chase had been Governor of a State, etc.

Blackumn got put on the bench because Ike wanted a Catholic - he was running for reelection.

rcocean said...

The real problem with Scotus process is the RINO's like Romney, Collins, Lisa Murkey, etc.
This characters CLAIM to be moderates, but they fight like hell against any real conservative justice, and even go into a Hamlet act over a wimp like Kavanaugh. But when the D's nominate some hardcore Lefty, they vote for them.

Why don't the R's fight and force the D's to use all their votes to push through an extreme lefists? Lets see Joe manchin and Siema vote for a hardcore leftist with the R's giving them cover. And if they can't get the votes, then force Biden to nominate the equivilent of a Roberts.

stlcdr said...

What is the problem that these type of nominations are trying to solve?

Michael K said...

An update on Biden and black women judges.

then-Sen. Biden’s opposition to and multiple filibusters of the nomination of Janice Rogers Brown to the federal bench by then-President George W. Bush in 2003 and 2005 and remarked that “race and gender, they only count if you’re thought to be a committed judicial activist, judicial leftist.”

Maybe that was before he got senile. The Democrats did not want Bush to appoint a black female, the first, to the Court

GRW3 said...

I don't care who sits on the bench as long as they follow the rule of law, that is how they are written and not how the justice would like them to be, and sticks to the Constitution as written.

Spiros said...

How exciting for Biden to finally fulfill one of his promises to the American people! A Black female Supreme Court justice! The Supreme Court will be more legitimate because, without minorities, the Court's rulings don't deserve our respect or our obedience! Nice stuff! And what about the Democratic Party's other promises? Remember this bullsh*t?

1. Pack the Court with additional members
2. End life tenure or radically change it
3. Impeach Kavanaugh (the "rapist") and, maybe, Thomas as well (also a "rapist")
4. To severely limit the Court's appellate jurisdiction (maybe even its "original" jurisdiction since the Constitution is a racist, White supremacist doctrine).

I hope Biden's pick goes down in flames. The Kavanaugh confirmation was hilarious. I think this one is going to be worse (especially if Biden's nominee has an active social media presence).

Real American said...

The Ivy League is overrepresented on the Court. So are Catholics. So are spinsters. So are mentally challenged Latinas. We could do this all day.

The Court is not a representative body and it is not meant to be. If Joe Biden thinks putting a black woman on the court is good politics then he should do that, but to openly commit to using race as the decisive factor is bad politics. That shows how shallow this type of identity-based thinking is - it leads to bad decision-making. We passed civil rights laws because we don't believe race should be a factor in hiring (for example) as one's color is irrelevant to the issue of competence and qualifications. It is also pretty evil.

Andy said...

If they where all clones of justice Thomas I would be fine with blacks being 100% of the court.

TheDopeFromHope said...

How about lesbians? (Dare we talk about that?!) How many are on the Supreme Court now (if any!) and what is the percentage of lesbians in the general population?

rcocean said...

Why shouldn't the SCOTUS be representative. I don't see any reason why it shouldn't be. It's a political body and it rules based on politics.

All this "They are a wise objective consitutional scholars reading the sacred text to reach their decsions"

This is just childish bullshit. Who belives it? Conservatives! LOL. THe libeal/Left knows its a political body and acts accordingly.

Wa St Blogger said...

I am very bothered by the idea that the Supreme court's job is to redress grievances. The press in the interview with Justice Marshall talked about his legacy of civil rights as if they expected him to fix injustice by fiat. The problem with using the courts to address political problems is that you then need to advocate political people for the job, hence all the sturm and drang each time we have a new justice. The redress of wrongs should be done at the congressional level where people CAN get representatives that match the demographics. The courts should only worry about if the law is constitutional or if it is correctly applied. That will seem like the courts will rule for injustice at times, but the remedy is for congress to legislate correct laws, not for the courts to legislate. (I know, I am breaking new conception ground here, aren't I?)

Ceciliahere said...

Black people are over-represented in many ways…TV sitcoms, commercials, music, professional sports, criminals in and and out of prisons. Most people in this country think that Blacks make up 50% of the population and that makes sense if you take into account above.

robother said...

There is a slippery use of the term "representation" going on here. To say women (or some other identity group) are underrepresented on SCOTUS sounds like a simple arithmetic proposition, invoking (ala Griggs) intentional discrimination.

But Marshall gives away the game, when he says that Clarence Thomas does not represent blacks. (We can expect the same notion of representation to be applied to Amy Barret if she joins a majority to strike down Roe v. Wade.) This is representation in the very political sense of the term. The only true representative of an identity group is a person who sees the world through the prism of her identity, and who does justice by representing her group's interests, uninhibited by white man's notions of neutral principles of judicial interpretation or law (which are after all the very essence of systemic racism, sexism, heteronormativity, etc.)

Ann Althouse said...

"Four women out of nine justices would be 44.4%, not 40%."

Good point. One more reason to pack the Court... up to 10. Make it easier to do the percentages.

I've fixed it on the front page.

Ann Althouse said...

"I have to admit, I enjoyed Thurgood Marshall's annoyance as he answered these questions. I don't agree with his perspective, but he clearly didn't suffer fools gladly. And these journalists were typical hacks and fools."

Unfortunately, he was very close to death. I think he felt too bad to apply a filter.

Watch the whole thing. Around 6:00 he's asked to share medical information — what's wrong with him:

"What's wrong with me? I'm old! I'm getting old and coming apart." The crowd laughs but he doesn't laugh, he just looks around like he's thinking: Don't you understand that I'm dying!

Gospace said...

Temujin said...
Imagine applying this quota of race as a percentage of the population to anything else. Say the NBA. The NHL. The medical field (oops...already happening to med schools). Pilots on commercial aircraft. Government administrators and politicians (oops, that train has left the station). Education (again- oops). Restaurant chefs. Lawyers defending your life. Tech engineers creating new software to change the world. Surgeons doing minute surgery inside of your body.


Owners and employees of Chinese restaurants.
Owners and employees of Italian pizzerias...
Owners and employees of Greek restaurants...
and so on and so forth.

I still don't see any female garbage collectors out in the early morning. They're severely underrepresented there. But there is a breakthrough locally in one field of female underemployment. My oil delivery guy is now an oil delivery gal. Saw her just yesterday. She appreciated that I plowed a path to gate, dug it out, then another path to the oil fill line. Apparently many don't think of that. That's a pretty heavy hose they drag. If I had built the house I would have located the oil tank closer to the street.

Hammond X. Gritzkofe said...

"...many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all."

Can people really be that stone stupid? Can we get the "white" justices who do not represent me removed and replaced?

tommyesq said...

Where are the Asians?

Given that the majority of Justices historically have come from one of only 3 law schools - Harvard, Yale and Columbia - and those schools systematically discriminate against Asians (the Harvard admissions lawsuit is not being defended on the grounds that Harvard does not discriminate against Asians, but rather on the grounds that Harvard is entitled to discriminate against Asians), it seems like the Asians are effectively filtered out from consideration by our fine educational system.

What's emanating from your penumbra said...

"But there is a breakthrough locally in one field of female underemployment. My oil delivery guy is now an oil delivery gal."

My well pump went out and I needed to pull up 200' feet of pipe to replace it. The woman that came out to do it was great, as was the #2 guy that assisted her. Cowgirls are tough as shit.

What's emanating from your penumbra said...

"The Democrats are the real racists.

Never works. Never."

I don't know what you mean by "works." There is truth and there is revisionist history.

And what is it about hispanics moving away from the Democrats, not to mention the walk away movement in general, that makes you think people can't see through race hustlers?

Rabel said...

Breyer said today,

"I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.”

I don't understand how the replacement process can move as far as confirmation if no vacancy actually exists at the time.

The conspiratorial among us will suspect that the new justice will be confirmed and the old justice will not retire and we will then have a 10 member court.

If you're going to quit, then quit, old man. We'll handle it from then on.

Misinforminimalism said...

The entire premise of this post is disgustingly racist and sexist.

But if we're talking "stakeholder representation," why limit it to American citizens? Why no Green Card holders? No "undocumented" immigrants? People who've declared bankruptcy? Those are all groups whose members are likely to bring claims to be decided by the Court, probably more often than abortion. Shouldn't we have a union rep (and a non-union worker, of course), plus someone from the nonprofit sector, a CEO, a stay-at-home mom (or dad!), and a furry?

Maynard said...

I hope Biden's pick goes down in flames. The Kavanaugh confirmation was hilarious. I think this one is going to be worse (especially if Biden's nominee has an active social media presence)

The nominee will sail through confirmation with minimal criticism and at least a half dozen Republican votes: Romney, Collins, Graham, Lankford, Burr, Sasse and probably a few more.

Elliott A said...

Since a supreme court justice is an appointment and since they are federal employees, selection based on race is a clear violation of Title VII. Also, as has Justice Thomas, she will face a lifetime of having to answer to not having earned the appointment, but rather just a convenient affirmative action beneficiary. Ironically, if she were the ideological opposite of Justice Thomas, the opposing votes would have the net effect of zero representation. I wouldn't choose a neurosurgeon this way.

Gahrie said...

"I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.”

You would think by now, as long as he's been on the Court, he would have figured out how it works. You cannot have a confirmation process until a vacancy occurs.

n.n said...

Both male and female sexes of orange are unrepresented through modern diversity, inequity, and exclusion policy.

Ahouse Comments said...

I take a backseat to nobody in my opinion of Kamala's incompetence.

Like most here I was horrified at the idea of her on the Supremes.

I've mellowed a bit over the past couple days. Not quite to the point of supporting her nomination but leaning in that direction.

I think everyone, including most democrats and progfas agree that she is clearly incompetent even as a VP, an office that normally never requires much competence by it's nature. We could probably live with her as Veep if it were not for the increasing liklihood that Biden will be leaving office, probably sooner than later.

We clearly cannot have her in the White House. Is there anyone here who disagrees with that? But there is no mechanism for replacing her. Not impeachment, not 25A. Neither will work with her.

Could she be given a huge wad of money to resign? Possibly but probably not. Her husband is super rich so she doesn't need the money and would not want the humiliation.

Putting her on the Supreme Court would be a graceful way of getting her out.

Might the Republican senators make a deal along the lines of "We'll back her for Supreme Court if you will back our pick for Veep."?

How much damage could she do on the Supreme Court? No Biden nominee is going to be much better. Maybe just bite the bullet to save the White House.

Most people here know who I think should be the next veep but I'll leave that alone for the moment.

John LGBTBNY Henry

Tarzan said...
This comment has been removed by the author.
Josephbleau said...

We tell the children that the Supreme Court decides cases by examining the law and the details of the case, but this is a Santa story. If it were true then there would be little bickering over who is on the court. They would all make similar findings within a range. We need a better rule to neutralize the court, then it matters less who you pick.

Say, make the Justices assign cases into groups of three based on a poll of the house by importance. Rule on each group at the same time, then give each Justice only two votes usable for any of the three cases, but only one per case. This would more fairly distribute outcomes and make small majorities less powerful. A tie triggers a majority vote of all nine justices. This process could be gamed in a number of ways but would give the minority more victories.

Michael said...

If Republicans were smart, they'd start seeding the discourse as to why Biden picked a Black rather than an Asian. AAPIs are already migrating to the Rs, this could accelerate the process

Michael K said...

How much damage could she do on the Supreme Court? No Biden nominee is going to be much better. Maybe just bite the bullet to save the White House.

That's a good point. We already know how any Biden appointee will vote.

tim in vermont said...
This comment has been removed by the author.
Spiros said...

Maynard, I said "hope." But I do think you're right. Opposition to Supreme Court nominees is a function of the ideological contrast between the nominee and the retiring justice. So if one liberal replaces another liberal, most Republican senators won't care because the Supreme Court is no better or worse off than before.

All hell will break loose if Clarence Thomas dropped dead and Biden chose a woke judge who hates Israel (i.e., the Jews) and Asians, demands reparations through her moronic twitter account, thinks late term abortion is a human right, etc.

readering said...

I think Biden will select Justice Kruger to replace Justice Breyer. He's Jewish and her Dad's Jewish so it keeps in place one of the Jewish seats on the Court.

khematite said...

Blogger Gahrie said...
"I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.”

You would think by now, as long as he's been on the Court, he would have figured out how it works. You cannot have a confirmation process until a vacancy occurs.


When Sandra Day O'Connor announced her intention to retire in a letter to President Bush on July 1, 2005, she did so "effective upon the nomination and confirmation of my successor." So, she did not formally retire until January 31, 2006, the day Samuel Alito was confirmed to fill her seat.

Previous to O'Connor's retirement, Chief Justice Earl Warren in 1968 had also made his retirement conditional upon the confirmation of a successor. Many other justices (e.g., David Souter and Anthony Kennedy) have specified a date certain for their retirements.

khematite said...

Blogger rcocean said...
Blackumn got put on the bench because Ike wanted a Catholic - he was running for reelection.


I think you mean Brennan.

Rosalyn C. said...

According to wiki: "After President Joe Biden made a campaign pledge to appoint the first African American woman to the United States Supreme Court, [Leondra] Kruger became the subject of speculation as a future court nominee.[2] If she replaces Justice Stephen Breyer, she would also continue the tradition of the court's "Jewish seat." While Justice Elena Kagan is also Jewish, Breyer sits in a seat historically assigned to a Jew for a large part of the past 100 years. The seat was held by Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, and Breyer, but also was occupied from 1970 to 1994 by the Methodist Harry Blackmun.[27][28]"

Honestly, I find the thought laughable that anyone has ever been concerned about making sure Jews are represented on the court or in any capacity in our society. In what area of endeavor has anyone ever been concerned that Jews be represented or has there been affirmative action for Jews? None that I can think of. Jews have a tradition and reputation for high intellectual achievement and competence -- and are a blessing to any nation who has given them freedom to live in peace. Jews have succeeded because of merit, definitely something we can't talk about anymore because of "white privilege."

That's an answer to the offensive question posed by Blogger Blue crabs in Space who said...
"Better question then is, as 1.8% of the population why was 1/3 of the Supreme Court bench Jewish for so long, in the form of Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan?" He seems to be implying there is some conspiracy or holds the belief that Jews have too much power in society. That's classic anti-semitism.

I think eventually the case will be made that if an Afro-American (I like that term) woman is nominated she must be qualified based on her legal abilities and her race or religion is very much a secondary consideration, a superficial appearance of representation. I have heard that judges must not only be free of conflict of interest but the appearance of conflict of interest; so how in the world does representing a special interest group constitute avoid the appearance of a conflict of interest? The absurdity is sickening. But that's where we are at.

Maynard said...

@Spiros

The part of my post in italics is always a quote from another commenter. I do not usually name that person per our hostess' request a few years back. On to another point:

Changes in personnel affect the SCOTUS inlays we should consider. If Biden's people nominate a smart Black female Lefty, as I suspect, she will get respect as she gives respect to the older Justices. Over time, she may become an influencer. If she is an idiot like Sotomayor, she will have little influence, just a predictable vote.

Everyone's role may change to make up for the loss of a senior Justice. I suspect that Neil Gorsuch will become more of an internal force than people suspect.

Baceseras said...

It's not a representative body, the Supreme Court, its members have no "constituency" ; they are there for their learning, their knowledge of the law, their ability to speak the logic of the law: their job is to expound the Constitution. That is all; that is enough.

Narayanan said...

inheritance of seat by "community affiliation" on USSC seems almost /royal/ or opposite of attainder

stephen cooper said...

My conlaw teacher was a nice woman. She was one of Thurgood Marshall's favorite law clerks.

Thurgood Marshall was not a good man, however.

Lem said...

No hay mal que dure cien aƱos, ni enfermo que lo resista. So goes the Spanish saying.

If Affirmative Action is a remedy, according to that saying it only has about another 50 years to prove it's worth.

ken in tx said...

Richard Nixon thought the court should be representative of the public. When one of his nominees was described as 'mediocre', he asked, "Aren't the mediocre entitled to a little representation?" The idea was ridiculed then, now it would be considered Woke.

Stephen St. Onge said...

“given that white men were the only possible citizens of the USA at the founding and for decades afterwards.”

        That’s just wrong.  Women were always citizens.  What they weren’t was voters (with rare exceptions), or considered eligible for office.

effinayright said...

stephen cooper said...
My conlaw teacher was a nice woman. She was one of Thurgood Marshall's favorite law clerks.

Thurgood Marshall was not a good man, however
**********
Rumor has it that Marshall had bladder problems late in life, resulting in his clerks calling him "The Dark Incontinent".

No joke!

cyrus83 said...

Incidentally, ever since Thurgood Marshall was nominated to the Supreme Court by President Johnson in 1967, Democratic presidents since have put only 1 man on the Court - Breyer himself - while women are 3 of the past 4 justices by Democratic presidents, and will be 4 of 5 if said pledge is honored and the confirmation is a success.

Of course, this is going to be only the 5th time since Marshall a Democratic president will be able to nominate a justice. Republicans have nominated 16 of the last 20 justices, and at one time had 11 in a row from Nixon through Bush (Carter didn't get to nominate anybody).

Gahrie said...

Thurgood Marshall was not a good man, however.

He was a fairly decent lawyer and civil rights activist, although he sucked as a Supreme Court Justice. They eventually had to force him to retire.

There are rumors that he was a little too touchy-feely with the women...

Kansas City said...

Fascinating interview. Justice Marshall very likeable. Reporters asked short interesting questions. Much better than today. No sense any of them were trying to show off or get attention on themselves.

Narayanan said...

why are we talking about importance of qualifications for selecting judge nominees after PROFESSORA dictum that election fraud PRESIDENT is PERFECTLY ACCEPTABLE?

AMNESIA!

Saint Croix said...

Marshall's comment that there's no difference between a "white snake" and a "black snake" is absolutely true. Dr. Seuss would be proud! But of course that's an argument for no discrimination whatsoever on the basis of color.

The Supreme Court -- including Justice Marshall -- totally screwed up that idea by saying that discrimination on the basis of color is fine.

Saint Croix said...

Even if you hate Clarence Thomas -- I love the man -- you should acknowledge that he's African American. And if you have a theory that race and racism affects people, then you should acknowledge that one of those effects is to produce people like Clarence Thomas.

Saint Croix said...

White liberals perhaps took Marshall's criticism to heart and thought that Thomas was a snake and it was fine to attack him. So Thomas shamed them all by calling them out for their racism and saying it was a "high tech lynching." That embarrassed the shit out of them.

But perhaps most embarrassing is the race obsession. If you treat human beings like human beings, you're relatively immune to being called a racist. People will still do it, of course, but it's a lie.

The problem is that many people on the left are racist (or, if you prefer, "racialist" or "race-obsessives"). To my mind there's no good racism, period. People who think there is good and helpful racial discrimination are walking in a minefield, and they know it. And this makes them scared.

I think it's entirely fair to call liberals racist for what they did to Clarence Thomas and Miguel Estrada. If you think affirmative action is appropriate, then you should applaud when Republicans do it. You should not be angry and upset and telling people that Thomas is not black and Estrada is not hispanic. And of course there are many Republicans who would deny that Thomas or Estrada were affirmative action picks. Instead we insist they were chosen on merit.

So an interesting and provocative question to ask Clarence Thomas would be, "Do you think affirmative action has helped you?" Instead they went the snake route.

The Senate judiciary committee was filled with white men. Shame! Embarrassing! They wanted to attack Thomas, but as liberals they were obsessed with the racial optics. "Our color marks us as guilty racists, how can we attack this man?" So they went the snake route and brought in a black person to do the attacking.

Anita Hill was quite happy to attack Thomas. And the Democrats, like a bunch of snakes, were hoping that America would recoil at this sex-obsessed black man who is a threat to all the girls out there.

Saint Croix said...

You'd think the liberals who are worried about "minorities" would worry about minorities within minorities. Even if Clarence Thomas is unlike the majority of black people, shouldn't you protect him more?

khematite said...

Blogger ken in tx said...
Richard Nixon thought the court should be representative of the public. When one of his nominees was described as 'mediocre', he asked, "Aren't the mediocre entitled to a little representation?" The idea was ridiculed then, now it would be considered Woke.


A good example of the attribution of well-known quotes from lesser-known individuals migrating, in the public consciousness, to better-known individuals. The above was actually said in 1970 by Senator Roman Hruska, a Nebraska Republican, in defense of Nixon's contested Supreme Court nominee, G. Harrold Carswell.