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):

"Having Barrett replace Ginsberg because they are women is like having Clarence Thomas replace Thurgood Marshall because they're black."

Top-rated comment on "Who is Amy Coney Barrett, the judge at the top of Trump’s list to replace Ruth Bader Ginsburg?" (WaPo).

From the article:

A devout Catholic who is fervently antiabortion, Barrett appeals to Trump’s conservative base. But Republicans also hope that for moderates such as Sen. Susan Collins (R-Maine), her gender makes her a more palatable replacement for Ginsburg, a feminist icon who spent her life fighting for gender equality....

Trump first nominated Barrett to the U.S. Court of Appeals for the 7th Circuit in 2017. Previously, she’d taught law at the University of Notre Dame for 15 years, so she had no previous judicial record to scrutinize. Democrats balked at her nomination, questioning whether the academic could be an impartial arbiter because of her deep religious convictions. Republicans accused Democrats of applying a religious test in their questioning.

That links to a September 7, 2017 WaPo article "Did Dianne Feinstein accuse a judicial nominee of being too Christian?"

Amy Barrett... has spoken often of her Catholic faith and drawn opposition from liberal groups, which argue that she'd place it above the law. Feinstein, the ranking Democrat on the Judiciary Committee, echoed those concerns Wednesday at a confirmation hearing, telling Barrett that “the dogma lives loudly within you, and that's of concern …”

I blogged about that at the time, here. Excerpt:

Is "dogma" a dog whistle, expressive of anti-Catholic bias or does it aptly characterize a person with fixed beliefs that interfere with understanding law in a properly judicial way?... We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee....

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."

I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!

ADDED: Is it too late to be annoyed by the use of "they" in the quote in the post title? Also let me remind you of what Thurgood Thurgood Marshall said as he was retiring from the Court, before Clarence Thomas was nominated:

Q: Do you think President Bush has any kind of an obligation to name a minority justice in your place?

Thurgood Marshall: What?

Q: Do you think President Bush has any kind of an obligation to name a minority candidate for your job?

Thurgood Marshall: I don't think that that should be a ploy, and I don't think it should be used as an excuse one way or the other.

Q: An excuse for what, Justice?

Thurgood Marshall: Doing wrong. I mean for picking the wrong Negro and saying "I'm picking him because he is a Negro." I am opposed to that. My dad told me way back that you can't use race. For example, there's no difference between a white snake and black snake, they'll both bite. So I don't want to use race as an excuse.

"Warren agrees that her belief in Socratic dialogue informs how she instinctively engages with people professionally."

"In part, she said, Socratic teaching is about that back-and-forth, a breaking down of ideas and examining them from all angles. So when she and her policy team began discussing a wealth tax, she said, 'I kept taking the side of the opposition: Wouldn’t this create a problem? … We’re pulling it apart to stress-test it, see if it would work.'... One of Warren’s former students who declined to be named had a theory about the seeming paradox of a woman known as a bold political progressive adhering to an old-fashioned, rule-bound approach to teaching. It reminded him, he said, of Thurgood Marshall, who was known for being punctilious about civil procedure even as he broke revolutionary ground on civil rights. This student talked about how Marshall understood that rules could be used to enforce equality, and that as soon as you introduced flexibility and discretion, those with more power would take advantage of the wiggle room. Regulations, calling every name in a classroom, could serve as a set of guide rails, a system it would be harder to take advantage of. It’s easy to see how Warren’s fondness for just this kind of formal system jibes with her view of regulations in the financial industry. It is also true that teachers love rules.... It’s true that people may resent teachers. It’s also true that people are primed to resent teachers, because they resent women who might wield power over them, and it is still new and uncomfortable to think about women having political — presidential! — power. And yet: People who have had great teachers love them in ways that are intense and alchemical and irrational and sometimes difficult to convey — which is also, oddly enough, how some people love the politicians they believe in and choose to fight for."

From "Elizabeth Warren’s Classroom Strategy A lifelong teacher, she’s the most professorial presidential candidate ever. But does America want to be taught?" by Rebecca Traister" (The Cut).

"Getting rid of law clerks would eliminate the harassment problem and get judges doing their own work."

"Justice Louis Brandeis, who served from 1916-39, is said to have observed that the high court’s members 'are almost the only people in Washington who do their own work.' That’s not true anymore. The Supreme Court decided 160 cases in 1945, when each justice had a single clerk. Nowadays it decides about half as many cases with four clerks per justice. Law clerks were unknown for roughly the first century of the American judiciary, and the courts seemed to do fine. As my law students often comment, the older opinions are shorter and more intelligible than the newer ones."

Writes Glenn Reynolds in the Wall Street Journal.

It really is a very creepy and elitist system, and the unreadable cases — do the judges even read their "own" cases? — are a form of corruption.

On my suspicion that judges have lost track of what's in their own opinions, here's a passage from Woodward and Armstrong's "The Brethren" (which I've blogged before):

[A] clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” [Thurgood] Marshall retorted. He had never said that.

Yes, the clerk insisted.

No, never, Marshall was sure. “Show me.”

The clerk brought the bound opinions.

Marshall read the relevant section.

“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

50 years ago today: The Senate confirms the nomination of Thurgood Marshall to the Supreme Court.

"On June 13, 1967, President Johnson nominated Marshall to the Supreme Court...  Marshall was confirmed as an Associate Justice by a Senate vote of 69–11 on August 30, 1967. He was the 96th person to hold the position, and the first African American."

37 Democrats and 32 Republicans voted for Marshall. 10 of the 11 negative votes were Democrats. The other negative was Strom Thurmond. One of the negative votes came from Senator Sam Ervin, who spoke for over an hour. Here's how the NYT put it:

And here's how the front page looked:

"Mr. Greenberg was neither the first white nor the first Jew to work for the civil rights of blacks. But he was one of the most powerful white figures..."

"... in the movement in the 1960s and ’70s, a distinction that led to friction with both blacks and Jews. Still, Mr. Greenberg helped achieve through the courts what the political system had denied Southern blacks: voting rights, equal pay for equal work, impartial juries, equal access to medical care, equal access to schools and other benefits of citizenship broadly enjoyed by whites."

From the NYT obituary for the great civil rights lawyer Jack Greenberg.

"Every branch of the government could stand an 11% shrinking."

Said MadisonMan, commenting on my post expressing skepticism about the notion that the Supreme Court is "short-handed" when it has only 8 Justices instead of 9.

If the problem is that an odd number is so much better than an even number, why not 7?

I like this comment too, from Humperdink:

"Shorthanded" is a classic hockey term. One team is down a player, which results in the opposing team having a man (or woman) advantage, appropriately named a "power play". When the shorthanded time frame ends, both teams are at "even strength".

With the Supreme Court, I would prefer the even strength situation, as opposed to a power play. Maybe we would get less highly partisan rulings. Let the lower courts have their fun.

Once you visualize the Supreme Court as 2 teams playing against each other competitively, then it's the odd number that is the problem. The liberals have been playing short-handed for — what? — a quarter century? I'm counting from the year Clarence Thomas replaced Thurgood Marshall.

By the way:

The new Smithsonian National Museum of African-American History and Culture treats conservative Supreme Court Justice Clarence Thomas like a mere footnote while heralding the woman who accused him of sexual harassment, Anita Hill....

Ah, yes. 1991, the year America got its consciousness raised on the subject of sexual harassment awareness. 7 years later, we got our consciousness lowered.

ADDED: The special ice hockey meaning of "short-handed" goes back only to 1939, according to the unlinkable Oxford English Dictionary. The oldest meaning of the word is "Niggardly, mean; inefficient, ineffective," as in "My Hostesse was not short, either handed, or witted" (1622). Second-oldest is how I think of the word: "Lacking a full complement of ‘hands’, undermanned, understaffed."

And I want to say that I think it would be terrible for the Court to have a locked-in 5-Justice liberal or conservative majority. What we have had for the last 2 or 3 decades has been 2 minority factions with 1 or 2 swing voters. Now, these swing voters — O'Connor and Kennedy — could be characterized as conservative. They were, of course, appointed by a conservative President, Ronald Reagan. But conservative Presidents don't necessarily produce conservative Justices. Justice Souter showed that very well.

It has been tiresome dealing with 5-4 decisions determined by a swing voter, what with the absurd attention to how Justice Kennedy thinks about things. Much as I would like to move beyond this era of Supreme Court decision-making, I don't like the idea of a predictable 5-person majority on either the conservative or the liberal side.

I would not mind staying with an 8-person Court, where majorities require the 2 sides to find ways to come together and produce some legal thinking that would feel more like law and less like politics.

"Compare this reception of Sotomayor’s deeply personal dissent with how her colleagues talk about Thurgood Marshall’s time at the court..."

Dahlia Lithwick invites us into the world of comparative race consciousness. There are so many disparate points of comparison. Thurgood Marshall was a black man born in 1908. Sonia Sotomayor is a Hispanic woman born in 1954. And Lithwick is comparing written responses to a written judicial opinion and spoken reminiscences about private personal interactions with a colleague. But anyway, here are Lithwick's musings:

Maybe the outcry at Sotomayor’s reflections on why race and racism still matter is merely a function of her tone. Nobody likes to be told they are out of touch with reality, even if they work in a palace and surround themselves with silent, sock-footed clerks. Or maybe it was different when Marshall lectured them, or browbeat them into changing language in written opinions because he was a man. Or maybe they endured it because he was funny. Or maybe, and I suspect this is it, they could hear him because he was a part of the era that the majority of the current court wants to relegate to history: Marshall argued Brown. But Brown solved racism! 

There's no reason to suspect that anyone on the Court thinks "Brown solved racism!" Does anyone anywhere think that?

Maybe Marshall was allowed to talk about race because Marshall lived in a time the current justices still acknowledge was an era of “real” racism. Which in their view ended with the passage of the Civil Rights Act. Or maybe Marshall was allowed to speak so pointedly and openly about the intersection of race, law and his own life, precisely because, as Justice White explained it, White and his colleagues were well aware of all that they “did not know due to the limitations of our experience.” But maybe the time of acknowledging that you don’t know as much as you thought you knew about race is over. Because, seemingly, and by popular acclaim, racism itself is over.

Where is this "popular acclaim"? Stressing the importance of "reality," Lithwick invents a cartoon picture of how other people think. The issue that divides the Court isn't whether or not racial problems persist, but whether the government should be classifying human beings by race as it goes about trying to solve the various problems and risks making them worse.

And Lithwick never even mentions Clarence Thomas, who would seem to offer a second basis for comparison. How have his colleagues received the things he's written that disrupted the way they wanted to think about race? To be fair, Clarence Thomas did not write an opinion in this new case Schuette v. Coalition to Defend Affirmative, Integration and Immigration and Fight for Equality by Any Means Necessary, which had 5 opinions, only one of which was a dissenting opinion. Thomas joined Justice Scalia's opinion, which deserves a separate post. I'm just calling attention to Thomas because Lithwick is ignoring him, even as she patronizes those who act like it's passé to acknowledge that you don’t know as much as you thought you knew about race. Those other people need to acknowledge that they don't know as much as they think, but the things not known surely don't include the things Clarence Thomas has been writing — notably in Grutter v. Bollinger, which begins with a passage from Frederick Douglass, who was born 90 years before Thurgood Marshall. 

What would Jeffrey Toobin say about a liberal Justice who declined to ask questions during oral argument?

Toobin, as we've been discussing, here and here, savaged Clarence Thomas for his keeping quiet during oral argument, as if that's an outrageous failure to do the Supreme Court Justice's job.

But what about Harry Blackmun, whom liberals revered?

Throughout his career, Blackmun was not among the Court’s more prolific questioners. In fact, late in life, he noted with some disapproval the number of questions asked by Ruth Bader Ginsburg and Antonin Scalia, among others, during oral argument. “One time in a couple of related cases that were argued in tandem during a morning for two hours,” he said, “I just out of mischief, kept track of the number of questions asked, and between Justice Ginsburg and Justice Scalia there were over a hundred questions asked of counsel…the result was often that counsel never could get his case argued…it was a little disturbing at time.” When Blackmun did ask questions, moreover, they tended to be relatively random in content.

I suspect Toobin would say that there's an immense difference between an occasional random question and absolutely no questions at all for years on end, but if there's a difference, which way does it cut?

Occasional random questions are not the rigorous grilling that Toobin sees as central to the development of the argument. They seem to reflect the Justice's belief that questions ought to be asked, bereft of vigorous commitment to the task.

The prolonged silence of Justice Thomas establishes his commitment to the belief that he should not ask questions (at least not until the other Justices back off from their current practice of consuming most of the advocate's time with a continual barrage of questions coming from all directions). If Thomas believed that it was a necessary part of his job to ask a question now and then and Blackmun's approach is acceptable, he could easily have a question to ask now and then.

Toobin besmirches Thomas as lazy, but the laziest Justice in the world could have his law clerks hand him a couple questions to ask at every oral argument. It would be so easy for Thomas to push back disrespectful critics like Toobin. Clearly, he's chosen not to appease them.

ADDED: Here's a description — from Woodward and Armstrong's "The Brethren" — of how the liberal hero William O. Douglas behaved during the oral argument in Roe v. Wade:

When things fall into the wrong hands.

From Bob Woodward and Scott Armstrong's "The Brethren," the 1979 book about the the Supreme Court (in the 1969 Term through the 1975 Term). This vignette takes place after the oral argument in the Watergate tapes case (United States v. Nixon) at page 374:

The clerks turned to humor to kill time as they waited to learn what was going on. One of Powell’s clerks, disturbed by his boss’s memo the day before, drafted a phony opinion and gave it very limited circulation to the clerks’ dining room. “We believe the principle of executive privilege is important…. This case is different from all others that will come before the Court. The Court should be guided by a solicitous concern for the effective discharge of the President’s duties and the dignity of his high office.

“However, we’re deciding this case differently, because Nixon is a crook and somebody ought to throw the son of a bitch in jail.”

Marshall laughed heartily when his clerks showed him a copy. The copies were destroyed for fear that one might fall into the wrong hands.

"One of the issues that [Thurgood] Marshall enjoyed arguing with his clerks was the question of what was obscene."

Write Bob Woodward and Scott Armstrong in "The Brethren":

He loved to take conservative positions with them, maintaining that anything hard-core could be and should be totally banned. What was so important about it? First Amendment principles are not at stake in this case, he would bellow. Dirty pictures are.

What about his liberal opinion for the Court in Stanley? his clerks would ask.

He had meant only to protect people’s privacy in their own homes, he would claim with a grin. Publishers, distributors, sellers could be stopped.

But, a clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” Marshall retorted. He had never said that.

Yes, the clerk insisted.

No, never, Marshall was sure. “Show me.”

The clerk brought the bound opinions.

Marshall read the relevant section. 

“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

What Thurgood Marshall said to Clarence Thomas.

"I had to do in my time what I had to do. You have to do in your time what you have to do."

And, on society's cynics:

"What monument is built for all that negativity? You are negative sometimes in order to make something better. You criticize it in a way to improve it. There are things wrong in this country that have to be improved, but you don't just keep nagging and nagging and nagging. But at some point it's got to stop. At some point too much is too much."

IN THE COMMENTS: Eric Muller said:

If I were Clarence Thomas, this is what I would tell myself Thurgood Marshall really believed about me too.