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Diversity Revisited

By Jack M. Balkin

No Protestant will sit on the Supreme Court of the United States if Elena Kagan is confirmed by the Senate. Many distinguished scholars, valued colleagues and well meaning friends are troubled by this possibility. They fear a Supreme Court with six Catholics and three Jews is insufficiently diverse. I believe these worries are misguided. Our diversity concerns should focus on historically underrepresented groups, not on achieving demographic balance.

Sample size is one reason for rejecting concerns about a Supreme Court with three Jews and six Catholics. Worrying about the lack of Protestants on the Supreme Court in 2010 is a bit like worrying about the number of Irish cellists in the Boston Symphony. We might be concerned if no Irish-American ever played for the Boston Symphony or if there are no Irish cellists in the United States or, perhaps, even if the Boston Symphony has never had an Irish cellist. The mere lack of an Irish cellist at present (I have no clue about the actual ethnic makeup of the Boston Symphony) is probably little more than a statistical oddity and unreflective of broader social practices. The present religious makeup of the Supreme Court seems a similar statistical oddity unreflective of broader social practices. Protestants have long been overrepresented on the Supreme Court, in the federal judiciary, in state judiciaries, and in most government offices. Protestant voices will be heard, even if no Protestant is on the Supreme Court. In a country where every President but one has been a Protestant, we might pause before demanding the Supreme Court demographically represent the United States.

Many standard justifications for diversity are substantially weaker when our concern is the temporary underrepresentation of historically overrepresented groups. Many people believe with good reason that (almost) every person of color in the United States suffers some disadvantages solely because they are not white. Few mainstream Protestants can plausibly claim that they are consistently victims of subtle religious biases. Members of historically under represented groups have important perspectives that are often invisible to decision makers unless some representatives of those groups are at the decision table. Few decision makers require the presence of a mainstream Protestnat to be aware of mainstream Protestant values. Living in the United States for a long period of time is sufficient.

My parents witnessed too many ?No Jews (or Irish Catholics) Wanted? when they first applied for jobs. I suspect Elena Kagan?s parents have similar stories. We should not hang the same sign over the Supreme Court, even for one vacancy.

Cross-posted at Quoth the Raven: The University of Maryland Law Faculty Blog

Full post as published by Balkinization on July 02, 2010 (boomark / email).