In Favor of Wise Latinas
It is time to stop privileging gender and race in Supreme Court nominations. History shows a very clear and disturbing pattern of decisionmaking along gender and racial lines.
Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.
Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, while eleven of the fifteen (73%) have been white men.
Supreme Court history has been one of total domination by white men for 180 years, followed by a period of token representation for other groups, but always a large controlling majority of white men. Not bad for a demographic group which currently makes up only 1/3 of the U.S. population!
So please, don’t tell me that it’s a problem to consider race and gender in this decision; you’re preaching to the choir. I wholeheartedly agree. It is time to end the extra points which are clearly given to white males in this debate. (After all, what is the likelihood that not just the first, or second, or third best person for the court was white and male, but that meritocratic dice just happened to roll that way, ninety-five times in a row? Or even 73% of the time in the past 40 years?)
Supreme Court history shows that we *already* have a tradition of privileging one gender and race, overwhelmingly, in the nomination process. And it needs to stop.
Holmes said, “The life of the law has not been logic; it has been experience.” The experiences and background of the Justices really do matter (cf Justice Powell, the deciding vote in Bowers v Hardwick, stating that he had never known anyone who was homosexual). Would Chief Justice Taney have written Dred Scott if he had been an African-American? I doubt it. (See also James Gordon’s article on whether the first Justice Harlan had a Black brother, and whether that influenced his dissent in Plessy v. Ferguson.)
The experiences of women of color are completely unrepresented on the Court right now, and have been completely unrepresented in the entirety of United States history. There has *never* been a woman of color on the court, and even now, after barriers of race and gender have supposedly fallen, the court membership is still (coincidentally, of course!) composed 75% (6/8; it was 7/9 until last month) of white men. It’s silly to say “well, a white man couldn’t say something like that and get away with it.” White men are already represented (at twice their percent of the populace) on the Court, while women of color are not and never have been.
Do I think that a wise Latina would be more representative of the people of the country, more likely to draw on experiences that are underrepresented, than would yet-another-white-male? Do I think that a wise Latina would add a lot to the Court? Hell, yes.
Confirm her, already!