THE PLANK MAY 26, 2009
Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, grew up near Ebbets Field, lives near Fenway Park, and has always hated the Yankees.
President Obama's selection of Sonia Sotomayor to serve as a justice marks an important step toward a more diverse and representative Supreme Court. We have had a Justice from Brooklyn (Ginsburg) and one from Queens (Scalia). Now, finally, we have one from the Bronx! People who grew up in the shadow of Yankee Stadium think differently about life and law than those who grew up in the shadow of Ebbets Field or Shea Stadium.
The fact that she is the second justice of Spanish heritage (Benjamin Cardozo was the first) and the first Latina is also significant, as is the fact that there will now be six Catholics and two Jews on the High Court. This leaves the largest group of Americans--Protestants--represented by only one octogenarian (Stevens).
If we wanted a court that truly represented our diverse nation, it would have to be as large as Congress. Wait! That's precisely why we have a large Congress based on districts. The Supreme Court, on the other hand, is tiny--nine justices in all. That doesn't leave room for much in the way of diversity, or representatives.
We used to have a "Jewish seat," a "Catholic seat," a "Black seat," and a "woman's seat." But what about Asians? Moreover, there are different kinds of Asians. Chinese Americans have little in common with Japanese Americans, though they do share a long history of enmity and distrust. It would be as if there were "a Semitic seat," and the President had to decide who best to fill it with: a Hebrew semite or an Arab semite?
So enough with diversity and representatives on the Supreme Court. No one should be excluded because of race, gender, ethnicity, or other invidious factors, as too many groups were for too many years. But nor should anyone be selected based on such factors, lest the person see him or herself as "representing" that constituency on the court (as congressmen properly do).
The only bases for selection should be legally relevant criteria of excellence. If those criteria are fairly applied, there will always be a diverse court, especially since the legal profession today has far fewer barriers to success.
By the criteria of excellence, Sotomayor is a very good choice. The fact that she comes from the Bronx is only an added plus.