The Diversity Nominee
7 . 3 . 18
In the old days, an unwritten understanding, honored by presidents of both political parties, had it that certain groups—Jews, Catholics, Southerners—got a “seat” on the Supreme Court. For many years, Felix Frankfurter occupied “the Jewish seat,” William J. Brennan “the Catholic seat,” Hugo Black “the Southern seat.” Later an African-American seat was added. Thurgood Marshall, who was nominated by Lyndon B. Johnson, held it until his retirement, when he was replaced by Clarence Thomas, a George H. W. Bush nominee.
There’s not much need these days for special “Jewish” and “Catholic” seats. Of the nine Supreme Court Justices currently sitting, three are Jewish and six are baptized Catholics. The most glaring absence is that of a Protestant in what is still a Protestant-majority country, though the Catholic Neil Gorsuch attends an Episcopal Church with his wife, who is British and a member of the Church of England.
So, should President Trump, a Protestant himself (“I’m Presbyterian,” he declared during a presidential primary debate, “that’s right down the middle”), nominate a Protestant to fill the slot being vacated by (the Catholic) Anthony Kennedy?
Well, I’d be very happy to see a Protestant—especially an evangelical Protestant—join the Court. I’d also be happy to see a member of the Latter Day Saints faith among the Justices, or a Muslim, or a Buddhist, Hindu, or Sikh. Religious diversity among people in positions of influence and authority—including on the bench—is all to the good in this nation of many faiths.
The overriding consideration, however, is that our justices be faithful constitutionalists—and by that I mean, jurists whose decisions are guided by the text, logic, structure, and original public meaning of the Constitution. These are people who do not pretend that things that are not in the Constitution are there (lurking, perhaps, in “penumbras formed by emanations” or in the due process clauses of the Fifth and Fourteenth Amendments interpreted “substantively”), or that things that actually are in the Constitution are not there.
Due in no small measure to thirty years of remarkable work in legal education by the Federalist Society for Law and Public Policy, presidents today who are looking for true constitutionalists to nominate for appointments to the federal judiciary at every level, including the Supreme Court, have an outstanding pool of possible nominees. From this pool, President Trump selected Neil Gorsuch—a jurist of high intellect, exceptional learning, impeccable integrity, and admirable temperament. The question now: Who should be next?
By all accounts, the president has five or six possibilities in mind. All are sitting judges (though a nominee need not be a current or even former judge—Elena Kagan, for example, was not). All are people of intellect, learning, integrity, and sound temperament. All are constitutionalists. All would, I believe, be fine Supreme Court justices. Still, one person on President Trump’s list stands out, in my view, for the valuable diversity she would bring to the Court: Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit.
Although Judge Barrett has not served for a lengthy period of time—she was appointed last year—there can be no doubt of the quality of her mind, the scope and depth of her learning, the excellence of her character, or the suitability of her temperament. She is the equal of the others on the president’s “short list” on all of these criteria. She has experience in the practice of law and has spent the bulk of her career as a professor of law at the University of Notre Dame, of which she is a graduate. After completing her legal education, she clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then at the Supreme Court for Justice Antonin Scalia, who held her in the very highest esteem.
Judge Barrett, as a Catholic, would not bring religious diversity to the Court, as some of the other “finalists” would, but I’m sure President Trump would be glad to be the second Republican president to nominate a female Supreme Court Justice (the very first woman to be nominated was Sandra Day O’Connor—by Ronald Reagan). And it would be good to have a Republican-appointed woman on the Court, to serve alongside the three women currently serving, who were appointed by Democratic presidents. It would also be good to have on the Court a woman who truly is guided by the text, logic, structure, and original public meaning of the Constitution. Because Justice O’Connor was too often willing to depart from these sources of constitutional meaning, a Justice Amy Coney Barrett would represent another “first.” The three Democratic-appointed female Justices are, alas, of the penumbral emanationist school of constitutional interpretation. What’s more, there is no doubt that the Supreme Court will, in the coming months and years, be hearing more cases concerning laws enacted to protect the life the child in the womb by restricting abortion, and it would be good to have among the faithful constitutionalists an outstandingly qualified Republican-appointed woman. The fate of Roe v. Wade itself, a case of the most dubious constitutional standing, is likely to be considered sooner or later, and there is no doubt as to where the three Democratic-appointed women who currently constitute the Court’s left wing will stand on that. A Republican-appointed woman who is willing to consider what the Constitution actually says and doesn’t say would, in the current highly politicized environment, be a good thing.
It would also be a good thing for people to see that female jurists, no less than their male counterparts, have and are fully entitled to have a variety of opinions in debates over questions of constitutional law, including those pertaining to abortion and unborn human life. Defeating the “expectation” that women and other minorities “think alike” (at least if they have been decently educated) or “should” hold this or that particular view on abortion or anything else would in itself be salutary.
Every Justice currently serving attended either Harvard or Yale Law School. All attended Ivy League or equivalent undergraduate institutions. Three went to Princeton. Now, we certainly want the best people on our courts, especially the Supreme Court. So if that means getting them all from Harvard, Yale, and Princeton, then I would say so be it. But the obvious and undeniable truth is that there are plenty of excellent jurists out there who do not have Ivy League educations. Amy Barrett is one of them. She was graduated from Rhodes College in Tennessee before going to law school at Notre Dame. Partial as I am to the Ivies—I myself am a graduate of the Harvard Law School and have made my career as a professor of jurisprudence at Princeton—I don’t think it would be at all bad for the country to see a bit of diversity of educational background on the Court. Quite the contrary.
It would be a mistake to interpret my points here as suggesting that we should return to having a “this” seat and a “that” seat for different “demographics.” Nor would I want, or does Judge Barrett need, “affirmative action”—for Republican women, non–Ivy League people, Midwesterners, people born in New Orleans, or anything else. She’s top of the top. But in choosing from the top of the top, presidents do—legitimately—take various considerations into account, including the value of having a Court whose membership includes people with diverse backgrounds, experiences, and perspectives.
And there is one more thing. When Judge Barrett was nominated for the judicial appointment she currently holds, she was the victim of flagrant anti-religious bigotry, including at the hands of Democratic Senators Dianne Feinstein and (the since disgraced) Al Franken. Barrett’s Catholic faith, of which she has the temerity to speak freely, caused Senator Feinstein, infamously, to deride her with the words, “the dogma lives loudly within you”—an egregious dog whistle for anti-Catholic animus. Others attacked her for her and her family’s membership in a charismatic religious organization, People of Praise, which includes Catholics and non-Catholics, even suggesting that it was a “cult.” (Shamefully, these attacks have already started again.) So although a Barrett nomination would not enhance the Court’s religious diversity, it would drive a stake through the heart of what has aptly been described as “the last acceptable prejudice among American elites.”
Of course, it might be that, in fact, prejudice against Catholics and other traditional religious believers is not the last acceptable prejudice. There is one more: prejudice against large families, and especially against women who have large families. (Do you doubt me? Just ask any mother of five or more children about the abusive comments to which she is subjected, sometimes by complete strangers, when out in public with the kids.) Amy Coney Barrett is the mother of seven children—one is a special needs child, and two are adopted (from Haiti). Defying that prejudice while giving the country a top-class Supreme Court justice drawn from a superb pool would be another merit of the president’s choosing Judge Barrett.
Robert P. George is McCormick Professor of Jurisprudence at Princeton University, where he teaches constitutional interpretation and philosophy of law.