When Republicans were warned not to give Sonia Sotomayor the drubbing Democrats gave Robert Bork and Sam Alito — lest they be perceived as sexist and racist by women and Hispanics — the threat was credible, for it underscored a new reality in American politics.
The Supreme Court, far from being the last redoubt of the White Anglo-Saxon Protestant in America, reflects the collapse of that WASP establishment, and a rising racial, ethnic and gender consciousness and solidarity.
Consider. In 45 years, no Democratic president has put a single white Protestant or Catholic man or woman on the court.
Six nominees have been sent to Congress by Democrats since 1964: Thurgood Marshall, an African-American, four Jewish nominees — Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg and Stephen Breyer— and one wise Latina woman. Not since JFK put All-American Byron "Whizzer" White on in 1962 have Democrats elevated a white Christian.
What about the Republicans? Richard Nixon and Gerald Ford nominated seven to the court. All were white, all were male, all were Protestant: Warren Burger, Clement Haynsworth, Harrold Carswell, Harry Blackmun, Lewis Powell, William Rehnquist and John Paul Stevens. No diversity there.
And from almost every standpoint, Nixon and Ford failed. Two of Nixon's nominees, Haynsworth and Carswell, were rejected. Three of the four Nixon appointees who were elevated — Burger, Blackmun and Powell — voted for Roe v. Wade, which Blackmun wrote. Only Rehnquist turned out to be a stellar justice, among the best in a century.
Nixon had intended to appoint the first woman, Mildred Lillie of California, but was dissuaded by late resistance. Ford's lone choice, John Paul Stevens, was approved unanimously, went to the court, turned left and has anchored the liberal wing for 34 years. With Reagan, nearly three decades ago, Republican presidents became more ecumenical. His first pick, as promised, was a woman, Sandra Day O'Connor.
His second was the first Italian-American ever to sit on the high court, Antonin Scalia. His third was Bork, a Protestant. When Bork was rejected, Reagan chose Douglas Ginsburg, a Jewish judge and colleague of Bork's on the U.S. Court of Appeals for the District of Columbia. When Ginsburg was pulled because of a marijuana incident in college days, Reagan went with Anthony Kennedy, an Irish Catholic judge from his home state of California.
Kennedy and O'Connor became swing votes and unreliable as constitutional conservatives. But, on diversity grounds, Reagan can hardly be faulted. George H.W. Bush chose David Souter, a white Protestant from New Hampshire, who followed Stevens left, and Clarence Thomas, an African-American from Pin Point, Ga. Thomas was savaged, but his counter-charge of having been subjected to a "high-tech lynching" knocked Democrats back on their heels and drove a wedge between party liberals and feminists and Democratic conservatives.
In replacing Chief Justice Rehnquist and O'Connor with John Roberts and Alito, George W. Bush succeeded as no other Republican president since World War II. He had not only tilted the court to constitutionalism, but also replaced two white Protestants justices with two white Catholic justices, one of whom is the second Italian-American on the court. Where does that leave the court today?
When Sotomayor is approved by the Senate, the court will, in terms of religious minorities, consist of six Catholics, two Jews and one Protestant. Ethnically, there will be one African-American, one Hispanic American, one Irish-American, two Jewish-Americans, two Italian Americans and two Anglos. That is diversity, is it not?
And who is the least represented minority in America on the U.S. Supreme Court? Not Catholics, who have two-thirds of the seats. Not Jewish-Americans, who though 2 percent of the population, have 22 percent of the seats. Not African-Americans, who at 13 percent of the population have 11 percent of the seats. And not Hispanics, who at 15 percent of the population will have 11 percent of the seats.
No, the most underrepresented group of Americans — nay, the most unrepresented minority, the largest group of our fellow citizens never to have had one of its own sit on the U.S. Supreme Court in the modern era is — Evangelical Christians.
They are more numerous than Catholics, who at 24 percent of the population have 67 percent of the seats on the court. And, for Republicans, they are a far more reliable voting bloc than Catholics — not to mention Hispanics, Jews and African-Americans, all of whom voted somewhere between two to one and 20 to one for Obama.
Bush II tried to close the Evangelical gap with Harriet Miers, but conservatives opposed her as unqualified. Republicans should now be searching for highly qualified Evangelical Christian judges and constitutional scholars, women as well as men — and, when falsely accused of being "anti-Hispanic" or "anti-woman," ought to reply: "What do you liberals have against white Christians, man or woman, not to have named one in 45 years?"
Everybody can play the diversity game.