Seldom as I disagree with George Will, I was surprised by the disappointment he expressed on the weblog of the Washington Post that Solicitor General Elena Kagan, President Obama’s Supreme Court nominee, “reflects the culture of the nation’s half-dozen-or-so elite law schools.” Mr. Will and others are apparently concerned that the Supreme Court’s domination by Ivy Leaguers falls short of an adequate representation of the people of America.
Conservatives were irritated when President Obama praised Sonia Sotomayor, his first Supreme Court nominee, for her illustrations of “empathy” during her career as a judge. They were similarly disturbed by Ms. Sotomayor’s remark that she as a “wise Latina” would “more often than not, reach a better conclusion” than her white male colleagues. The conservative critique was largely justified: these comments, as well as Mr. Will’s, imply that the Supreme Court effectively represents the people of the country, that its duty is to look out for the interests of various segments of society and that the ethnicity and educational background of its members should be broadly representative of that of the country as a whole.
With respect to legislatures, which are intended to be representative institutions, this argument makes a good deal of sense. Most Americans would shy away from quotas for women and ethnic minorities as exist in many foreign parliaments, but there is something to be said for the idea that a legislature cannot effectively represent the nation’s constituents without containing at least some members of each ethnic and socioeconomic group. It has been noted that, while a white male could plausibly represent women or African Americans on many issues, it would be difficult for him to do so with respect to matters uniquely affecting either of these groups. Minority communities therefore deserve at least some degree of representation in Congress to ensure that they are treated fairly.
But this is not the case with the Supreme Court, which is not a representative, nor even a democratic, branch of government. Its purpose is not to uphold the interests of individuals (at least not directly), but to faithfully interpret the Constitution. No one would deny that Ms. Sotomayor’s appointment was a triumph for the Hispanic community and an indication of our country’s transcendence of ethnic tensions, just as the appointments of Thurgood Marshall and Sandra Day O’Connor marked similar milestones for African Americans and women. If the Court’s mission is to faithfully interpret the Constitution, however, the gender, race, or, for that matter, educational background of the nominee should be irrelevant to his or her evaluation. Nominees should instead be judged by their ability and scholarship and, if they have a judicial track record, their past interpretation of the Constitution. Conservatives have generally recognized this, and should insist on this standard both for nominees they support and those they oppose.
