Elena Kagan’s ascent to the Supreme Court would usher in a new era in the history of the United States, both in terms of inclusion and exclusion. It will be the first time in history that three women have served on the Court, and the first time ever that the Court will be protestant-free. If confirmed, Kagan will be the third Jew to join six Catholic Justices.
Generally speaking, the religious background and/or affiliation of Supreme Court Justices ought to be completely irrelevant. Jurists belong on the Court because of their legal acumen, not because of, or despite, their personal faith. The very notion that one’s religious background predisposes them to be more or less just, to manipulate the law on the behalf of one group or another, is actually offensive. But in this case it may be otherwise.
In this case, the decision to create a Protestant-free Supreme Court may violate the president’s own principles. And if it doesn’t, then it sends a clear message about his sense that religious identity is relatively unimportant, at least when compared to gender identity.
President Obama has made it clear that personal life experience and the awareness it creates should be factors in determining who is best suited to serve as a Justice. He has made numerous observations about the benefits of a potential Justice’s world view being shaped by the events of their personal lives. Comments made by Justice Sotomayor about the value of her experiences as a Latina, comments defended by the president, made that abundantly clear.
To be fair, the idea that Justices interpret the law in some abstract way, and read it as if uninfluenced by all their previous experiences is inane. What does it mean to read anything independent of all that we as readers have come to know and experience? There is no such thing. However much strict constructionists may want to claim otherwise, reading, especially reading the Constitution, is an act of interpretation and all interpretation is shaped by the experience of the one doing the interpreting.
Since there is no such thing as reading the law independent of the reader’s experience, both the president and Justice Sotomayor were probably wise to admit what we all already know, and should have admitted all along. But if life experience matters, then a Protestant-free Court is not so unimportant after all. Unless of course, in the mind of the President, religion is simply one of those things that doesn’t matter but gender is.
Why is it that gender experience is relevant, but religious experience is not? Why is it that a Court with which more Americans can identify in terms of gender is important, but one with which they can identify in terms of faith, is not?
If it is time for conservatives to give up naïve notions of judicial neutrality and the idea that the Constitution simply says what it says, then it is also time for liberals to give up the tendentious claim that they are the truly inclusive ones. In fact, people of all stripes tend to include what they like and exclude what they do not, and the sooner we are all honest about that, the healthier the process of appointing and confirming judges will be.
The issue should be brilliance, not balance. And it goes without saying that one’s definition of brilliance is informed by many things. As long as mastery of the law and ability to play nicely with the other Justices is at the top of the list, then we should save political battles for elections and accept that elected officials from both sides will tend to appoint judges who reflect their understanding of the law, and stop worrying about a judge’s identity ─ religious, gender or otherwise.
Rabbi Brad Hirschfield is the President of Clal-The National Jewish Center for Learning and Leadership and author of "You Don’t Have to Be Wrong for Me To Be Right: Finding Faith Without Fanaticism."
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