A History of Diversity on the High Court

Professor Barbara Perry of Sweet Briar College tells Scott Simon the makeup of the Supreme Court has always reflected political realities. And she maintains justices have usually brought a surprising diversity of experience.

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SCOTT SIMON, host:

President Bush's nomination of Harriet Miers to the Supreme Court may have taken many court observers by surprise, but there had been plenty of speculation the president would name a woman to succeed Justice Sandra Day O'Connor. Any president is under political pressure to make his court selections, like his Cabinet, `inclusive,' to use the current phrase--a group of men and women that reflect at least some of the diversity of America according to race, religion, region and gender.

Barbara Perry is a professor of government at Sweet Briar College in Sweet Briar, Virginia. She joins us by telephone from her home in Charlottesville.

Thanks very much for being here with us.

Professor BARBARA PERRY (Professor of Government, Sweet Briar College): Happy to be with you.

SIMON: And take us back, Professor, if you could, to that first Supreme Court. We think of diversity these days so much as ethnicity and gender, but in those days wasn't geography important?

Prof. PERRY: Indeed it was, going back to George Washington. He was careful to try to represent as many states as he could, because if we think of our history going back to the Colonies, we were very state-centered and state-oriented in those days.

SIMON: Does what we mean by `diversity' change from era to era?

Prof. PERRY: It does. I think that the notion of diversity really is quite modern and relates to concepts of race and ethnicity and gender and religion, to some extent. And so I'm not sure we would even use that term of diversity; but rather, again, a sort of notion of representativeness, that presidents wanted to reach out--usually for political reasons--to make the court look like America, and second, to reach out to voter groups.

SIMON: 1835, I guess, President Andrew Jackson nominated Roger Taney for chief justice.

Prof. PERRY: That's right, the first Catholic.

SIMON: Was his religion an issue?

Prof. PERRY: At the time, no. And yet the Catholic affiliation did become an issue as time went on, particularly into the late 1800s as the waves of immigrants came to this country, and many were Roman Catholic and many were Jewish. And so presidents in the effort, again, to reach out to those groups, particularly for votes, wanted to reward them by putting one of their members up on the bench.

SIMON: Harriet Miers, I believe, even identifies herself as being born-again, having had a religious experience.

Prof. PERRY: Yes.

SIMON: And something like a quarter of the population identify themselves as born-again. And I don't know as anyone else on the court identify themselves as being born again.

Prof. PERRY: No, and in fact, actually up till this point, most members of the court--and there have been 109 up till now--most had been members of what we would view as mainline, mainstream Protestant or Anglican or Episcopalian and not from that evangelical or, we would say, born-again tradition.

SIMON: So could Ms. Miers selection be seen as the recognition of what is a significant part--even growing part--of the US population?

Prof. PERRY: Oh, I think so. Now whether this would be viewed--if she is successfully confirmed by the Senate, whether this would be then viewed as the born-again seat or the evangelical Christian seat remains to be seen. But I think it's in that tradition of the president reaching out to that voting group.

SIMON: There was all this speculation that President Bush would appoint someone of Hispanic ancestry to the court to replace Justice O'Connor. I wonder if I could get you to venture some thoughts, Professor Perry, on whether or not this is just a wise thing to do in a representative democracy, to have a Supreme Court that's filled with people of different kinds of experiences and backgrounds that can maybe invest the court with a sense of the reality of the country.

Prof. PERRY: I happen to think that that gives legitimacy to the court. Because the fact of the matter is most of these people came from fairly well-to-do backgrounds and had the opportunities to go to very prestigious schools, so you want to say, `Well, how reflective of the average American is that?' I think to Justice Frankfurter, who said, `I'm a member of one of the most hated and vilified religious groups in the world,' and said that in an opinion at one time. So in some ways we probably should be more surprised by the wealth of life experiences that they do bring to that bench.

SIMON: Professor Perry, thanks very much.

Prof. PERRY: Thank you for having me.

SIMON: Barbara Perry, professor of government at Sweet Briar College.

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