Supreme Court: Does Diversity Matter? Law professor Sherrilyn Ifill and editor Emily Bazelon talk about the impact of gender and ethnicity in the judicial system and how important it is that Supreme Court justices come from varied backgrounds.
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Supreme Court: Does Diversity Matter?

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Supreme Court: Does Diversity Matter?


Supreme Court: Does Diversity Matter?

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The nomination of Judge Sonia Sotomayor to the U.S. Supreme Court fulfilled the hopes of many Latinos and women. The story of a rise from a housing project in the Bronx inspires Americans of every background. But what difference might it make with a second woman and the first Hispanic on the high court? And is there an informal quota system that will leave Clarence Thomas as the only African American justice?

If you have questions about sexual and racial diversity on the Supreme Court, send us an email: Emily Bazelon is a senior editor at the online magazine Slate, and joins us today from our bureau in New York. Nice of you to be with us today.

Ms. EMILY BAZELON (Senior Editor, My pleasure. Thanks for having me.

CONAN: And Sherrilyn Ifill is a law professor at the University of Maryland School of Law, and with us today from the studios of member station WEAA in Baltimore. Welcome to you, too.

Professor SHERRILYN IFILL (Law, University of Maryland School of Law): Thanks for having me.

CONAN: And Sherrilyn, let me start with you. You wrote a piece for the online magazine The Root where you asked whether blacks should be disappointed that President Obama's first nomination went to Judge Sonia Sotomayor.

Prof. IFILL: Yes, and my conclusion was that we should not. It actually came out of an experience I had the day of Judge Sotomayor's announcement when I called one of my Latino friends and - to get his feelings. I knew he would be excited that this was an important symbolic moment for the Latino community. And he said to me, the first thing, are you disappointed?

And I think it's important for people to recognize that because the views of the one African-American justice on the court, Clarence Thomas, is so widely divergent from the views held by most African-Americans around a variety of issues that relate to race that in many ways, many African-Americans feel that they are not represented on the court. That's not to say that Clarence Thomas is not African-American. He is certainly is and authentically is. But his viewpoints differ from the vast majority of most African-Americans.

And so there was and there continues to be a feeling that, you know, a hope that simply having Clarence Thomas on the court does not mean that a president will feel foreclosed from appointing another African-American nominee to the court whose views would be more consistent with those of most African-Americans.

And so, when Sonia Sotomayor was first announced, you know, that was the reaction of my friend - are you disappointed? And I wrote the piece to say we should not be disappointed at all, that this is a very important moment. And just as Latinos celebrated and were happy for the nomination and the tenure of Thurgood Marshall on the court, we, too, should be excited about the nomination of the first Latina Supreme Court justice.

CONAN: And the piece you wrote also mentioned the days when there was an informal quota system, that there was the Catholic seat on the bench and the…

Prof. IFILL: Yeah.

CONAN: …Jewish seat on the bench. And those days are long gone, but you worried openly in the piece, is there only one seat for an African-American?

Prof. IFILL: Well, that's the concern. I mean, you know, we've certainly gotten rid of the religious quota system, right? The Supreme Court is now dominated by Catholics. That used to be controversial. We have more than one Jewish member of the court.

And yet there, you know, if you look at the articles that have come out, or that come out every time a Supreme Court justice retires since Clarence Thomas has been placed on the court and people, you know, announced their informal shortlist of, you know, who do they think is on the shortlist that, you know, the president might pick, whether Republican or Democrat, there is almost never the name of an African-American on the list because it's almost as if the received knowledge is that, you know, the African-American seat has been filled, and therefore that's not the demographic that the president has to respond to. And that's the concern, I think, that I was trying to express in the piece.

CONAN: Emily Bazelon, let me turn to you and the - your interview with the one woman still on the high court, and that of course is Ruth Bader Ginsburg. And you asked her about her prediction that she thought one day there would be four women on the Supreme Court.

Ms. BAZELON: Right. And she was funny. She said, well, my prediction has turned out to be true for the Canadian Supreme Court.

(Soundbite of laughter)

Ms. BAZELON: And then she said that she, you know, is really looking forward to no longer being the sole woman around this place, as she called the court in the kind of, you know, intimate way. And there is a certain loneliness to the symbol of being the only person. It goes to what Sherrilyn was saying, too, about why it's important to have more than one African-American on the court. You don't necessarily want to be the one who is speaking up for your whole sex or for your whole race.

CONAN: And feeling that you are the representative of everybody on your side, the side of the sexual divide in any case - that's speaking for Ruth Bader Ginsburg. And it was so interesting that she talked about the difference that she thought women made on bench.

Ms. BAZELON: Right. I mean, she is not what's often called a big difference feminist, meaning that, you know, she pushes the notion that having women will matter in outcome in terms of a lot of different kinds of cases. She's - you know, there is actually some academic research - it goes in a variety of different directions - it's not conclusive, but some indication that at least some studies show that women do reach different rulings than men or that they influence men when they're on an appellate panel with male judges.

And Justice Ginsburg really was only willing to allow for a limited purview for that kind of outcome effect of women on the bench. And she was talking about sex discrimination cases - in particular, sexual harassment cases.

CONAN: And let me turn back to you, Sherillyn Ifill. And the presence of an African-American justice on the court, well, I think a lot of people have written what a difference Thurgood Marshall made.

Ms. IFILL: Yeah. I mean, it's interesting to me that people are finally beginning pay some more attention to this. It certainly came out when Justice Marshall retired from the bench and there was an issue of the Stanford Law Review that was kind of dedicated to Thurgood Marshall when he left the bench.

And then a number of the pieces that were written by justices who sat with him on the court, Justice O'Connor, Justice White, even Justice Rehnquist talked about the presence of Justice Marshall in the conference and how that presence influenced them, the stories that he told about not just his personal experiences but his experiences representing African-Americans in the South, representing poor and marginalized people.

And I think it was Justice White who said, you know, he told us things that we knew, but didn't want to remember. And so I think that there was a certain truth that he spoke. There was a certain reality that he was able to bring into the conference room that was important. Now people ask, of course, they say, well, did it make a difference? You know, did they change their votes as a result of Marshall's stories?

(Soundbite of laughter)

Ms. IFILL: And I, you know, I've looked at some of Justice O'Connor's cases, and I'd have to say no. But, you know, judicial decision making is not just about the outcome of the case - you know, the five-four, the six-three. It's about deciding which cases the court's going to hear, which is a decision, by the way, that by tradition, is made by four justices, or four justices vote to hear a case, then it can be granted - you know, the writ of certiorari can be granted and the case can be heard.

It's the arguments that are used to support a decision or to support a dissent. I mean, there are lots of decisions that form judicial decision making. And I think that I appreciate the candor of the justices who served with Thurgood Marshall. Even Justice Scalia has said just his presence in the room made a difference.

And I actually think - you know, this year I was listening to the oral argument in the big voting rights case that came out of Texas. This was a case that was going to decide whether Section 5 of the Voting Rights Act was unconstitutional. And I listened to the oral argument, and I felt certain that some of the questions asked by some of the justices - Justice Roberts, perhaps Justice Alito - maybe wouldn't have been asked if there were a Thurgood Marshall on the bench because of his background, because of his experience and because of the kind of moral heft that he brought to the bench.

CONAN: And Emily Bazelon, let me ask you about another case that was just argued and decided in the most recent term of the court, and that involved the search of a 13-year-old girl. The school authorities had a zero tolerance policy and were looking for drugs that she may have been carrying. It turned she was not. But any case, during oral arguments, a lot of people came to the conclusion that this did not seem to disturb the male members of the court.

Ms. BAZELON: Right. And there were some comments by the male justices. Justice Breyer in particular said something about how when he was in middle school, you know, people sometimes put things in his underwear and it was all sort of in the spirit of play. And you could see during oral argument that Justice Ginsburg was quite dismayed by some of her colleagues' reactions.

And then, while the case was still pending, she gave an interview to Joan Biskupic at USA Today in which she made it clear she was not happy with how her male colleagues had behaved at oral argument. And lo and behold, when the majority opinion by Justice Souter was issued, it took a much more sober approach to the case. And, in fact, you know, by eight-to-one, the court found that this search of this 13-year-old girl was unreasonable and thus unconstitutional.

And in the - the course of making that ruling, Justice Souter singled out changing your clothes for gym as a different kind of circumstance than a strip search when you're accused of having drugs.

CONAN: And going back to the days when there were no women on the court and it was first broached back, I guess, in the Truman administration, the idea that well, you know, this is sort of a men's club. It's a place where people kick their shoes off and kick back. Having a woman would change things. Has it changed things, at least according to Justice Ginsburg?

Ms. BAZELON: Well, Justice Ginsburg has a great way of telling that story. Truman was thinking of appointing a woman named Florence Allen to the court. And one of the sitting justices at the time, Fred Vinson, said to Truman, well, you know, we like to loosen our ties and kick off our shoes. And I just - you know, we'd be inhibited if there was a woman here. And Justice Ginsburg's reaction was to say, well, I just don't know how many times I've taken my shoes off in court.

And, in fact, one - there was one instance in which she was sitting behind the bench and she didn't get up right away. And there were some speculation in the press corps that perhaps she was frail and couldn't get up. And, in fact, she had to correct that impression by saying actually, she had kicked the shoe off and she was sort of searching for it down underneath the table.

CONAN: Here's an email we have from Maria in Fargo. Please remember, there are only nine seats on the Supreme Court, and filling everyone's wants and need of representatives per every single group in the U.S. is simply not realistic. Most white Americans have little in common with the white justices currently seated. That doesn't mean their opinions mean less to the people. The people nominated and seated on the Supreme Court must be above the common men. Sorry, but everyday Joe just won't do it up there. I don't care what color he or she may be.

And I wonder what she would make of that, Sherillyn Ifill?

Ms. IFILL: That's a really good point that Maria makes. And, you know, it's something I've been talking about since Justice Souter announced his resignation in that, you know, beyond race and gender, there are other aspects of diversity that are missing on the Supreme Court. And, in fact, Judge Sotomayor would fill, you know, certainly one of them, and that is that she has been a trial judge.

There are some professional - there's some professional diversity that I think is much needed on the Supreme Court. If you look at the profile of most of the nominees to the court over the last 20 or 30 years, you know, we can look at the profile, and it's basically someone who's been a prosecutor and who's been a federal appellate judge. That's essentially the profile. That's essentially the track.

That's not at all, you know, the full measure of the legal profession. I mean, we almost never consider people who spent their legal career as public defenders. And yet this is, you know, an aspect of lawyering that is essential to our system of justice. And so we're missing that perspective on the bench.

You know, we're not picking lawyers who come out of family practice. We're not picking lawyers who have spent their lives or the bulk of their careers as politicians, as Earl Warren was. So, you know, I think that even beyond - and Maria's right. We can't kind of satisfy everything. But I'd like to see us pay some attention to this question of professional diversity and the possibility that we are really narrowing the track to the Supreme Court.

Interestingly enough, if we do that it will actually affect racial and gender diversity, because as it turns out, for example, most minority women begin their legal careers, not as prosecutors and not in private practice. Most minority women begin their legal careers as public interest lawyers.

So, you know, it seems to me that if we begin to diversify the professional profile, it will have some collateral effects that will reach some of these other issues that we tend to think about when we think about diversity.

CONAN: Sherrilyn Ifill is a professor at the University of Maryland School of Law, with us today from WEAA in Baltimore. Also with us, Emily Bazelon, a senior research scholar at the Yale Law School and senior editor at Slate. You're listening to special coverage from NPR news.

And I wonder, Emily Bazelon, on the last point that Sherrilyn Ifill was talking about, of critical importance to any president who appoints somebody to the United States Supreme Court is the idea that they can get confirmed. And if you were to come with somebody, perhaps off the established track that Sherrilyn Ifill was talking about in terms of the court of appeals, well, that makes more difficulties getting somebody confirmed.

As you've been listening to these hearings over the past couple of days, one thing that has not been able to be assailed on Judge Sotomayor's behalf by the Republicans is her record of achievement in both school and on the court.

Ms. BAZELON: That's true. You want to pick someone who has a reputation for excellence. But I agree with Sherrilyn that there are more paths than we currently seem to easily allow for. For example, if a president were to pick a governor or a senator, there would be a kind of professional courtesy, I think, extended to that person, and potentially room for a kind of wider range of expressive views in the course of one's career than we're seeing easily accommodated in the Sotomayor hearings.

CONAN: Here's an email we have from Dan in Denver. I think the Republican talking point that nominee Sotomayor can be a bully on the bench is sexist, and that were Judge Sotomayor a man, the bullying these Republicans are complaining about may well be interpreted and lauded as a no-nonsense, down-to-business, tough-but-fair work by a strong-minded man. Because she's a strong-minded woman, some Republicans are uncomfortable and therefore afraid of her.

What do you make of that, Sherrilyn Ifill?

Prof. IFILL: Well, I wouldn't attribute this only to Republicans. The first stories that came out about Judge Sotomayor did, you know, reflect these rumors that, you know, she can be a bully on the bench and she can be tough on the bench and so forth.

And I think those of us who have practiced law and those of us who, you know, are women of some forcefulness, recognize that this is sometimes - and that's not to say that there aren't women judges who lack judicial temperament. But I think the willingness and the readiness of people to repeat this rumor and to believe this is very much steeped in both race and gender.

I mean, there's something very strange about, you know, the first Latina Supreme Court justice, you know, being accused of being kind of fiery and temperamental. I mean, it hues a little bit too close to the stereotype to be devoid of any suspicion.

And so the idea of closely questioning lawyers, you know, being someone who's tough, these are qualities that are seen as positive qualities in a male judge. Think about Justice Scalia, who, you know, is very, very - can be very, very tough at oral argument, and people kind of see him as being kind of a, you know, a rascal. But they don't see it as a negative.

Or someone like Judge Richard Posner on the 7th Circuit Court of Appeals - also very, very tough judge. He's seen as being brilliant, as being intellectual, as being tough as nails, but is not seen as a negative. So I think we have to be very, very careful when we're talking about lawyers and judges who, by their very nature, are forceful people as to whether or not we have different expectations of minorities and women.

CONAN: And Emily Bazelon, can you tell us in 30 seconds the story that - about Judge Ginsburg and Judge O'Connor and her cutting her off?

Ms. BAZELON: Justice Ginsburg tells a story that at oral argument, Justice O'Connor was talking and Ginsburg asked a question. And the press reported this as a headline, something like Rude Ruth interrupts Sandra, even though when Justice Ginsburg spoke to Justice O'Connor afterwards, Justice O'Connor said, oh, Ruth, it's fine. The boys do it all the time.

CONAN: Thank you both for being with us today. Sherrilyn Ifill, a professor of law at University of Maryland Law School. A link to her article "Should Blacks be Disappointed," can be found at Click on TALK OF THE NATION.

And Emily Bazelon is a senior research scholar at Yale. Her interview with Justice Ginsburg can also be found at our Web site. And we thank them both for their time.

You've been listening to special coverage from NPR News. More on the nomination later today on NPR News. I'm Neal Conan in Washington.

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