Supreme Court Justice Antonin Scalia, in a dissenting opinion in June 2015, criticized the lack of diversity on the court. His court had three female justices. It would need four or five women to be demographically representative. His court had one Hispanic justice and one African-American justice. It would need one Asian-American justice, and perhaps one more Hispanic justice, to be demographically representative.
Justice Scalia noted the lack of religious diversity and that the court did not match America’s religious composition. His court had six Roman Catholic justices and three Jewish justices. A Supreme Court that “looks like” America would have two mainline Protestants, two Evangelical Christians, two Catholics, two nonreligious justices and one from a minority religion (Jewish, Hindu, other). What social, political and religious bias has created a court where Catholics and Jews are overrepresented by more than 300 percent?
Justice Scalia felt that his Supreme Court lacked the proper representative diversity to consider and resolve the recent same-sex marriage issue. He felt that the court’s lack of diversity led the court “to violate a principle even more fundamental than no taxation without representation; no social transformation without representation.” Does this statement suggest that Justice Scalia would support a Supreme Court with one demographically representative gay justice? Following this principle, a Supreme Court that is going to rule on abortion rights, birth control and family planning issues should have more than three female justices.
Justice Scalia said, “Judges are selected for their skill as lawyers; whether they reflect the policy views of a particular constituency is not [or should not be] relevant.” Justice Scalia must have known that the current court’s peculiar lack of representative diversity is the product of decades of political, gender, racial and religious bias within the Supreme Court nomination process.
As a constitutional originalist, Justice Scalia would probably consider the current Senate Republicans’ plan to refuse to consider any Supreme Court nomination from President Barack Obama to be constitutional sacrilege. To abdicate the Senate’s responsibility would have been completely unacceptable to our Founding Fathers. The historical record clearly shows that our early presidents did nominate justices for each Supreme Court vacancy, and that the Senate always considered each nomination in a timely manner.
All of President George Washington’s Supreme Court nominees were considered and confirmed/rejected in no more than seven days. This same pattern of respectful, timely Senate response held true for the presidencies of John Adams, Thomas Jefferson, James Madison and James Monroe. This is how our Founding Fathers honored their Constitution.
The confirmation process was always less than 30 days during the presidencies of John Quincy Adams, Andrew Jackson, Martin Van Buren, John Tyler, James Polk, Millard Fillmore, Franklin Pierce, James Buchanan and Abraham Lincoln. These respected presidents would have been offended by a United States Senate that refused to honor its constitutional responsibility. Today’s Senate refusal is truly constitutional dishonor.
Bill Reid is a longtime Boise resident who believes that every organization would benefit from truly diverse leadership.