The nomination of Sonia Sotomayor to the United States Supreme Court reminds us that politics is paramount in a democracy even when the control of the highest court in the land is at stake. Exercised by both parties, the politics obviously seeks control of the court and also appeals to major voting constituencies for support.
In selecting Judge Sotomayor, President Obama weighed a number of factors. The most obvious were to nominate a “clean” person with a personal record above reproach, a history proving the highest legal ability, membership in a major voting constituency, a record of liberalism that would guarantee support of the Roe v. Wade decision on abortion. In addition, Obama needed to be sure that the candidate had paid all her taxes. The President could not afford another tax delinquent after his unfortunate experiences with Tom Daschle, Tim Geithner and Katherine Sibelius.
The politics was easy. Nominate a capable Latino to recognize an ethnic group without a representative on the court, the fastest growing minority in the nation. This was actually a double benefit: to gain the appreciation of Latinos and to inhibit the Republicans from filibustering the nominee. President George H.W. Bush used the same tactic when he nominated Clarence Thomas, expecting little opposition to an African-American from the Democrats.
Representation in the leadership of a nation is a core value in a democracy. On the Supreme Court, there are six Roman-Catholic justices, two Jewish, two Italian Americans, far above their percentages in the American population. On the court, today, there is only one woman and one Protestant, far below their national percentages. Among these underrepresented groups there are dozens if not hundreds of qualified lawyers and judges. What are we to make of the fact that in the current court, five justices graduated from Harvard Law, two from Yale Law, and one from Columbia Law. Sotomayor went to Yale. Are all the abilities in the Northeast?
Some believe that there should be a larger Supreme Court to satisfy representation, to speed court action, to enable the court to hear more cases. Does the U.S. Constitution call for nine justices? It does not. Congress decides on the number by statute and has changed it repeatedly: 1789 (6), 1807 (7), 1837 (9), 1863 (10), 1866 (8), 1869 (9). Article 8, Section 1 of the Constitution requires that all federal judges retain office during “good behavior” and only one justice, Samuel Chase, was impeached in 1805.
We pride ourselves in our respect for the rule of law, a factor that has given the nation a high degree of stability. Of course, our record is far from perfect but in no other country does the highest court possess such far-reaching power including the interpretation of all congressional enactments and making sure that the federal and state laws conform to the Constitution. Expanding the Supreme Court might make it more representative and therefore even more effective. A Supreme Court with justices appointed to represent geographic areas, sexual populations, economic interests, etc. might unify the nation more than the current system of appeasement of political constituencies.