TheLoop21.com

By: Marvin King (Add to your loop)
Tue, 05/05/2009 - 00:00

Who will the next justice be?

Should federal judges look like the rest of society? Over the years, there's been a big debate in political science about the difference it makes if the people interpreting laws look like the rest of us. With the announcement of Justice David Souter's impending retirement from the Supreme Court, this question takes on added importance.

In the annals of history, Thurgood Marshall is one of the most respected, most revered African Americans of all time. He successfully led the legal team in the school desegregation case, Brown v. Board of Education, in addition to dozens of other groundbreaking cases. President Lyndon Johnson rightly rewarded his legal acumen with a position on the Supreme Court. From that position, Marshall tirelessly advocated for African Americans against America's power elite.

We know Clarence Thomas, on the other hand, more for the Anita Hill controversy than any legal accomplishments. Most Americans, blacks included, continue to see Thomas as an exploited tool of the Republican Party.

Is President Barack Obama likely to nominate a third African American for the Supreme Court? No, but presidents can surprise. Much depends on how many more appointments Obama gets. It is reasonable to expect one more appointment for Obama, but beyond that is just speculation. You should remember that since LBJ left office — more than 40 years ago — Democratic presidents have put only two people on the Supreme Court.

Do the math. Blacks are 13 percent of the country's population. With one black justice among the nine justices on the Supreme Court, blacks are 11 percent of the Supreme Court. Do you see Obama's conundrum? At one justice, the court under-represents blacks but with two justices, blacks would be over-represented.

The disparity is even worse for Hispanics. They are 15 percent of the population, but 0 percent of the population of the Supreme Court. 

For women, the disparity is more acute. There is only one female on the bench, when we need at least four.

This is why you will hear and read so much about Sonia Sotomayor, the New York-born appellate court judge of Puerto Rican descent, and why so many folks like Sotomayor for the Court; her appointment kills two birds with one stone. She has 17 years of experience and a solidly liberal record on the court. 

Mark Halperin of Time magazine had the audacity to use his blog as a forum to complain that "White Men Need Not Apply." That is interesting considering 89 percent of Supreme Court justices are white, 84 percent of all appellate court judges are white and 60 percent of all appellate court judges are white males, yet they are only about one-third of the American population. Talk about over-representation.

Halperin realizes that because Obama is a Democrat, he is less likely to nominate a white male, and that irritates him. Ninety percent of Republican appointees to the appeals courts are white, whereas only 75 percent of Democratic appointees are white. Democratic presidents are much more likely to make the federal judiciary more inclusive.

Obama might not put an African American on the Supreme Court, but he is sure to make it more inclusive.

Marvin King is an assistant professor of political science at the University of Mississippi and writes the blog King Politics.

Does the GOP need to drop Rand Paul?

Yes, he's hurt the party enough

No, Paul is the perfect party rep

No, let the GOP hang themselves with Paul

I don't know, just watching from the sidelines