It seems that concerns about ethnic and religious minorities serving on the Supreme Court haven't changed much since there weren't any ethnic and religious minorities on the Supreme Court. For "firsts" on the court, outright bigotries are obscured as accusations of bias aimed at the nominee, when the real concern is one of relinquishing power and authority to those seen as "outsiders." From Sen. Patrick Leahy's floor statement yesterday:
At Justice Marshall’s confirmation hearing to the Supreme Court, he was asked questions designed to embarrass him. I believe those questions did more to embarrass the Senators asking them. He fielded questions like, “Are you prejudiced against the white people of the South?” I hope we do not see such a tactic repeated when Judge Sotomayor is before the Senate Judiciary Committee on July 13. I hope that Senate Republicans will remember their proud history as the party of Lincoln, and of the Civil Rights Acts of the 1960s, and as a party that voted unanimously to confirm Thurgood Marshall to the United States Supreme Court.
Justice Marshall was not the only “first” to face adversity. When Justice Brandeis was nominated to the high court, he overcame anti-Semitism and significant opposition. The commentary at the time included questions about “the Jewish mind” and how “its operations are complicated by altruism.” Sounds like an early attack on empathy, doesn’t it? Likewise, the first Catholic nominee had to overcome the argument that “as a Catholic he would be dominated by the pope.”
Only the names, and the parties, change. A while ago, I noted that it wouldn't be hard to imagine "[Stuart] Taylor's counterpart in 1967 bemoaning the racialist legal background of the newest justice to be appointed to the court." There's no need to imagine I guess. But we all know which side of history such people ended up on. I expect this situation will be no different.
-- A. Serwer
