Robert Stein 1924-2014

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Saturday, May 09, 2009

Supreme Demographics

As Barack Obama, who changed the face of America's executive branch, prepares to name his first Supreme Court justice, speculation focuses as much on demography as it did during his presidential campaign last year.

Does he "have to" name a woman? Will his choice be a Hispanic woman or perhaps a Lesbian? Is political correctness running amok?

Not if you look back at Supreme Court history which, before the nasty Bork confirmation fight in 1987, is widely believed to have been beyond politics in a bipartisan search for the best legal minds available.

When FDR railed at the "nine old men" who blocked New Deal initiatives and made his ill-fated attempt to expand the Court by as many as six members, the only demographic issue was the naming of Jews, to the consternation of Justice James Clark MacReynolds, a Woodrow Wilson appointee and avowed anti-Semite who refused to talk to them or acknowledge their presence.

In those halcyon days, not long after women got the right to vote, the "best legal minds" were to be found almost exclusively in a white Protestant male gene pool that reflected not the diversity that Obama stresses but a minority of Americans that constituted a ruling elite.

Now that those barriers are down, there are heated arguments about which former outsiders have the strongest claim to representation, but when voters put Obama in the White House, they were giving him the power to decide what the redefinition of "best legal minds" should be for the 21st century.

After all the sound and fury die down, he will do just that.

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