With the announcement of the retirement of Justice Stevens, the question has arisen: Should President Obama nominate a Protestant to succeed him? Of the remaining justices, six are Catholic and two are Jewish. If President Obama does not nominate a Protestant, this will be the first time in American history when there will not be a Protestant on the Court. How should we think about this?
Since the founding, there have been 112 justices of the Supreme Court. Of these, 94% have been Christian, 83% have been Protestant, 11% have been Catholic, and 6% have been Jewish.
The U.S. population today is roughly 78% Christian, 51% Protestant, 24% Catholic, 16% non-religious, 2% Mormon, 2% Jewish, and 2% Muslim, Buddhist and Hindu combined.
This means that, relative to the current population, Christians, Protestants and Jews have been substantially overrepresented on the Court historically, whereas Catholics, Mormons, Muslims, Buddhist, Hindus, and especially non-religious people have been substantially underrepresented on the Court.
To bring total Christian representation on the Supreme Court down to the percentage of Christians in the current population, none of the next 22 justices should be Christian.
To bring total Protestant representation on the Supreme Court down to the percentage of Protestants in the current population, none of the next 69 justices should be Protestant.
To bring total Jewish representation on the Supreme Court down to the percentage of Jews in the current population, none of the next 139 justices should be Jewish.
To bring total Catholic, Mormon, Muslim, Buddhist, Hindu and non-religion representation on the Supreme Court up to the percentage of those groups in the current population, the next 69 justices should consist of 32 Catholics, 29 non-religious individuals, four Mormons, a total of four Muslims, Buddhists and Hindus, and no Protestants or Jews.
And what about blacks, Hispanics and Asians? Blacks are 12% of the current population, but they have historically been less than 2% of the justices; Hispanics are 12% of the population but have been only 1% of the justices, and Asians are 4% of the population, but have never been represented on the Supreme Court. And what about women, who are 51% of the population, but have been less than 3% of the justices? To give women appropriate representation, the next 112 justices will have to be women.
In such circumstances, do we really need to fret over whether the next justice is a Protestant?
In my view, a president should focus primarily on two considerations in selecting a nominee for the Supreme Court. First, a nominee must have the intellect, temperament and experience necessary to fulfill the responsibilities of the office. This is paramount. Second, a nominee should have a vision of the law, the Constitution and the role of the Supreme Court that is consonant with the president's own aspirations. To this end, George W. Bush nominated justices with a strong conservative bent. Barack Obama should similarly nominate justices with a strong liberal bent. Just as President Bush did not flinch in his determination to appoint justices who shared the conservative judicial philosophy of Antonin Scalia and Clarence Thomas, President Obama should be willing to fight for the confirmation of justices who reflect the judicial philosophy of William Brennan and Thurgood Marshall. Only then can he restore some semblance of balance to the Court.
Only in choosing among candidates who clearly satisfy these first two criteria should a president consider diversity. At that point, diversity might be relevant in two ways. The appointment of an individual of a particular heritage or background to serve on the highest Court in the land can serve as a profoundly important act of affirmation. The appointments of Louis Brandeis, Thurgood Marshall, Sandra Day O'Connor and Sonia Sotomayor marked critical milestones for Jews, blacks, women and Hispanics in the United States. Today, such an expression of openness, equality and acceptance might make especially significant the nomination of an openly-gay individual, a non-religious person, an Asian-American, or a Muslim. Diversity is also relevant because the varied backgrounds, experiences and values of individual justices can, if kept in proper perspective, inform and enrich the discourse within the Supreme Court in ways that enable it better to fulfill its responsibilities to our society. But in the nomination of a Supreme Court justice, the desire to fill a Jewish seat, a black seat, an Irish seat or a Protestant seat should be the secondary, rather than the primary concern.