Not Clear on the Concept
April 13, 2010, 07:30 PM
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Adam Liptak of the New York Times is confidently confused in the approved manner:
But Justice Stevens cuts a lone figure on the current court in one demographic category: He is the only Protestant.

His retirement, which was announced on Friday, makes possible something that would have been unimaginable a generation or two ago — a court without a single member of the nation’s majority religion.

“The practical reality of life in America is that religion plays much less of a role in everyday life than it did 50 or 100 years ago,” said Geoffrey R. Stone, a law professor at the University of Chicago. Adding a Protestant to the court, he said, would not bring an important element to its discussions.

“These days,” said Lee Epstein, a law professor at Northwestern and an authority on the court, “we’ve moved to other sources of diversity,” including race, gender and ethnicity. …

It is hard to imagine the court without a black justice, for instance, and it may well turn out that Justice Sonia Sotomayor is sitting in a new “Hispanic seat.” It would surprise no one if President Obama tried to increase the number of women on the court to three. Not so long ago, there was similar casual talk, but of a “Catholic seat” or a “Jewish seat” on the Supreme Court. Today, the court is made up of six Roman Catholics, two Jews and Justice Stevens.

It was not ever thus. Presidents once looked at two main factors in picking justices.

“Historically, religion was huge,” said Professor Epstein of Northwestern. “It was up there with geography as the key factor.”…

The short list of candidates to succeed Justice Stevens includes two Jews, Solicitor General Elena Kagan and Judge Merrick B. Garland of the United States Court of Appeals for the District of Columbia Circuit, and one Protestant, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, in Chicago.

But it is unlikely that religious affiliation will play a meaningful role in the decision making. Justice Ruth Bader Ginsburg has said that society is past worrying about a nominee’s religious affiliations.

Is it really that hard to grasp that in this context, terms like “Catholic,” “Jew,” and “Protestant” are primarily ethnic terms, not religious ones?

Does Justice Ginsburg, for example, keep kosher? Is that what it takes to be religiously Jewish? Who knows?

What everybody does know is that she is ethnically Jewish.

Henry Ford and General Patton believed that they were reincarnated, but that didn’t make them ethnically Hindu (at least not in this lifetime). Everybody considers them ethnically Protestant, and rightfully so.

That’s not a difficult distinction to comprehend. Obviously, there can be a gray area between ethnicity and religion (they’re fuzzy sets), but to ignore the very existence of the concept of ethnicity is to act in a fundamentally obtuse manner.

Once you recognize that “Protestant” is an ethnic category as well as a religious one, however, then a potential lack of Protestant representation on the Supreme Court could be recognized as a question of the Supreme Court’s ethnic diversity and ethnic representativeness, issues that are highly fashionable these days.

Sonia Sotomayor, for example, was repeatedly lauded for adding ethnic diversity.

So, why shouldn’t a potential lack of Protestant ethnics on the Court be considered a question of ethnic diversity?

Of course, when people use the word “diverse” they actually mean, as Orwell might say: But some nominees are more diverse than others. Ethnic diversity for me but not for thee. But, when talking about the Supreme Court, it’s hard to come up with a validation for this bias that sounds just.

So, we see a lot of Liptak’s type of strategic muddleheadedness to confuse onlookers. It’s another version of the old “Einstein was Jewish / Trotsky wasn’t Jewish” muddle in which Einstein, a good guy, is Jewish because he was ethnically Jewish, but Trotsky, a bad guy, wasn’t Jewish because he wasn’t religiously Jewish. It’s logically okay to make either argument (although not both), but, obviously, you need to note the distinction between ethnicity and religion and grasp that others might have logical reasons for not agreeing with your categorizations.

Is this really that hard?