Supreme Court shadow boxing

Recently, Charles Blow of the New York Times noted that, if Sonia Sotomayor is confirmed as a Supreme Court Justice, there will be 6 Catholics, 2 Jews, and only 1 Protestant on the Supreme Court. This is a sharp reversal from the situation 30 years ago where there were 8 Protestants and one (very liberal) Catholic on the Court. Blow asks, "Does/should this matter? Why?"

Here's what I think: the outsize Catholic (and Jewish) presence on the Supreme Court doesn't really "matter" in terms of the court's legal thought and direction.

I think, rather, that the confessional makeup of the court is a symptom of the bizarre, uninformative process for selecting and confirming Supreme Court justices.

As we've seen in the recent confirmation hearings for Sonia Sotomayor, it's now considered improper to ask a nominee to make a public statement about his or her beliefs or ideas on any matter of controversy that may come before the court, and a nominee may refuse such a question without any political risk.

Thus, the process of "selling" a nominee to the Senate and to the voting public is "coded" through the personal identity of the nominee. For example, Republicans have placed a very high priority on opposition to legalized abortion in the last 30 years. Since the Catholic Church has been unbending in its opposition to abortion, nominating a conservative Catholic to the Supreme Court has been a way to tacitly inform the Senate and the public of a nominee's pro-life views. Likewise, Jews have often been active in civil rights movements in the USA, so nominating a Jew is a way to signal a nominee's civil-liberties views, and perhaps carries less socio-political baggage than a black nominee.

Although Sonia Sotomayor is a Catholic, I regard this as incidental to her nomination, since her religious beliefs aren't used as a coded reference to her political views. Instead, her ethnic/linguistic identity as a Latina serves the same function: we are meant to presume that she will take a compassionate approach to immigration, that she will be supportive of cultural diversity in general, and that she will uphold affirmative action.

I'd prefer a situation where Presidents could openly nominate Supreme Court justices because of their shared legal and political beliefs, and the Senate could in turn openly question the nominees about those beliefs. Instead, we have a weird Kabuki theater in which nominees' political beliefs are only indicated via an ever-changing set of social identity markers.