Appropriately enough, a majority of the conversation (online, in print, and on television) has been about Kagan's qualification for the position, what her legal views are, etc. In other words: all of the stuff that you'd expect people to talk about and evaluate after hearing about that someone has been nominated to the Highest Court in the Land. Here's Jon Stewart summarizing his take on the nomination so far:
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But dig a little deeper and you'll discover that the media and blogosphere are also abuzz about what Kagan's confirmation would mean in terms of the changing demographics of the Court.
For example...her gender. If she's confirmed, that'll make three of the nine justices female.
For me - it's an atrocity.
Not an atrocity that there would be so MANY women on the court. But...an atrocity that (even with Kagan's confirmation) there would be so FEW women on the court.
(Keep in mind that, according to 2008 data from the Census Bureau, 50.7% of the US population is female.)
Obviously, it's an open philosophical question whether one thinks that the Supreme Court should reflect the demographic realities of the country. For what it's worth, I think there is some value - at least in taking these demographics into consideration - to the extent that the justices do "represent" the entire country. Okay...so they don't represent us in exactly the same way that our Congresspeople do. Nonetheless, they are acting on our behalf to insure that the legislation that Congress passes is legal and legitimate - and in that sense they are representing us...kind of looking out for our needs.
Thus, the argument in favor of a Court that reflects the demographics of the country. Because if the entire Court were old Protestant white guys, would they really be able to do a credible job of empathetically evaluating whether certain legislation was "just" for young African Americans.
(I know - someone out there is going to flame me for completely mis-describing the role of a justice. What can I tell you? I'm not a strict constructionist.)
Anyway....all of that brings us to the question of the representation of religious diversity on the Court.
One of the things that everyone is all aflutter about this week is the fact that, if Kagan is confirmed, than it will mean that for the first time ever, the Court will be devoid of Protestants. This is indeed remarkable and noteworthy, considering that our Founding Fathers were largely Protestant. We often forget that the US is a predominantly Protestant country.
According to the 2007 report from the Pew Forum on Religion and Public Life, 51.3% of the country considers themselves Protestant. (That number has shrunk in recent decades.) Nonetheless: it is incredible that the majority religion in the country would have no representation on the Court.
Catholics, who currently hold six out of the nine seats (66%) on the Court, account for 23.9% of Americans.
And then there are us Jews. Potentially three out of nine seats (33%) on the Court, even though we account for only 1.7% of the American population. Astounding.
It's far more astounding than the numbers we put up for Congress. According to a separate Pew Report on the religious backgrounds of members of Congress, Jews make up 8.4% of Congress as a whole (House plus Senate), and a whopping 13% of the Senate.
But those numbers are nothing on 33% of the Supreme Court!
Okay: so it's hard to see a down side (besides some lame muted anti-Semitism) for us to the appointment of another Jewish Supreme Court Justice.
But: in the broader scheme of things, is it worth asking if there is such a thing as Too Many Jews on the Supreme Court?
Wouldn't there also be value for Jewish Americans if the President had nominated someone representing another demographic minority of Americans (on the presumption that individuals of minority background are predisposed to be sensitive to the needs of other minorities). I'm thinking, here, of the 15.4% of Americans who are Latino/Hispanic. Or the12.8% of Americans who are black.
Or: are we living in a post-racial, post-ethnic, post-religious moment in American life where it is considered politically incorrect to ask these questions, and concern ourselves with the identities of our Supreme Court nominees?
I'm not sure what the right answer is...But I do get to ask the provocative questions. I'd love to hear what you think.
PS: Our movement's Religious Action Center in Washington is encouraging people to post questions that they would like Ms. Kagan to answer during the confirmation hearings. On the same page, there's also a link to the Twitter dialogue on the nomination. Find it all here. (Click here for the RAC's statement on Kagan's nomination.)