Vol. 2 No. 10 (October, 1992) pp. 126-128
A "REPRESENTATIVE" SUPREME COURT? THE IMPACT OF RACE,
RELIGION, AND GENDER ON APPOINTMENTS by Barbara A. Perry. New
York: Greenwood Press, 1991. 176 pp. Cloth $39.95.
Reviewed by John P. McIver, Department of Political Science,
University of Colorado, Boulder.
Barbara Perry's A "REPRESENTATIVE" SUPREME COURT
focuses on the appointment of 15 of the 105 Justices (8
Catholics, 5 Jews, one black and one woman) to serve on the
Supreme Court between 1789 and 1990: Roger Taney, Edward White,
Joseph McKenna, Pierce Butler, Louis Brandeis, Benjamin Cardozo,
Felix Frankfurter, Frank Murphy, William Brennan, Arthur
Goldberg, Abe Fortas, Thurgood Marshall, Sandra Day O'Connor,
Antonin Scalia, and Anthony Kennedy. After an opening chapter
laying out the conceptual framework that underlies Perry's
investigation of the representative nature of the Supreme Court,
the book presents a detailed examination of the circumstances
surrounding the nomination and confirmation of each justice.
Perry's analysis of the historical record shows that race and
gender were important considerations in the appointments of
Marshall and O'Connor. The evidence on religion as a factor in
the appointment process is mixed. For some nominees their
religion played no consequential role in the deliberations of the
president who chose them. For others, religion was an important
if not the primary reason for their selection to the high court.
Often unrecognized, Perry identifies concern with these
representational criteria of religion, race, and gender as a
distinctively 20th century phenomenon.
While Perry's suggestion that representation narrowly defined is
relevant to court nominations, her more persuasive argument deals
with the relevance of court nominations to presidential politics.
She draws a link between the political coming of age of
Catholics, Jews, blacks and women and the degree to which
presidents have considered these representational characteristics
of potential nominees. Representation is seen as a political
reward. In some cases, the reward is paid for past support. In
other situations, the reward is offered in anticipation of or to
secure future support.
Having answered the question of whether representative factors
such as religion, race and gender played a role in the selection
of Supreme Court Justices, Perry ventures further to address the
issue of whether such factors SHOULD play a role. In confronting
this normative question she finds herself skating on thin ice.
The book turns on a specific definition of representation.
Perry's definition warrants discussion for it both refines and
limits her thesis. Following Pitkin and Mosher, Perry
concentrates on "descriptive" or "passive"
representation which is "concerned with who the
representative is or what he or she is like rather than what he
or she does" (10). Indeed Perry argues forcefully in Chapter
6 that the court should be representative in this sense.
But what is the value of descriptive representation? Descriptive
representation may assist the court in establishing legitimacy of
its decisions. Yet was it important to have a black
representative on the court to get blacks to accept decision
Brown v. Board of Education? Did having a Catholic member of the
court make Roe v. Wade more acceptable to Catholics? Will having
three Catholics on the court help legitimate the overturning of
Roe v. Wade? Did having a man pen the Roe decision make it more
palatable to men and will having a woman vote to overturn Roe
make women more willing to accept such a decision?
What other possible effects of minority group representation
exist? Perhaps these individuals are role models for current or
future generations. Consider the words of Whitney M. Young, Jr.
on the appointment of Thurgood Marshall to the Supreme Court:
Page 127 follows:
This is an event of tremendous significance for Negro citizens.
It is an example of the heights which are open to kids in the
ghetto....His appointment is proof that, whatever the obstacles,
Negroes can fight their way to the top. (101)
Yet no evidence is presented to suggest that Black Americans have
found Thurgood Marshall to be a role model. Similarly, there is
no evidence that Catholic, Jewish, or female Americans have drawn
on the models presented by the likes of William Brennan, Abe
Fortas and Sandra Day O'Connor. Combined with the assertion that
descriptive representation has not led to substantive
representation, it is hard to see the point of an emphasis of
descriptive representation on the High Court at all.
In many ways, the principal findings here (despite the author's
claims) are not about descriptive representation but about the
extent of interest representation on the Supreme Court. For those
who worry about the policy agendas of Supreme Court justices,
Perry's work implies that such worries are overblown -- at least
with respect to minorities advancing positions that might be
attributed to the groups they represent.
Unfortunately, Perry's work predates the Thomas nomination of
1992. It would add to the single case study of Thurgood Marshall
in assessing the notion of a Black seat on the Court. Writing
prior to the Thomas nomination, Perry anticipates his promotion:
Clarence Thomas, a conservative black member of the U.S. Court of
Appeals..., reportedly made the short list of four candidates
when Bush was considering a replacement for Justice Brennan...
(106)
Perry argues that the best alternative for Bush would be "to
nominate a well-qualified, moderately conservative black, whose
race might blunt ideological attacks as Justice O'Connor's gender
and Justice Scalia's ethnic heritage arguably did." (106)
Bush may well have attempted to follow such advice in nominating
Thomas to succeed Marshall. The strategy was barely successful.
There are evidentiary concerns. In attempting to demonstrate the
importance of these representational factors, Perry ignores
systematic comparisons between the eventual nominee and the
"competition", those other individuals who were
considered by the president and rejected in favor of the nominee.
How can readers assess if race, religion or gender played a
decisive role, one that put a particular nominee "over the
top" in Perry's words, if we do not know what the
competition looked like?
One frustrating aspect of the book is its limited focus on the
Supreme Court. This is simply a bias of the reviewer. Assessment
of the descriptive representation of the Supreme Court is but a
small step in the examination of representation in American
courts. Most descriptive representation in our nation's courts
exists at lower levels of the federal courts and on the state
benches.
Perry concludes by reminding the reader that arguments pitting
merit versus representation as criteria for Supreme Court
appointments are both simplistic and often inaccurate. It is
possible for a candidate to satisfy both concerns. Presidents
rarely look for representative candidates that lack merit
although they may often consider meritorious candidates without
taking representation of group interests into account (and
certainly some presidents have appeared to offer candidates
satisfying neither criteria). Neither ideology nor representation
necessarily detract from merit. A candidate, particularly a
successful one, is likely to satisfy a variety of criteria.
Ideological compatibility, merit, AND representational
qualifications combine to make a nominee that will be successful.
Similarly, I would not overlook the merits of this work despite
the weaknesses noted. The systematic historical
Page 128 follows:
presentation of nomination politics will be welcome. It is a step
toward further study of the role of minorities in the American
courts.
Copyright 1992