It is interesting to note that whenever you hear a sports fan talk about something as important as whom they would like to be in their starting lineup, no one mentions “diversity”.
Yankee fans, for example, don’t look at a shortstop who’s hitting .235 in the minors and say, “That guy is gay. We’ve got to get him to replace him Derek Jeter. Think of the diversity that will give us!” Baseball general managers did not look at Alex Rodriquez when he was a free agent and say “Sure he’s great, but he’s Dominican. Don’t we already have enough Dominicans on our team? Can’t we sign a Filipino or something?”
Diversity is simply not a factor when it comes to the important things in life, like the lineups of our teams. However when it comes to filling a vacancy on something relatively trivial, like the Supreme Court for example, we have the luxury of calculating diversity into the equation.
Look at the list of favorites for the Supreme Court. The names are not the same names as would be on a list of those considered to be most qualified to be on the Supreme Court. They all have spectacular résumés, of course, and they are all smart, but they are not considered to be the Who’s Who of the legal world. That is because this list is not intended to reflect who is the best of the best.
They are the names of women: Gov. Granholm, Gov. Gregoire, Elena Kagan, Pamela Karlan, Leah Sears, Sonia Sotamayor, Kathleen Sullivan, Kim Wardlaw, and Diane Wood. Of these women, the ones considered to be the favorites are Sotomayor and Wardlaw, both of whom are not only female but have the advantage over the others to be Hispanic as well.
One question I found particularly interesting was posed to a senator recently, in reference to whom President Obama should pick to replace Souter; “Shouldn’t the next Supreme Court nominee be gay?” I am not opposed to a homosexual being picked to the Supreme Court, but I question the relevancy of someone’s sexual orientation for such an important job.
Ironically, the nomination of a person to the most important legal assemblage in the world seems based on a series of questions not even legal to ask an applicant of almost any other job. No human resources manager would ask me if I were gay, would they? Nor would they be basing the hiring decision on my ethnicity, political leanings, or gender – at least not if they were interested in hiring the best possible person for the job.
When asked about the criteria he would use to pick the next Supreme Court nominee, Senator Obama said he would like someone with “the heart…the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” While it may be arguable that those are all fine things to consider when voting for a political candidate who would be in the position to write laws affecting ‘the poor or African-Americans or gay or disabled or old’ it is not the role of a jurist to write such laws. It is the role of the jurist to interpret those laws.
The jurist is, to paraphrase the Chief Justice of Supreme Court, like a baseball umpire. His or her only function is to interpret ball and strikes, who is safe or out, according to the rules of the game. A baseball umpire would not call a pitch a strike based upon his or her empathy for whatever ethnic group, or based on whether the umpire was male, or gay, or a Democrat, but rather on where the pitch crosses the plate. A judge should do the same.
It is incumbent upon baseball officials to pick umpires based on the umpire’s demonstrated ability to fairly and accurately enforce the rules of baseball on the field, just as it is incumbent upon a baseball general manager to hire players based not on “diversity,” but rather on talent. I argue that a Supreme Court jurist should be picked based on this criteria, not based on some diversity checklist.