In the context of choosing a qualified jurist for the highest court in the nation, there are several practical considerations that make identity politics a poor mechanism of selection.
First, there are only nine seats on the court. It was never designed to be mathematically representative of our society. There is no “constituency” for justices on the Supreme Court. Currently, three seats are held by women. One justice is black; another is Hispanic. There are six Catholic justices. But there are countless permutations of mixed racial, ethnic and sexual orientations recognized today. Passport applications no longer list as one’s gender classification male or female, but include “other”. When will a presidential candidate announce his or her promise to appoint the first Asian Transgender to the high court?
Second, an appointment based on identity politics is exclusionary. It necessarily excludes from the pool of possible candidates those who would make qualified contributions to the Court and who check all of the relevant boxes except for race and gender.
Third, pre-assigning a seat on the Supreme Court as a “black seat” a “female seat” or a “gay-lesbian seat” fosters an expectation that the person appointed to fill such a vacancy will serve as a representative or spokesperson for their minority. This runs counter to the important judicial principle that the law should be blind to self-interests. Neither race nor gender, nor for that matter religion, should play a role in a justice’s unbiased exercise of judicial discretion. The Court should strive for justice with a shared vision for all citizens, and not merely a truncated and divisive view of promoting the interests of one minority over another.
Fourth, a Supreme Court comprised of justices who are chosen based on their skin color or sexual predilections politicizes the Court. The overarching goal of judicial neutrality gives way to turf protection and sectionalism. The Court’s opinions, depending on which justice authors them, would be dissected based on their intersectionality and whether they further the minority interests they were appointed to represent. The Court loses a sustaining element of credibility because it has sacrificed impartiality to partisanship.
Identity politics is not inclusive. It is exclusive. It has its roots in defeatism; in a Marxist doctrine that classifies individuals who are oppressed because of factors over which they have no control. It runs counter to the Biblical truth that we do not determine our identity. God tells us who we are. It is a great gift to know that we were chosen for birth at a specific time, in a specific place and with certain features designed for His glory, and that He has a plan for each of our lives.
Larry L. Crain
Crain Law Group, PLLC