What's the Point of Diversity on the Supreme Court?, Ctd

by Patrick Appel

A reader writes:

I found Conor Clarke's post on the point of diversity to be interesting, but I think you're not covering the whole picture.  For the "increasing social utility" justification, I would argue that it is cultural diversity that matters, rather than racial diversity.  Race obviously is not inherently tied to distinct cultural differences, but in the social reality of the U.S., it's simply a fact that the main differences between races are those of culture.

 The other things you mentioned -- sex, sexuality, language, religion, class, etc. -- also are aspects of cultural differences, but I would argue that race is a larger determinant of cultural differences than most of them.  As for why cultural diversity increases social utility, well that gets to the empathy issue -- any institution that seeks to serve the general public would benefit from an understanding of the cultural differences that characterize our country's diverse population.  Any person is capable of empathizing with any other, with enough effort, but it's certainly easier for someone from a minority culture to empathize with the dominant culture than the other way around.  I don't think that racial diversity is being treated as more important than diversity of sex, as Sotomayor will not be the first female supreme court justice, but the fact that she will be the first justice familiar with a culture that is (more or less) shared by about 15 percent of the population is significant.

Another reader adds:

The post by Conor Clarke on the impact and role of affirmative action on the Supreme Court is well taken. But there’s another type of diversity no one seems to care about on the modern bench: diversity of career experience. 6 of the current 8 graduated from Harvard or Yale, and Ginsburg graduated from Columbia AFTER transferring from Harvard. Every last one of the justices came from the federal appellate bench, and nearly all of them clerked for federal judges at the beginning of their careers. The prosecutorial experience is virtually nil. Only Sotomayor will have sat as a trial judge at any point in her career. For the body responsible for ultimately deciding the limits and boundaries of defendants’ rights and criminal prosecution procedures, there is shockingly little experience with the day-to-day work of being a trial attorney.