February 06, 2017
It was a week to be proud of this thing of ours; of the life we chose. Whether it was lawyers coming to the defense of confused refugees at JFK, an Acting Attorney General standing her ground on what she thought was right or wrong under the law, or a 49-year old Supreme Court nominee standing as the next in the line of storied guardians of all that makes us right and good, lawyers led the way. We may not be the conscience of the country, but we are the custodians of its laws; we may not be right all the time, but we speak our minds while others cower in silence; and when push comes to shove, we will take the rule of law over the mob, the blowhard or the bigot every time. We are lawyers, and we believe.
That being said, what are we to make of this young judge from the west? Most assuredly, he represents a distinct minority on the Court. He is a Protestant (Epsicopalian), and there hasn't been one of those rarities on the Court since Justice Stevens retired in 2010. Of course, had Judge Garland been approved before the prior tenant at 1600 Pennsylvania Avenue moved out, the Protestant Problem would have been solved.
Is religious diversity that important on the Court? Some say not. However, there is something sort of unsettling about a Court composed of only Roman Catholics and Jews. But what about Justices Kagan or Ginsberg? What group do they represent? Women or Jews? Well, let's split the baby and say one is deemed solely Jewish while the other is deemed solely female for diversity purposes.
Justice Breyer is a problem because we've run out of permissible Jews. However, he is married to the daughter of the 1st Viscount Blakenham, so that qualifies him for the British seat, last occupied by 38-year old Justice James Iredell, an Anglican, appointed by Washington in 1790. Now, we're rolling!
We don't care what religion Justice Sotomayor is, because she fills the Hispanic seat. The same goes for Justice Thomas, who fills the black one. With Justice Scalia deceased, Justice Alito fills the Italian-American seat.
That leaves us with Justice Kennedy and the Chief Justice, who are both Roman Catholic. If we give the Roman Catholic seat to Justice Kennedy, what minority does the Chief Justice serve? He was born in Buffalo!
President Obama once said that the smartest political move he could make regarding a Supreme Court appointment was "to nominate an openly gay, Protestant guy." Well, half a loaf is better than none for his successor.
You might notice that despite our day job addressing appellate issues, we rarely review a case on appellate procedure here in MondayMonday. That's because there are very few of such cases reported and, unless they impact trial lawyers, we don't believe MondayMonday has the space to mention them.