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:
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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
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presentation of nomination politics will be welcome. It is a step toward further study of the role of minorities in the American
courts.
