Nominees for the Supreme Court never diverse

Published 10:14 am Wednesday, July 15, 2009

By By Steve Flowers
Several of you after reading last week’s column took issue with President Obama’s appointment of Sonia Sotomayor to the Supreme Court for political reasons. As I mentioned last week, it is a political appointment and has always been a political appointment. It is the President’s prerogative to choose his nominee. We elected a liberal President of the United States. He is destined to pick a liberal for the Supreme Court.
Choices have been made for political reasons throughout our history. Obama’s choice of a Hispanic woman is an astute political decision. The largest growing segment of the electorate is Hispanic women. Sotomayor is a perfect political choice by Obama.
Picking justices based on their diversity is as old as the Supreme Court and country itself. In the 18th century they were chosen based on region. In the 19th century they were selected based on religious or denominational differences. In 1836 Andrew Jackson chose Roger Taney to be the first Catholic throughout that century. In 1916 Woodrow Wilson nominated Louis Brandeis, which became the Jewish seat on the Court. It was only later that Lyndon Johnson appointed the first African American Justice, Thurgood Marshall, in 1967. It was 1981 before the first female was appointed to the Court when Ronald Reagan appointed Sandra Day O’Conner to the high tribunal.
In the grand scheme of things there has not really been that much diversity on the Supreme Court. In the history of the Court white males have constituted 106 of the 110 individuals who have served on the Court. If Sotomayor is confirmed, there will be six Catholics on the nine member Court. In general terms four of the justices are described as liberal and four are considered conservative. There is one pivotal swing vote on the Court. Sotomayor will replace a liberal Souter. Therefore, she does not really change the direction of the Court. In fact, the Court seems to be veering to the right.
A case that has been closely watched in Alabama was heard last month. The Supreme Court decided that a provision of the Voting Rights Act of 1965 is still needed to protect minority voters. It was the most significant election case challenge since Bush v. Gore. The case concerns the law’s requirement that certain state and local governments, mostly in the South, must obtain permission or clearance from the Justice Department or a federal court before making any changes affecting voting.
Alabama has been subjected to this law for the past four decades. It is cumbersome and expensive. It is generally considered an act of vengeance and punishment to the Deep South by Lyndon Johnson for voting for Goldwater in 1964 when he carried the rest of the nation. It was widely known that there never lived a more vengeful and punitive politician than Lyndon Johnson. Nobody in Washington dared to cross Lyndon.
The Supreme Court upheld the pre-clearance requirement in 1966. Congress has repeatedly extended the law and most recently for 25 years in 2006. The Court’s decision on June 22 is not a clear cut verdict. In a narrow ruling the Court kept intact special scrutiny for certain state’s changes in election rules. However, the ruling allows for certain cities and counties that can show low propensity or ability to discriminate can get opted out of the law.
The justices left the door open for a good many counties and jurisdictions to get removed from the shackles of the Voting Rights Act. Chief Justice John Roberts, writing for the majority, said, “Things have changed in the South.” The justices all agreed that in practicality voting discrimination is a thing of the past in the South. Although, they refused to rule that the pre-clearance requirement unconstitutional.
Gov. Riley submitted a brief on behalf of Alabama arguing that the law is no longer needed. He argued that it is obsolete, expensive and obtrusive. The Supreme Court came close to agreeing with the Governor, but not entirely. They left open the option for individual governments to be removed from the Voting Rights Act.
See you next week.
Steve Flowers is Alabama’s leading political columnist. His column appears weekly in 75 Alabama newspapers. Steve served 16 years in the State Legislature. He may be contacted at

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