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Published online by Cambridge University Press: 24 April 2015
Following the 2006 retirement of Sandra Day O'Connor and the confirmation of Samuel Alito to succeed her, Roman Catholics formed a majority on the United States Supreme Court for the first time in this institution's 210-year history. This Catholic majority was further strengthened by the appointment of Sonia Sotomayor in 2009. Perhaps even more remarkably, by the time of Elena Kagan's first case in October of 2010, not a single Protestant sat on the nation's highest judicial body.
By way of comparison, in 1960 the Court consisted of seven Protestants, one Catholic and one Jew; in 1985, eight Protestants and one Catholic sat on the Court. This phenomenon is further reflected in judicial appointments. Since 1985, only one Protestant has been appointed,4 Justice David Souter, compared to seven Catholics and three Jews. The prima facie reason for this transformation is simple: President Reagan began the Protestant erosion by appointing two Catholics; George H.W. Bush followed by appointing a Catholic; and Bill Clinton, George W. Bush, and Barack Obama chose only Jewish and Catholic nominees. The deeper reasons, which are considerably more complex, are the focus of this article.
1. See Capecchi, Christina, Alito Confirmed Gives Court Catholic Majority, Impact Remains Yet Unclear, Catholic Online, 01 31, 2006, http.7/www.catholic.org/national/national_story.php?id=18523Google Scholar.
2. Ransom v. FIA Card Services, 131 S. Ct. 716 (2011).
3. See Adherents.com, Religious Affiliation of the U.S. Supreme Court, http://www.adherents.com/adh_sc.html (last visited Dec. 7, 2011) [hereinafter Religious Affiliation].
4. Id. (last visited Dec. 7, 2011).
5. Khan, Huma, Could Elena Kagan's Confirmation Signal End of Protestant Era on the on the Supreme Court?, ABC News, 05 11, 2011, http://abcnews.goxom/Politics/Supreme_Court/elena-kagans-confirmation-supreme-court-protestantjusticestime/story?id=10605688#.Tsm0sMOBqU8Google Scholar.
6. See JTA, Pat Buchanan Slams Obama Over Kagan, Jewish Chron., 05 16, 2010, http://www.jta.org/news/article/2010/05/16/2394825/pat-buchanan-slams-obama-over-kaganGoogle Scholar.
7. Hahn, Heather, Catholic-Jewish Court Sign of Change, Umc.Org, 05 12, 2010, http://www.umc.org/site/apps/nlnet/content3.aspx?c=lwL4KnNlLtH&b=2789393&ct=8386687Google Scholar.
8. See Weaver, Carolyn, Pioneering US Supreme Court Justice Wants More Women, Diversity on Court, Voice of America News, 04 6, 2010, http://www.voanews.com/english/news/usa/Pioneering-US-Supreme-Court-Justice-Wants-More-Women-Diversity-on-Court-90049422.htmlGoogle Scholar.
9. Lithwick, Dahlia, Why Americans Can't Talk About Religion on the Supreme Court, Slate, 12 10, 2009, http://www.slate.com/id/2238088/Google Scholar. This appears to have some empirical backing. According to a recent poll, 70% of Americans expressed that having a Protestant justice does not matter, with 27% saying it does. Among Protestants this was split more evenly, with 57% saying it matters and 39% saying it does not. Perhaps most relevant was among Republicans, 41% of whom thought it matters. See Barnes, Robert & Agiesta, Jennifer, Poll Affirms a Vote for Judicial Know-How, Wash. Post, 04 30, 2010, at A2Google Scholar, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/04/29/AR2010042904893.html.
10. Posting of Julia Neuberger to Washington Post On Faith Blog, http://newsweek.washingtonpost.com/onfaith/panelists/julia_neuberger/2010/05/i_do_not_believe_religion.html (May 14, 2010, 08:18 EST).
11. Stone, Geoffrey R., Our Faith-Based Justices, Huffington Post (04 20, 2007), http://www.huffingtonpost.com/geoffrey-r-stone/our-faithbased-justices_b_46398.htmlGoogle Scholar.
12. Id.
13. See Biskupic, Joan, American Original: the Life and Constitution of Supreme Court Justice Antonin Scalia 204 (Sarah Crichton Books 2009)Google Scholar.
14. Liptak, Adam, Stevens, The One and Only…, N.Y. Times, 04 11, 2010, at WK 4Google Scholar.
15. Barnes, Robert, High Court: Does Religion Still Matter?, Wash. Post, 03 8, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/03/07/AR2010030702705.html?sid=ST2010030702745Google Scholar; see, e.g., Lithwick, supra note 9.
16. Lithwick, supra note 9.
17. Hahn, supra note 7.
18. See Religious Affiliation, supra note 3.
19. For those who are curious, this was Associate Justice David Davis, who served from 1862-77.
20. See Religious Affiliation, supra note 3.
21. Wikipedia, Demographics of the Supreme Court of the United States, http://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_States (last visited Dec. 7, 2011).
22. See McHargue, Daniel S., Sectional Representation on the Supreme Court, 35 Marq. L. Rev. 14 (1951)Google Scholar.
23. See Peg Hill, Anti-Immigrant and Anti-Catholic Feeling in America: Historical Background, http://score.rims.k12.ca.us/score_lessons/nativism/pages/historical_bg.html (last visited Dec. 7, 2011).
24. Perry, Barbara, The Life and Death of the “Catholic Seat” on the United States Supreme Court, 6 J.L. & Politics 55, 57–58 (1998–2000)Google Scholar.
25. See Hill, supra note 23.
26. See generally, Lewis, Walker, Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney (Houghton Mifflin Co. 1965)Google Scholar.
27. See Perry, supra note 24, at 58.
28. Id. at 59.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id. at 60.
34. Id.
35. See generally, Huebner, Timothy S., The Taney Court: Justices, Rulings, and Legacy (ABC-CLIO 2003)Google Scholar.
36. See Webb, James H., Born Fighting: How the Scots-Irish Shaped America 183 (Broadway Books 2004)Google Scholar.
37. See Irish Identity, Influence, and Opportunity, Library of Congress: Irish, http://www.loc.gov/teachers/classroommaterials/presentationsandactivities/presentations/immigration/irish7.html (last visited Dec. 7, 2011) (“Building on principles of loyalty to the individual and the organization, [the Irish] built powerful political machines capable of getting the vote.”).
38. See Perry, supra note 24, at 61.
39. Id.
40. Id. at 63.
41. Id. at 64.
42. Id. at 65.
43. Id. at 66.
44. Id. at 68 (Senators who opposed McKenna's Catholicism ultimately “abandoned their stance for fear that any legitimate opposition would be undermined by a prolonged religious controversy …”).
45. See Pratt, Walter F. Jr., The Supreme Court Under Edward Douglass White 1910-1921, at 4-5 (Univ. S.C. Press 1999)Google Scholar.
46. See Perry, supra note 24, at 70.
47. Id.
48. See Pratt, Jr., supra note 45, at 5-6.
49. Perry, supra note 24, at 73.
50. Id. at 73-74.
51. Id. at 74.
52. See Heyer, Kristin E., Rozell, Mark J. & Genovese, Michael A., Catholics and Politics: The Dynamic Tension Between Faith and Power 161 (Georgetown Univ. Press 2008)Google Scholar.
53. See Perry, supra note 24, at 76 (quoting Sydney Fine, one of Murphy's biographers: “Roosevelt was anxious to provide suitable recognition of the substantial Catholic element in the Democratic party, and a major appointment for Frank Murphy nicely served this objective.”).
54. Id. at 75.
55. See Heyer, Rozell, & Genovese, supra note 52, at 162.
56. See Perry, supra note 24, at 76.
57. Id. at 80 (“Upon Justice Murphy's death in 1949, President Harry S. Truman nominated a Protestant, Tom C. Clark, and stated defiantly: ‘I do not believe religions have anything to do with Supreme Court. If an individual has the qualifications, I do not care if he is a Protestant, Catholic, or Jew.’”).
58. Id.
59. Id. at 81.
60. See Stern, Seth & Wermiel, Stephen, Justice Brennan: Liberal Champion 71 (Houghton Mifflin Harcourt 2010)Google Scholar.
61. Perry, supra note 24, at 84.
62. Id. at 85.
63. See Yalof, David Alistair, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees 75 (Univ. Chi. Press 1999)Google Scholar.
64. In late 2005 there occurred two absences at once. As Chief Justice Rehnquist suddenly passed away only three months after, Justice Sandra Day O'Connor retired.
65. Wikipedia, Demographics of the Supreme Court of the United States, http://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_States (last visited Dec. 7, 2011).
66. See Rosen, Robert N., The Jewish Confederates 62 (Univ. S.C. Press 2000)Google Scholar.
67. Id.
68. Id. at 69 (Escaping the country after the War dressed as a woman, Benjamin eventually became a successful lawyer in England.).
69. See Urofsky, Melvin, Louis Brandeis: A Life 110 (Pantheon Books 2009)Google Scholar.
70. Id. at 371.
71. Id. at 440.
72. Id.
73. fee Kaufman, Andrew L., Cardozo 455 (Harv. Univ. Press 1998)Google Scholar.
74. Id. (though there was some early concern anti-Semitism might surface).
75. See Urofsky, supra note 69, at 477.
76. See Baker, Liva, Felix Frankfurter 89 (Coward-McCann 1969)Google Scholar.
77. See Irons, Peter, A People's History of the Supreme Court 327 (Viking Press 1999)Google Scholar.
78. Id. at 168 (as a law professor at Harvard, Frankfurter supplied Brandeis and Cardozo with law clerks).
79. See Stebenne, David, Arthur J. Goldberg: New Deal Liberal 312 (Oxford Univ. Press 1996)Google Scholar.
80. See Goldman, Sheldon, The Politics of Appointing Catholics to the Federal Court, 4 Univ. St. Thomas L.J. 193, 200 (2006–2007)Google Scholar (Robert Kennedy admitted the seat was “going to come to a Jew,” though “even if the Jewish aspect of it hadn't been involved, Arthur Goldberg would have been high on the list of lawyers … considered.”).
81. Id. at 390.
82. See Kalman, Laura, ABE Fortas: A Biography 65 (Yale Univ. Press 1992)Google Scholar.
83. Id. at 374.
84. Nixon was even advised by conservative columnist James J. Kilpatrick that appointing Jews would look like a “form of reverse discrimination” to his Republican base. See Yalof, supra note 63, at 105.
85. See Podhoretz, Norman, Why are Jews Liberals?, Wall St. J., 09 10, 2009, at A23, available at http://online.wsj.com/article/SB10001424052970203440104574402591116901498.htmlGoogle Scholar (“Since 1928, the average Jewish vote for the Democrat in presidential elections has been an amazing 75%—far higher than that of any other ethno-religious group.”).
86. In other words, future justices' religion had nothing to do with their availability or selection, and it is therefore entirely coincidental that everyone on the current Court is either Catholic or Jewish.
87. See Goldman, supra note 80, at 218.
88. I chose to review the 1960, 1985, and 2010 Courts since these intervals offer three discrete glimpses into Supreme Court history. The 1960 Court was religiously typical of the twentieth century, containing seven Protestants, one Catholic, and one Jew; 1985 was shortly before Antonin Scalia, the Court's current oldest member, was nominated; and the current Court marks the first government branch in American history that includes no Protestants.
89. Why this is so lies well beyond the current article's scope.
90. Information obtained from The Supreme Court Database, http://scdb.wustl.edvi/ (last visited Dec. 7, 2011) (this database gives the background information and voting records of all the justices who served from 1953 to 2008); the justices' religious information was available at Religious Affiliation, supra note 3.
91. This data was gathered from 3 primary sources: All information from 1801-2000 came from Professor Gerard S. Gryski (Auburn University) who emailed me his extensive data set on circuit court judges (many pieces which are publicly available at http://www.icpsr.umich.edu/icpsrweb/ICPSR/) (e-mail received on Apr. 22, 2011) (on file with author); (e-mail received on Apr. 18, 2011 (on file with author)); and finally, all remaining circuit court information was obtained from the website NNDB (last visited Dec. 7, 2011). All three strands of data were then compiled and combined into a larger database.
92. This includes adherents to the Church of Latter-Day Saints, who are generally considered Protestant, although not without some controversy. See, e.g., Religious Tolerance.org, Are they Christians?, http://www.religioustolerance.org/ldswho.htm, (last visited Dec. 7, 2011).
93. During this period the rate of judicial appointments increased significantly, and it therefore becomes more helpful to evaluate decade by decade.
94. This analyses ends in 2009 rather than 2010 due to the lack of available reliable data for the latter year, much of which is still being collected.
95. Unsurprisingly, this varied considerably by geographical location. Whereas the diverse 3d Circuit (representing New Jersey, Delaware, and Pennsylvania) contained three Protestants, two Catholics, and two Jews, the 5th (representing Louisiana, Mississippi, and Texas) and 10th (representing Kansas, Colorado, New Mexico, Oklahoma, Utah, and Wyoming) circuits were composed entirely of Protestants.
96. This excludes the eleven judges on the Federal Circuit, whose information is not publicly available.
97. Again, this varied considerably by geography; while Protestants held a majority in most circuits, they were outnumbered by Catholics in the 3d, 7th (representing Illinois, Indiana, and Wisconsin) and 10th circuits, and by both Catholics and Jews in the 1st circuit (representing Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island).
98. This again excludes the eleven Federal Circuit judges, whose information is not publicly available.
99. The 3d, 7th, and 10th circuits were again dominated by Catholics, with the 1st circuit containing more Catholic and Jewish than Protestant judges.
100. If this hypothesis were valid, the Supreme Court should consist of a bare majority of Protestants.
101. Notably, four justices have come from the D.C. Circuit alone, and perhaps this can shed some additional light on Protestants' absence from the high court. In 1960, the D.C. Court consisted of five Protestants, two Catholics and one Jew; in 1985, four Protestants, three Catholics, three Jews and one unknown; and in 2009, four Protestants, two Catholics and three Jews. While the overrepresentation of Jews is interesting to note here, Protestants still form a Court plurality.
102. See, e.g., Kerr, Orin, Why Catholics and Jews?, The Volokh Conspiracy, 05 14, 2010, http://volokh.com/2010/05/14/why-catholics-and-jews/Google Scholar.
103. See Cochran, Robert F. Jr., Catholic and Evangelical Supreme Court Justices: A Theological Analysis, 4 U. St. Thomas L.J. 296, 298 (2006–2007)Google Scholar.
104. Id.
105. See, e.g., Shellnut, Kate, “Social Justice” More than a Buzzword in Judaism, Houston Chron., 10 7, 2010, http://www.chron.com/disp/story.mpl/life/religion/7236938.htmlGoogle Scholar.
106. See Biskupic, supra note 13, at 22 (describing Scalia's devotion to Catholicism from high school until the present day).
107. Id. at 187.
108. Id. at 40-41.
109. Id.
110. See Biskupic, supra note 13, at 107.
111. Id. at 34-36.
112. Id. at 73-74.
113. Id. at 78.
114. Id. at 144.
115. See Yalof, supra note 63, at 146 (“A thorough search of Scalia's judicial record uncovered not a single opinion in which either the result or the ground of decision seemed problematic from a conservative point of view.”).
116. Id. at 107; see Yalof, supra note 63, at 155; Steinfels, Margaret O'Brien, Catholicism and the Court: The Relevance of Faith Traditions In Jurisprudence, 4 U. St. Thomas L.J. 166, 170(2006)Google Scholar.
117. See Yalof, supra note 63, at 153.
118. Id.
119. See Goldman, supra note 80, at 201. (“It would appear that religious affiliation of potential Supreme Court nominees was simply irrelevant as long as their real politics was in line with the President's.”).
120. See Biskupic, supra note 13, at 107.
121. See Miller, Robert T., Antonin Scalia: Not a Catholic (Judge), First Things, 10 23, 2007, http://www.firstthings.com/on_the_square_entry.php?year=2007&month=10&title_link=antonin-scalia-not-a-catholic-Google Scholar.
122. See Biskupic, supra note 13, at 107; History.com, Ronald Reagan on Roe v. Wade, http://www.history.com/audio/ronald-reagan-on-roe-v-wade#ronald-reagan-on-roe-v-wade (last visited Dec. 7, 2011).
123. Id.
124. See Yalof, supra note 63, at 146.
125. A fact Senator Joseph Biden, head of the Senate Judiciary Committee, admittedly came to regret. See Biskupic, supra note 13, at 121.
126. See Burton, Danielle, 10 Things You Didn't Know About Anthony Kennedy, U.S. News, 10 1, 2007, http://www.usnews.com/news/national/articles/2007/10/01/10-things-you-didnt-know-about-anthony-kennedyGoogle Scholar.
127. See Religion and the Court, Wall St. J., 10 11, 2005, http://online.wsj.com/article/SB112899231097265100.html?mod=opinion_main_review_and_outlooksGoogle Scholar.
128. Yalof, supra note 63, at 161-64.
129. Id. at 161.
130. Id. at 164; see generally, Bronner, Ethan, Battle for Justice: How the Bork Nomination Shook America (Union Square Press 2007)Google Scholar.
131. See Yalof, supra note 63, at 164 (“The [initial] feelings of anger and vindictiveness over Bork's defeat had turned into feelings of outright embarrassment.”).
132. Id. at 165.
133. Id.
134. See Perry, supra note 24; Goldman, supra note 80, at 201 (“There is no evidence that Kennedy's Catholicism played a role in his selection.”).
135. See Perry, supra note 24, at 89; Goldman, supra note 80, at 201 (“the religious affiliation of potential Supreme Court nominees was simply irrelevant as long as their real politics was in line with the President's.”).
136. See Yalof, supra note 63, at 164 (Undoubtedly letting out much of the bad air during the Bork and Ginsburg debacles).
137. Id.
138. See Encyclopedia of World Biography, Clarence Thomas Biography, http://www.notablebiographies.com/St-Tr/Thomas-Clarence.html (last visited Dec. 7, 2011).
139. Thomas was reportedly ashamed of the Church's partial rejection of the Civil Rights movement and occasional vitriol towards Martin Luther King, Jr. See Wapshott, Nicholas, Justice Thomas's Remarks May Impact Race in 2008, N.Y. Sun, 10 1, 2007, http://www.nysun.com/national/justice-thomass-remarks-may-impact-race-in-2008/63660/Google Scholar.
140. See Steinfels, supra note 116, at 171.
141. Id.
142. See Adherents.com, The Religious Affiliation of Supreme Court Justice Clarence Thomas, http://www.adherents.com/people/pt/Clarence_Thomas.html (last visited Dec. 7, 2011).
143. See Steinfels, supra note 117, at 171.
144. Thomas grew up in the Deep South.
145. See Yalof, supra note 63, at 190.
146. Id. at 193.
147. Id.
148. See, e.g., Merida, Kevin & Fletcher, Michael, Supreme Discomfort: The Divided Soul Of Clarence Thomas 200 (Broadway Books 2008)Google Scholar.
149. Id. at 20.
150. See Posting of Howard Friedman to Religion Clause Blog, http://religionclause.blogspot.com/2006/02/justice-ginsburgs-relation-to-her.html (Feb. 16, 2006, 07:00 EST).
151. Id.
152. See Stephanopoulos, George, All Too Human: A Political Education 168 (Little, Brown & Co. 1999)Google Scholar.
153. Id.
154. Also included on this list was the blind lawyer David Tatel, and Joseph Cabranes, a Hispanic federal district court judge.
155. Id. at 169.
156. Id.
157. See Yalof, supra note 63, at 200; Biskupic, Joan, Martin Ginsburg, Justice's Husband Dies, Usa Today, 06 28, 2010Google Scholar, at A5, available at http://www.usatoday.com/news/washington/judicial/2010-06-27-ginsburg_N.htm.
158. Ginsburg, Justice Ruth Bader, From Benjamin to Brandeis to Breyer: Is There A Jewish Seat?, 41 Brandeis L.J. 229, 235 (2002)Google Scholar.
159. See Yalof, supra note 63, at 201 (“The fact that Ginsburg was Jewish … was barely a factor in the decisionmaking calculus.”).
160. See Hearing of Ruth Bader Ginsberg, to be Associate Justice of the Supreme Court of the United States: Before the S. Comm. on the Judiciary, 103rd Cong. (1994)Google Scholar, available at http://www.gpoaccess.gov/congress/senate/judiciary/sh103-482/browse.html.
161. See Yalof, supra note 63, at 202.
162. See PBS.org. Biographies of the Robe: Stephen Gerald Breyer, http://www.pbs.org/wnet/supremecourt/future/robes_breyer.htm (last visited Dec. 7, 2011).
163. See Hearing on Nomination of Stephen G. Brey er to be an Associate Justice of the Supreme Court of the United States: Before the S. Comm. on the Judiciary, 103d Cong. (1995)Google Scholar, available at http://www.gpoaccess.gov/congress/senate/judiciary/shl03-715/browse.html.
164. See Oyez.org, Stephen G. Breyer, http://www.oyez.org/justices/stephen_g_breyer (last visited Dec. 7, 2011).
165. See Toobin, Jeffrey, The Nine: Inside the Secret World of the Supreme Court 66 (Doubleday 2007)Google Scholar.
166. Id.
167. See Stephanopoulos, supra note 152, at 153; YALOF, supra note 63, at 204 (Breyer had also evoked some criticism by apparently failing to pay social security taxes on a home employee years before).
168. See Yalof, supra note 63, at 205.
169. See Neikirk, William & Elsasser, Glen, Clinton Selects Brey er For High Court, Chi. Trib., 05 14, 1994, http://articles.chicagotribune.com/1994-05-14/news/9405140082_1_stephen-breyer-justice-arthur-goldberg-justice-departmentGoogle Scholar.
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171. See Lopez, Kathryn Jean, John Roberts's Catholic Education, Nat'L Rev. Online, 04 25, 2007, http://www.nationalreview.com/bench-memos/51672/john-robertss-catholic-education/kathryn-jean-lopezGoogle Scholar.
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174. Rosen, Jeffrey, Can Bush Deliver a Conservative Court?, N.Y. Times, 11 14, 2004, http://www.nytimes.com/2004/11/14/weekinreview/14jeff.htmlGoogle Scholar.
175. See, e.g., Gonzales Nomination Angers Abortion Foes, CNN, 11 11, 2004, http://articles.cnn.com/2004-11-11/politics/bush.cabinet_1_gonzales-nomination-abortion-foes-troy-newman?_s=PM:ALLPOLITICSGoogle Scholar.
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177. See Jost, Kenneth, Privacy, Precedents Dominate Roberts Session, NPR, 09 13, 2005, http://www.npr.org/templates/story/story.php?storyId=4845368Google Scholar.
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179. See Hitchens, Christopher, Catholic Justice: Quit Tiptoeing Around John Roberts' Faith, Slate, 08 1, 2005, http://www.slate.com/id/2123780/Google Scholar.
180. Id.
181. See Horwitz, Paul, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations, 15 Wm. & Mary Bill Rts. J. 75, 86 (2006)Google Scholar.
182. See Press, Bill, Does a Catholic belong on the Supreme Court?, Progresso Weekly, 08 4, 2005, http://www.progresoweekly.com/index.php?progreso=Bill_Press&otherweek=11123563600Google Scholar.
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185. See Posting of Maurice Timothy Reidy to Beliefnet, http://www.freerepublic.com/focus/f-religion/1519707/posts (Nov. 10, 2005, 03:13 EST) (discusses this Church's more progressive liturgical practices).
186. See Adherents.com, The Religious Affiliation of Supreme Court Justice Samuel Alito, http://www.adherents.com/people/pa/Samuel_Alito.html (last visited Dec. 7, 2011).
187. See Adherents.com, The Religious Affiliation of Harriet Miers, http://www.adherents.com/people/pm/Harriet_Miers.html (last visited Dec. 7, 2011).
188. See House, White, Information on Harriet Miers (2005)Google Scholar, available at http://usgovinfo.about.com/od/uscourtsystem/a/miersbio.htm.
189. See Lithwick, Dahlia, Diversity Jurisdiction: Do We Really Need a Woman or Minority to Fill O'Connor's Shoes?, Slate, 09 8, 2005, http://www.slate.com/id/2125898/Google Scholar.
190. See Posting by Andrea Lafferty to The Hill's Congress Blog, http://thehill.com/blogs/congress-blog/judicial/106467-harriet-miers-faced-the-gauntlet-while-kagan-skates-on-by (June 30, 2010, 01:29 EST).
191. See Transcript: Conservatives Debate Miers' Nomination, Fox News, 10 10, 2005, http://www.foxnews.com/story/0,2933,171680,00.htmlGoogle Scholar.
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197. Id.
198. See Alito Rejected Abortion as a Right, Wash. Times, 11 14, 2005, available at http://www.washingtontimes.com/news/2005/nov/14/20051114-015136-2101r/Google Scholar.
199. See Gordon, Robert, Alito or Scalito?, Slate, 11 1, 2005, http://www.slate.com/id/2129107/Google Scholar.
200. One notable exception occurred when Alito was pointedly asked if he was a “racist” by Senator Graham, following Senator Edward Kennedy's remarks that Alito had belonged to a Princeton group opposing minority admissions. This exchange apparently prompted Alito's wife to flee from the hearing in tears. See Marlantes, Liz, Alito Grilling Gets Too Intense for Some, ABCNews.com, 01 11, 2005, http://abcnews.go.com/WNT/SupremeCourt/story?id=1495804Google Scholar.
201. Alito's responses to questions about Roe were ambiguous. See Goldstein, Amy & Babington, Charles, Alito Leaves Door Open to Reversing Roe, Wash. Post, 01 12, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/01/11/AR2006011101120.htmlGoogle Scholar.
202. See Analysis of Day Four of Alito Hearings, NPR.com (01 12, 2006), http://www.npr.org/templates/story/story.php?storyId=5152048Google Scholar.
203. See Kellman, Laurie, Alito Heads Toward Confirmation Despite Challenges, USA Today, 01 13, 2006, http://www.usatoday.com/news/washington/2006-01-13-alito_x.htmGoogle Scholar.
204. See Goldman, supra note 80, at 202 (“Although both Roberts and Alito are Roman Catholics, there is no indication in the public record that their Catholicism played a role in their selection”).
205. See Zapor, Patricia, Obama Nominates New York Latino to Supreme Court, Cath. News. Serv., 05 26, 2009, http://www.catholicnews.com/data/stories/cns/0902392.htmGoogle Scholar.
206. See Ertelt, Steven, Catholic Pro-Life Group Notes Hypocrisy on Faith, Sotomayor Supreme Court Nod, Lifenews.Com, 06 27, 2009, http.//www.lifenews.com/2009/05/27/nat-5097/Google Scholar.
207. See Stohr, Greg, Obama, McCain Would Look to Women, Hispanics for Supreme Court, Bloomerg, 07 15, 2008, http://www.bloomberg.com/apps/news?pid=newsarchive&sid=analt7SXDKiQ&refer=homeGoogle Scholar.
208. See, e.g., Rosen, Jeffrey, The Case Against Sotomayor: Indictments of Obama's Front-Runner to Replace Souter, New Republic, 05 4, 2009, http://www.tnr.com/article/politics/the-case-against-sotomayorGoogle Scholar (“The most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench,’ as one former Second Circuit clerk for another judge put it… Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees.”).
209. Some contend the Court's first Hispanic was Benjamin Cardozo, a Sephardic Jew of Portuguese origins. Most reject this, however, arguing the term was neither then in vogue nor should White Europeans be included in this ethnic category. See, e.g., Passel, Jeffrey & Taylor, Paul, Is Sotomayor the Court's First Hispanic?, Pew Research Ctr. Pubs., 05 28, 2009, http://pewresearch.org/pubs/1238/sotomayor-supreme-court-first-hispanicGoogle Scholar.
210. Sotomayor's ‘Wise Latina’ Comment a Staple of her Speeches, CNN.com 06 5, 2009, http://articles.cnn.com/2009-06-05/politics/sotomayor.speeches_1_sotomayor-s-confirmation-sotomayor-supporters-judge-sonia-sotomayor?_s=PM:POLITICSGoogle Scholar.
211. Id.
212. Posting of N.Y. Times Staff to The N.Y. Times caucus Blog, http://thecaucus.blogs.nytimes.com/2009/05/29/white-house-judge-sotomayor-acknowledges-poor-word-choice/ (May 29, 2009, 04:34 EST).
213. ‘The Empathy’ Nominee: Is Sonia Sotomayor Judicially Superior to ‘a White Male’?, Wall St. J., 05 27, 2009, http://online.wsj.com/article/SB124338457658756731.htmlGoogle Scholar (“Republicans can use the process (Sotomayor's confirmation hearings) as a teaching moment… to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record.”).
214. See Transcript of the Sotomayor Confirmation Hearings, Before the S. Comm. on the Judiciary, 111th Cong. (07 13, 2009)Google Scholar, available at http://epic.org/privacy/sotomayor/sotomoyor_transcript. See also Ricci v. DeStefano, 554 F. Supp. 2d 142 (D. Conn. 2006).
215. Id.
216. Id. at 23.
217. See Senate Confirms Sonia Sotomayor to U.S. Supreme Court, Fox News, 08 6, 2009, http://www.foxnews.com/politics/2009/08/06/senate-confirms-sonia-sotomayor-supreme-court/Google Scholar.
218. See Tracy, Marc, Kagan Had Synagogue's First Bat Mitzvah: High Court Nominee was at Modern Orthodox Shul, Tablet, 05 13, 2010, http://www.tabletmag.com/scroll/33604/kagan-had-synagogue%E2%80%99s-first-bat-mitzvah/Google Scholar.
219. See Foderado, Lisa W., Growing Up, Kagan Tested Boundaries of Her Faith, N.Y. Times, 05 12, 2010, http://www.nytimes.com/2010/05/13/nyregion/13synagogue.htmlGoogle Scholar.
220. Id.
221. Id.
222. See generally Baker, Peter & Zeleny, Jeff, Obama Picks Kagan as Justice Nominee, N.Y. Times, 05 9, 2010, http://ww.nytimes.com/2010/05/10/us/politics/10court.htmlGoogle Scholar.
223. See Rosen, Jeffrey, At Center Court; Can Kagan Be a Consensus Builder?, Time, 05 13, 2010, http://www.time.com/time/nation/article/0,8599,1988976,00.htmlGoogle Scholar (“If Republicans were already trying to paint Kagan as too liberal, some Democrats wondered whether she might be too centrist”).
224. See Bazelon, Emily, Untired, Untested, and Ready: Elena Kagan's Youth and Judicial Inexperience Recommend her for the Supreme Court, Slate, 05 10, 2010, http://www.slate.com/id/2253302/Google Scholar.
225. See Lord, Jeffrey, The Socialist Judge: Elena Kagan and the Teachable Moment, Am. Spectator, 05 12, 2010, http://spectator.org/archives/2010/05/12/the-socialist-judge-elena-kagaGoogle Scholar.
226. See Posting of Adam Shah to Media Matters for America Blog, http://mediamatters.org/blog/201007260023 (July 26, 2010, 11:07 EST).
227. See Walsh, Joan, It's Not Even Coded Bigotry Anymore: The GOP Hits Elena Kagan for Admiring Thurgood Marshall and Hailing from “Manhattan's Upper West Side,”Salon, 06 28, 2010, http://mobile.salon.com/opinion/walsh/politics/2010/06/28/not_even_coded_bigotry_anymore/index.htmlGoogle Scholar.
228. Id.
229. Besser, James, More on Kagan, the Upper West Side and Senatorial Euphemisms, Jewish Week, 07 7, 2010, http://www.thejewishweek.com/blogs/political_insider/more_kagan_upper_west_side_and_senatorial_euphemismsGoogle Scholar.
230. See Stolberg, Sheryl Gay, Praise for an Israeli Judge Drives Criticism of Kagan, N.Y. Times, 06 24, 2010, http://www.nytimes.coni/2010/06/25/us/politics/25kagan.htrnlGoogle Scholar.
231. See Mozgovaya, Natasha, U.S. Supreme Court Nominee Elena Kagan: Israel Means a Lot to Me, Haaretz, 06 29, 2010, http://www.haaretz.com/jewish-world/u-s-supreme-court-nominee-elena-kagan-israel-means-a-lot-to-me-1.299049Google Scholar.
232. See Mears, Bill, Witnesses Offer Support, Opposition to Kagan as Hearing Concludes, Cnn, 07 1, 2010, http://articles.cnn.com/2010-07-01/politics/pol.senate.supreme.court_1_elena-kagan-military-recruiters-dean-kagan?_s=PM:POLITICSGoogle Scholar.
233. See Associated Press, Kagan Confirmed as Supreme Court Justice: Senate Votes 63-37 to Approve Fourth Woman Ever to Serve on the Court, MSNBC.com, 08 5, 2010, http://www.msnbc.msn.com/id/38570191/ns/politics-supreme_court/t/kagan-confirmed-supreme-court-justice/Google Scholar.
234. The reasons for this have been debated ad nauseam. See Burstein, Paul, Jewish Educational and Economic Success in the United States: A Search for Explanations, 50 Sociological Perspectives 209 (2007) (for a sociological exploration of this matter)CrossRefGoogle Scholar.
235. See Krieger, Hilary Lelia, Jewish Woman for US Supreme Court, Jerusalem Post, 05 11, 2010, http://www.jpost.com/International/Article.aspx?id=175213Google Scholar. (“Mikva, whom Kagan praised in her remarks upon being nominated Monday, also told The Jerusalem Post how her sense of Jewishness connected to her work: ‘Her yiddishkeit, as I call it, informs her views on social justice and compassion and understanding what law is about,’ he said. ‘We the Jews invented the law, and it's only fitting that someone of Jewish heritage would fall in love with the law and make it a career.’”).
236. Judge Diane Wood is one example.
237. Gerhardt, Michael J., Why the Catholic Majority on the Supreme Court May Be Unconstitutional, 41 U. St. Thomas L.J. 173, 184 (2006)Google Scholar.
238. Bork, interestingly enough, has converted to Catholicism. See Drake, Tim, Judge Bork Converts to the Catholic Faith, Nat'l Cath. Reg., 07 20-26, 2003, http://www.catholiceducation.org/articles/catholic_stories/cs0048.htmlGoogle Scholar.
239. See Kerr, supra note 102.
240. As discussed, in Bork's case, this may have actively worked against him.
241. See, e.g., Pearce, Russell G., Reflections on the American Jewish Lawyer, 17 J.L. & Religion 179 (2002)CrossRefGoogle Scholar.
242. The majority of African Americans are Baptist. See BlackDemographics.com, African American Religion, http://www.blackdemographics.com/religion.html (last visited Dec. 7, 2011).
243. See Cqpress.com, Politics and the Court, http://www.cqpress.com/incontext/supremecourt/politics_and_the_court.htm (last visited Dec. 7, 2011) (“Richard Nixon was pursuing his ‘southern strategy’ in 1971 when he chose Lewis F. Powell Jr., a Richmond, Virginia, lawyer and a nominal Democrat.”).
244. See Bernstein, David, Why Jews and Catholics on the Supreme Court?, The Volokh Conspiracy, 05 14, 2011, http://volokh.com/2010/05/14/why-jews-and-catholics-on-the-supreme-court/Google Scholar.
245. See The Pew Forum on Religion and Public Life, U.S. Religious Landscape Survey, http://religions.pewforum.org/maps (last visited Dec. 7, 2011).
246. Id.
247. See Thomas, Clarence, My Grandfather's Son: A Memoir 84 (Harper 2007)Google Scholar.
248. See Oyez.org, supra note 164.
249. Bernstein, supra note 244.
250. Why this is has naturally engendered a great deal of debate. For one summary of this matter, see Glen, Patrick J., Harvard and Yale Ascendant: The Legal Education of Justices from Holmes to Kagan, 58 Ucla L. Rev. Discourse 129 (2010)Google Scholar.
251. See Karabel, Jerome, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton 536 (Houghton Mifflin 2006)Google Scholar.
252 Bernstein, supra note 244.
253 See Shemtob, Zachary, Supreme Convolution: Gregg v. Georgia and the Nature of Judicial Decision Making (unpublished Ph.D. dissertation, City University) (on file with author)Google Scholar.
254. See U.S. Census Bureau, Historical Census Statistics on Population Totals By Race, 1790 to 1990, http://www.census.gov/population/www/documentation/twps0056/twps0056 (last visited Dec. 7, 2011).
255. See U.S. Census Bureau, 2010 Census Shows Nation's Hispanic Population Grew Four Times Faster Than Total U.S. Population, http://2010.census.gov/news/releases/operations/cb11-cn146.html (last visited Dec. 7, 2011).
256. See, e.g. Becker, Bernie, Justices List Their Assets; Wide Range of Wealth, N.Y. Times, 06 7, 2008, http://www.nytimes.com/2008/06/07/washington/07scotus.htmlGoogle Scholar. Even after Justice Thomas received more than $1 million in advances for his memoir, he still ranked among the least wealthy members of the Court.
257. This is an absurd scenario, of course, but that is the advantage of hypotheticals.
258. Goldman, supra note 80, at 218.
259. This seems unlikely anytime soon, but one never knows.