Posted by: Patrick Allen Foster | January 9, 2014

Demographics of Supreme Court Justices, Redux

CatholicAppealsJudgesGraph1

A community of Roman Catholic nuns, the Little Sisters of the Poor, who run nursing homes in Colorado and a number of other states, have filed suit to obtain exemption from some requirements of the Affordable Care Act related to coverage for contraception. You can read the details of the suit at SCOTUSblog. As part of that suit, the Little Sisters sought a preliminary injunction to bar the feds from enforcing one of the regulations associated with the ACA. The district court in Colorado and the Tenth Circuit in turn denied the motion for an injunction to stay the requirement pending litigation, and the plaintiffs appealed to the Supreme Court for their preliminary injunction. Because this appeal came from the Tenth Circuit, the application for injunction was referred to Justice Sonia Sotomayor (just like the same-sex marriage case from Utah, which is also in the Tenth Circuit). On New Years Eve, Justice Sotomayor granted the temporary injunction.

Justice Sotomayor’s injunction inspired a truly mendacious op-ed piece by Jamie Stiehm in U.S. News & World Report, maintaining that Sotomayor, a Catholic, “put her religion ahead of her jurisprudence.” (I know — who knew that U.S. News was still a thing? I thought they were just the college rankings and the like these days.) I’m not inclined to link to the op-ed piece myself, but you can find links and excerpts in Stephen Bainbridge’s post and Eugene Volokh’s post.

I’m not posting this to deconstruct or fisk the Stiehm op-ed; others are covering that. But in the comments to his post, Prof. Volokh points to a paper (from a few years back) by Sheldon Goldman (Dept. of Political Science, Univ. of Massachusetts Amherst), “The Politics of Appointing Catholics to the Federal Courts,” 4 Univ. of St. Thomas L. Rev. 193. The chart at the top of this post, and the chart below, are both built from data in Table 2 of Goldman’s paper.

I’ve observed in a previous post that the Supreme Court currently consists of three Jewish justices and six Catholic justices. There have been no Protestants on the Court since Justice Stevens retired in 2010. This is historically unusual; indeed, the current period is the first time in American history that the Supreme Court has consisted entirely of Catholics and Jews.

Reasonably, people have asked how this historically unusual circumstance came to be. Part of the answer (not a complete answer, but part of it) no doubt lies in the appointment of Catholic and Jewish judges to the US Courts of Appeals, since those courts function as feeder teams to the Supreme Court. (Eight of the current justices were formerly judges on the Courts of Appeals — Justice Kagan is the exception.) Simply as a mathematical matter, if over a certain time period Catholics constituted a higher proportion of judges appointed to the federal appellate courts, then we should expect a higher proportion of SCOTUS justices drawn from that pool of judges to be Catholic.

CatholicAppealsJudgesGraph2

* Data for judges appointed during the George W. Bush administration only go through first six years of that administration. Graphs by PAF, based on Table 2 of Sheldon Goldman, “The Politics of Appointing Catholics to the Federal Courts,” 4 Univ. of St. Thomas L. Rev. 193, 220, accessible here.

Some excerpts from Goldman’s paper, which discusses the history of Catholic appointments to the courts (footnotes omitted) (p. 208):

Harry Truman’s presidential papers suggest his administration was very attuned to ethnic politics, including the appointment of Catholics, to reward members of the party’s core constituency. There is ample evidence of this in Truman’s presidential papers. An illuminating example that was prominent at the time concerned the administration’s efforts to fill three vacancies on the federal district bench in Chicago. The President submitted nominees for all three vacancies at the same time-a “balanced” slate consisting of one Catholic, one Protestant, and one Jew. …

As seen in Tables 1 and 2, Truman appointed an even higher proportion of Catholic judges than Roosevelt. Like Roosevelt, Truman appointed a larger proportion of Catholics to the district courts (33%) than the appeals bench (23%), but even the proportion of Catholic appellate appointees was unprecedented and was almost double that of Roosevelt. It would seem that religious barriers to advancement in the judiciary were lowered even further for Catholics during the Truman administration. Given the importance of Catholics for the Democratic Party coalition, this was a logical development. Truman’s appointees were thus in many respects representative of the Democratic Party coalition.

Eisenhower (p. 208):

Eisenhower, as discussed earlier, wanted to name Catholics to the courts as a way of demonstrating that Catholics were welcomed by the Republican Party. Catholics constituted under one in five appointees but that was less than the proportion of Catholics named by Truman. Nevertheless, Eisenhower “restored” the Catholic seat on the Supreme Court with the naming of Justice William Brennan before the presidential election in 1956. The trend since the Roosevelt administration seemed to be for the appointment of Catholics to become more routine. In absolute numbers, as seen in Table 1, Eisenhower named twenty-four Catholics to the district courts, an unprecedented number for a Republican president. In absolute numbers, as seen in Table 2, Eisenhower named six Catholics to the appeals courts-the same number of Catholics appointed first by Roosevelt and then by Truman.

(Incidentally, according to Kim Eisler, a biographer of Justice Brennan, Cardinal Spellman had lobbied Eisenhower to appoint a Catholic to the Supreme Court; but, once Brennan was nominated, Spellman complained that Ike had appointed the wrong Catholic. Kim Isaac Eisler, A Justice for All: William J. Brennan, Jr., and the Decisions that Transformed America, pp. 91-92.)

Here’s Goldman on the Carter administration (p. 211):

President Jimmy Carter named Catholics to more than twenty-five percent of the judgeships he filled-a proportion akin to that of the Kennedy and Johnson administrations, and higher than that of previous Republican presidents. In absolute numbers, Carter appointed, up to that point in time, a record number of Catholics to the district courts, fifty-six, and tied with Kennedy-Johnson for the record of Catholics to the appeals courts-fifteen.

Carter’s administration made the most deliberate effort in the history of federal judicial selection to place women, African Americans, and Hispanic Americans (which in practice meant Catholics) on the federal bench. Carter named fourteen Hispanic Americans to the federal district bench in six states and Puerto Rico, and two to appeals courts. Fifteen of these sixteen breakthrough appointments were Catholics.

Goldman also discusses how, just as Carter’s desire to nominate Hispanics to the bench in effect mean nominating Catholics, so too did Reagan’s desire to please his Italian American constituency by nominating Italian American judges mean, in effect, nominating Catholics.

One thing that Goldman’s paper doesn’t do is break down the appellate court appointments by circuit. As SCOTUS watchers know well, the justices of the Supreme Court are drawn disproportionately from a handful of the 13 Circuit Courts of Appeals — with the DC Circuit supplying a particularly high proportion of justices. The DC Circuit is also one of the few circuits where home-state senators (and state bar associations) do not exert overbearing influence in the selection and vetting of judicial nominees. It might be interesting to see how the proportion of Catholic judges on the DC Circuit compares to proportion of Catholic judges on the regional circuit courts.

Graphs hereby made available under a Creative Commons BY-SA 3.0 license.

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