If merit were the sole criteria for appointing a justice to the U.S. Supreme Court, at least two or three Jews would be serving on the nation’s highest bench, according to Judge Stephen Reinhardt, one of the highest-ranking Jews in the federal judiciary.
Reinhardt believes it is high time to reinstate the “Jewish seat” on the Supreme Court.
To those who abhor quotas in judicial appointments — whether black, Hispanic, female or Jewish — Reinhardt responds that the makeup of the Supreme Court should be a balanced composite, reflecting the backgrounds, sensitivities and viewpoints of the population at large.
“We don’t want nine people on the bench who are exactly the same,” Reinhardt said in an interview. “We need a mix, and in the present one, no one represents the Jewish sensitivity.”
Reinhardt, a liberal Democrat, was appointed by President Jimmy Carter in 1979 to the 9th U.S. Circuit Court of Appeals, the largest federal appellate court in the United States.
He believes it would be legitimate for Jewish organizations to lobby for Jewish representation on the Supreme Court, as there had been for a half-century.
But Reinhardt concedes that to raise the issue now would needlessly affront African-Americans, because the current nominee, Judge Clarence Thomas, is black.
Beginning with Woodrow Wilson’s appointment of Louis Brandeis in 1916, a succession of Jewish justices served with great distinction on the high court – Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg and Abe Fortas.
But the “Jewish seat” has remained unfilled since 1969, when President Richard Nixon failed to appoint a Jew to the seat left vacant by Fortas’ resignation and encountered no organized Jewish protest.
Jews represent about 20 percent of all lawyers in major urban areas. Ten percent of the 165 judges serving on U.S. courts of appeal are Jews.
There have been “thousands of Jewish lawyers as qualified to serve on the Supreme Court as those who have been appointed during the past 20 years,” Reinhardt maintains.
Reinhardt believes that there has been, in effect, a conspiracy of silence among Jews to ignore the absence of a Jewish Supreme Court justice. He partly blames the Jewish community’s aversion to “stirring up trouble,” and partly the feeling that “there are more important problems to raise hell about.”
The attitude is mistaken, Reinhardt thinks, because if the Jewish community lets go of anything that is properly its due, it will lose more and more in the long run.
In general, Jewish organizations took no stand in the case of Douglas Ginsburg, who was nominated by President Ronald Reagan in 1987. In a hasty process, Ginsburg withdrew his nomination after a public and congressional outcry followed his admission that he had smoked marijuana in the past.
Reinhardt thinks that the marijuana issue, which has also been raised in connection with the Thomas nomination, was not the only negative factor against Ginsburg.
There was a feeling in the administration that “Ginsburg was not our kind of fellow,” said Reinhardt.
He observed that apart from their general qualifications, Jews, whether liberal or conservative, bring their historical experience to the bench and with it, a special sensitivity to the rights of minorities and society’s victims, whose protection is one of the pillars of the U.S. Constitution.
He believes that to assure diversity on the Supreme Court, it is proper that a black jurist, such as Thomas, sit on the highest bench, although “no one would say with a straight face that he is the best-qualified lawyer in the country,” Reinhardt said.
He added, however, that perhaps “there is no such thing as the most qualified nominee.”
Many factors need to be considered, such as the nominee’s knowledge of laws and the Constitution, his or her humanitarian outlook, an understanding of people and experience.
Reinhardt believes that Thomas will probably be confirmed by the U.S. Senate, but “one can never be sure. There’s a chemistry to the confirmation process that makes the outcome unpredictable.”
His advocacy of a Jewish Supreme Court seat is not self-serving, Reinhardt emphasized, since no Republican president would consider nominating someone with his political background.
The judge is the grandson of Max Reinhardt, the innovative Austrian-Jewish theatrical producer and director, and the son of Gottfried Reinhardt, a longtime Hollywood writer-producer-director.
A graduate of Yale Law School, Stephen Reinhardt practiced corporate and labor law, became involved in government and political affairs and served as the Democratic Party’s national committeeman from California between 1968 and 1972.
He was a California delegate to the Democratic national convention that nominated Jimmy Carter for president in 1976.
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The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
