Fourth Jewish Justice- Cause for Celebration or Concern

Today, in the U.S., antisemitism, I prefer the expression "Jew hatred," is only expressed in earshot of those sharing the same sentiments.   Social media has provided private channels, echo chambers, among groups of all persuasions, facilitating out-group animosity.  Religious discrimination is unlawful, as is age, race and sex, yet the campaign promise by Donald Trump to bar every member of a major religion shows how the potential for this exists. This article, "Obama Nominates Another Left Wing Jew to the Supreme Court" conveys the alternative reaction that is not reflected in the main stream media. As these restrictions accumulate, with accompanying norms against even expressions of disdain, more and more people feel oppressed, the phenomenon itself, described as "political correctness," becomes a cause celeb  and a political rally cry for freedom from these restraints.

With freedom to discuss such issues there is often released an overt hostility that had been incubating among those who only spoke about the issues among themselves. What I'm describing is analogous to a supersaturated gas that requires only a seed crystal to cause precipitation, a liquid manifestation of what had been present, but invisible. Out of a clear day first comes clouds and then a downpour. The Trump example of his promise to exclude all Muslims from entering the country, legitimized religious discrimination and made the unspeakable into a mass movement in hours.

This physical phenomenon is a metaphor for the perception that in the United States antisemitism does not exist since there is no public manifestation of it.  In fact the mere addressing the subject, as this writer is now doing, is easily construed as introducing Jew hatred into the existing atmosphere of toleration and respect for Jewish people.  The messenger becomes the problem, rather than the message.   

This article in N.Y. Jewish Week expresses a common viewpoint among many Jews I have spoken to:   

“It is a remarkable testament to America that a fourth Jew can be nominated to the court and that his religion is not an impediment,” said Marc Stern, general counsel for the American Jewish Committee.

If confirmed, Garland would fill the seat held by Antonin Scalia, who died last month.

Stern said he believes it unlikely that Garland’s religion will “generate substantial opposition from those who would say there are too many Jews on the court. Nobody is threatening violence against the Jews, as happened in Europe when they thought the Jews were too powerful. … It’s unprecedented in the long history of the diaspora that you have an institution as powerful as the Supreme Court and that there could be four members who are Jewish when Jews constitute less than 2 percent of the population.”

Mr. Stern is saying, "We have arrived, and this disproportionate representation on the high court is cause for celebration.  This sentiment was echoed by the chair of Jewish History at UCSD, along with the writer of  "The Frankfurt School, Jewish Lives and Antisemitism" a book that examines an era exactly like today's when Jew hatred was subtle, shortly to be expressed in catastrophe of  the Nazi genocide.  Both of these scholars Debora Hilton and Jack Jacobs in a private discussion, echoed Mark Stern's position above.  

There was a time when there wasn't a single Jew on the Supreme court, and I would agree that the appointment of Louis Brandeis in 1916 would deserve the celebratory tone of Mr. Sterns article.  Yet, I would argue that being the first, breaking a barrier for this important post, is qualitatively different than being one more of an existing over-represented demographic.

My argument would be the same if the situation were reversed, and there it was a Republican President and his nominee was Catholic.   Then it would be, as it had been when Scalia was alive, that those of this religion being the entirety of the conservative bloc.  The analogy falls apart because Catholicism is a denomination of Christianity, and it's social values on current social issues around abortion and gender is similar to conservative protestants.  While Catholics are vastly over represented,  Christians are still under-represented.
     

Let's jump forward for an unspecified period, and assume that there has been a series of Supreme Court decisions that, from the conservative perspective, has fostered the murder of millions of unborn babies and impeded the teaching of Gods plan of defined gender roles.  And, it could be pointed out that these cultural changes were made by a faction of five un-elected members of the Supreme Court, known as the Liberal Bloc.

Those, such as the writer of the above article, choose not to accept that Jew hatred, something that has existed in various forms for millennia, could surface again.  There are dozens of jurists with credentials comparable to Merrick Garland who could be nominated for this position with similar juresprudential and partisan values; many who are Protestants as are a majority of American citizens with not a single Justice on the Supreme Court, as Antonin Scalia pointed out in the Obergefell decision  This anomaly, and problematic nature of skewed demographic and religious representation on the court was echoed recently by Justice Sonia Sotomayor, specifically stating......“I, for one, do think there is a disadvantage from having (five) Catholics, three Jews, everyone from an Ivy League school,”  

While I do not believe that President Obama gave this representational aspect much thought, and just worked the political calculus of this nomination, it behooves others to look at the possible adverse consequences.  When someone attempts to discern the reality of "Judeo-Bolshevism," the contribution of Jewish values on the Russian Communist Revolution of 1917,  the first question is the the proportion of Jews in the revolutionary leadership.  For objective investigators if there were an  insignificant number, it can be dismissed as a "canard" a lie as it is currently in Wikipedia .  For those who who want to validate their Jew-hatred, the dramatically larger percentage of Jews at the least provides a plausible argument for a connection between Judaism and the event.  The Bolshevik revolution evolved from complex historical causes, multiple demographic levels, such that no religious tradition can be a full explanation of this event.  The Supreme Court is structured, with correlation between religious background and political identification easier to quantify. 

I see this nomination as a time-bomb, that while unlikely ever to explode, there being no valid reason for it to ever exist.  As of now it is unlikely that Mr. Garland will be confirmed by the Senate before the election, yet if he is still the nominee should the Democratic candidate win the election, he would likely be confirmed in a lame duck session after the election but consisting of the  pre-election members of Congress.  Merrick would be the most moderate, and more importantly given his relitively advanced age,  with the shortest tenure to come from a Democratic President.  This will have two effects.   First is the potential for antisemitism due to the decisions by a liberal bloc that could be construed of representing Jewish values and power.  Second is that a younger nominee would have more impact over his/her career in support of liberal values.  

In recent years, the argument that the Supreme Court objectively evaluates the constitutionality of cases has become insupportable whether by statistical or content analysis. Numerous independent groups from both sides of the political spectrum have called for ending the life tenure of Justices, with some type of staggered system to end the random nature of Presidential appointments - some get many; others none.

Since such a constitutional amendment that would be required is unlikely, we are stuck with the randomness of occupancy of this branch. It has the capacity of defining social movements, and advancing those such as gay rights that the legislative-executive process could not. Since the Justices of the Supreme Court are not elected, an approximation of democracy lies in Justice's numerical representation of the public.  Certainly race, gender and ethnic origin  are broadly approximated,while religious identity has become skewed, with only Catholics and Jews on the court at this time.

With Garlands confirmation, the distortion will be exaggerated, which would be fodder for the right wing extremism, often including antisemitism, that appears to be on the march throughout the world.