Inclusion: Could there ever be a Muslim Supreme Court justice?

Diversifying

By now we all know that if Sonia Sotomayor is confirmed by the Senate, she will be the first Latina to serve on the Supreme Court of the United States. It is not unreasonable to wonder when the first practicing Muslim would be nominated to the highest court in the land. Sadly, even though Muslim slaves help build this country from the time of its founding and millions of Muslim live here today, such an event will not occur for the foreseeable future or even possibly in our lifetimes.

There are multiple obstacles to a Muslim being appointed to the Supreme Court, much less the lower level courts of the United States.

First, although there are an increasing number of seasoned Muslim attorneys around the country and a dozen or so law professors there are no District or Appellate level judges in the United States. In modern history, Supreme Court nominees have been sitting judges. Groups such as the American Bar Association even vet nominees based on their judicial experience and make recommendations to the President. Without any players on the Bench, as it were, we cannot expect a Muslim to make it to the Supreme Court.

Second, a significant number of Americans have an unfavorable opinion about Islam and Muslims that is growing stronger. According to a survey published in September 2007 by the Pew Forum on Religion and Public Life, 35 percent of respondents had an unfavorable opinion about Islam (the same survey conducted in March 2002 found that only 29 percent of Americans had an unfavorable opinion about Islam). Since the Federal judiciary is appointed by the President and confirmed by the United States Senate, the nation’s elected officials would have to overcome their constituents’ prejudices and steel themselves against vicious attacks from opponents. In short, the appointment of a Muslim would not be popular.

Third, the United States is involved in multiple wars around the world, both open and covert, with countries that have Muslim majority populations. Although both Presidents Bush and Obama have repeatedly stated that America is not at war with Islam, the repeated mention on the nightly news of the “Islamic radicals” “Islamic terrorists” and “Islamic militias” who we are fighting makes it hard for the ordinary citizen and politician to discern between the Muslim enemy and the Muslim American. The nomination of a Muslim would be sure to ignite accusations of “putting our enemy on the Supreme Court.”

The antipathy Americans feel towards their fellow Muslim citizens is based more on perception rather than any concrete knowledge. The same Pew study quoted above found that 58% of Americans knew little or nothing about Islam. However, perception is in many cases reality. One can be sure that during a confirmation hearing, antagonists would be feeding the news media with horror stories about Muslims and the bad acts that have been done in the name of Islam.

The questions about a nominee’s practice of Islam and personal adherence would be endless. All the familiar tropes would be rolled out: Does the nominee believe in shariah law and its medieval repertoire of punishments such as beheadings and stonings? What does the nominee think of women who are subjugated and forced to wear headscarves or who are forbidden to drive in Saudi Arabia? What does the nominee think of suicide bombing? And on and on and on.

The nominee may unequivocally disavow all of these abhorrent practices and still the damage would be done in raising the specter of the Muslim bogeyman. Indeed the only person to escape such vociferous questioning would be someone who declared, like Barack Hussain Obama, that they weren’t Muslim at all or a Clarence Thomas self-hating type who would disavow their background in order to achieve their life’s ambition.

Generally speaking the Supreme Court has not been open to religious minorities. Like the other branches of government, the Court at its founding was dominated by Episcopalians and Congregationalists. It took almost 50 years for Roger B. Taney, to become the Court’s first Catholic member albeit as Chief Justice. It was another 50 years before another Catholic, Edward D. White, was appointed as an Associate Justice.

Relative to their numbers within the American population, Jews have fared better. Louis Brandeis was appointed to the court in 1916. Since then there have been seven Jewish Justices on the Supreme Court.

However, if progress can be measured in numbers then change can happen. If Judge Sotomayor is confirmed, six of the nine serving members will now be Catholic. Two Justices will be Jewish and one will be an Episcopalian. There will still be zero Muslims on the Court.

(Photo: Jay Tamboli)

Farhan Memon is a graduate of Golden Gate University School of Law.


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