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One of the first legal articles I published was titled, “Will an American Jew fill the next vacancy on the Supreme Court of the United States? The publication history of the article is somewhat curious.

I first submitted the article to the Pennsylvania Trial Lawyers Association’s magazine, The Barrister. It was refused. “Too Jewish” said some of the Jewish members of this Editorial Acceptance Committee.

However, the article was saved by the good Presbyterian Lee C. Swartz. Over the next several years, he became a great mentor and friend, recently retiring from the prominent Pennsylvania Supreme Court Standard Jury Trial Committee, where he served as President.

The article was published, but not before sending it to the judges mentioned in the article. One of the stories I had heard from a federal judge, and reprinted, was that Arlin Adams of the United States Court of Appeals for the Third Circuit, a highly qualified and distinguished judge, was to receive an appointment to the Supreme Court. At the last minute, Richard Nixon changed his mind and appointed William Rehnquist instead, who continued to serve for many years. The judge who told me the story claimed that Nixon made his decision based on anti-Semitism and that at the time Nixon changed his mind, the press, including Walter Cronkite, was actually at Adam to report the story of his appointment.

One of the people I sent the article to was Nixon’s successor, Gerald R. Ford. Ford responded on February 6, 1990, in a letter, which still hangs on my office wall, in part as follows:

When Justice William O. Douglas resigned from the Supreme Court, I had the opportunity as President to make the appointment to fill the vacant position. Attorney General Edward Levi, as my senior advisor, was extremely helpful in establishing proper procedure to handle this vacancy fairly and responsibly. Former Court of Appeals judge Arlin Adams was one of the top finalists.

Ford extolled Adam’s virtues as a jurist, outstanding citizen and community leader.

While Ford refrained from commenting directly on Nixon’s decision, he nevertheless requested that a copy of the article be placed in the Gerald R. Ford Library in Ann Arbor, Michigan, where it resides today.

With the departure of Justice Breyer from the United States Supreme Court, there will always be a Jewish member of the Court, Justice Elena Kagan. Breyer’s departure was preceded by the death of Justice Ruth Bader Ginsburg. One may still be willing to posit that the “Jewish Headquarters” is alive and well, albeit reduced from 3 to 1 with the death of Judge Ginsburg and the departure of Judge Breyer.

President Biden has already publicly announced that the seat will go to an African-American woman.

Should there be a reserve “seat” for a particular color, religion or other aspect of an individual? The debate has been going on almost since the founding of the institution. Initially, the question was whether the presidents would appoint federalists or anti-federalists. He was a federalist who helped shape the orientation of the first court.

Politics is always the revolving door question of who will get the nomination to the Supreme Court of the United States. However, religion also had a place in early times. Would Catholics, Jews or certain denominations of Protestants and even Quakers receive Supreme Court nominations? A wonderful trivial question for the next Shabbat dinner would be: “Who was the first Jew appointed to the Supreme Court of the United States? Most people would raise their hand and say “Judge Brandeis.” Of course, they would be wrong. The first Jew seriously considered for the United States Supreme Court was none other than Judah Benjamin, the Southerner appointed before the outbreak of the Civil War. He declined President Millard Fillmore’s nomination to remain in the Senate. A number of good volumes have been written on the subject and make for interesting reading.

Brandeis was the first Jewish candidate elected to the Court. He was attended by Cardozo, Frankfurter and other renowned judges.

Different judges broke different barriers, like Judge Thomas and Judge Sotomayor. Perhaps Judge Coney Barrett even crossed a line, given her evangelical Christian views, proudly displayed during her confirmation hearing.

My question is whether the idea of ​​a “Jewish Headquarters” maybe soon an antique from another era? What about an Asian seat? There are many minority groups in this country who would like to claim a seat on the Supreme Court of the United States.

Sooner or later, there will be a transgender candidate for the highest court in the land.

Once, when I was being considered for a Federal Court vacancy, I was bluntly asked why I, a Jewish man, should receive the presidential nomination rather than say a woman? I was not shocked by the question and responded by saying that merit should be the primary criterion for judicial appointment, but ultimately the federal judiciary should “looks like America”. I didn’t get the nomination.

I suspect it will be a long time before we see another professing member of the Jewish faith appointed to the Supreme Court of the United States. Of course, that transgender, African American, or Asian person could be Jewish. We have no color or other impediment to being Jewish. I stood at the Western Wall and prayed with people of all kinds and descriptions.

The question of what role ethnicity or other factors play in nomination to the Supreme Court of the United States is a topic that will never go away. Identity politics, as some would call it, is not a new phenomenon but has clearly become an integral part of the complex American conversation regarding the right of admission to our most august institutions, be they colleges , universities, judicial appointments or elective mandates. Obviously, inclusion is better than exclusion and bigotry, but it also creates a sense of injustice for those who are allegedly “overrepresented”. This is, in particular, a Jewish question and ultimately a Jewish problem.

Clifford A. Rieders is a Williamsport Board Certified Trial Lawyer

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