Should Federal Reserve Governor Kevin Warsh with a law degree from Harvard Law School, the alma mater of the President and several justices on the Supreme Court, be considered to replace the retiring associate justice John Paul Stevens? Robert Barnes of The Washington Post began a debate about the faith of potential replacements. He asks if a protestant should replace Stevens.
Kevin Warsh is an archetypal white protestant male minted out of upstate New York. A bench that has an African-American conservative protestant (a rarity) who had replaced Thurgood Marshall, an African-American liberal, one Jewish woman (Ginsburg) and man (Breyer) and 4 Catholic men and 1 Catholic woman, meets the diversity criterion going by traditional stereotypical categories of American society, though it is perhaps a little skewed toward Catholics. At issue, however, is should these categories continued to be balanced going forward to dispense equal justice under law?
The overarching principle that must govern jurisprudence is the importance of the role of faith in the society while not being intrusive in the lives of its members. The purpose of faith, as a guiding principle in life, is to be just. The normative purpose of the law is to evoke the essence of faith and delineate it from the dogmas. Therefore, faith matters because it should not matter. Any faith that leads to injustice is no faith at all.
If this principle is the benchmark, then the test for the justices on the bench or any others aspiring to be on the bench is their understanding of the faith of their choice, given that Americans choose their faith in a country which is one nation under God, the faith being simply a path to seek the one God. Conversion then is about the choice of a path to connect with God, not a choice of God.
The many paths, therefore, should be able to peacefully co-exist whether an American is a Protestant, Catholic, Jew, Muslim or Hindu, male or female. This means, ideally even an all male or all female Court with all members of the Court belonging to one faith should not matter for jurisprudence. What matters is enlightened, normative adjudication to enable the society to overcome differences while benefiting from the richness of those differences.
In this context of selecting justices for the third branch of government for life time appointments to adjudicate on the affairs of the state and society, the capacity of a candidate to weigh and balance legal evidence and social reality with the normative purpose of the evolution of the society becomes a critical criterion. The Court should not make social policy but interpret current laws made by the Legislature and the Executive for their constitutionality. When the law itself is unjust, the responsibility of the Court is to enjoin the legislature to change it, including the Constitution itself when necessary, as has happened on countless occasions before, to bring about social justice.
Governor Warsh is perhaps being seen by some as an attractive candidate given his background in business and law from elite universities, due to his high profile political connections and the context of the current state of the economy where moral hazard is rampant. Still, living in the world of economic policy making which, unlike the legal profession and the Supreme Court, is characterized by racial and religious ideologies and replete with moral hazard in policy, it would be useful to ask if any economic policy maker is, in fact, capable of dispensing justice.
The Federal Reserve, where Kevin Warsh is an administrative governor, is an institution where institutional racism and Judeo-Christian ideology runs as rampant as it does in the United States Congress and Hollywood. Warsh could be a candidate for the Supreme Court if and only if he can be just in the conduct of his job at the Federal Reserve, an institution that is less transparent than the Supreme Court and a gross violator of civil liberties to ensure its secrecy and reputation in the name of economic security and stability, both as an administrator within the institution and as a policy maker for the economy.