The confirmation hearing for Judge Sonia Sotomayor this week again brings up the fundamental issues of diversity and affirmative action. Regardless of what we think of the good judge – I like her, and was honored to be at the White House for the announcement of the first Latina for the Supreme Court by the first African-American president, something that I actually did find very moving – it is worth reflecting theologically and politically on the issues involved.

The story of creation in Genesis provides a great depth of insight into the being and nature of God.  In those first chapters of scripture we see that the image of God is best reflected not through sameness but through the breadth that exists within the grand diversity of creation.  Jonathan Sacks, Chief Rabbi of the U.K., argues in his book, The Dignity of Difference, that the Tower of Babel stands as a warning against the hubris of humans who try to impose uniformity where God has created diversity.  The doctrine of the Trinity holds that God, while perfect in unity, is at the same time diverse as Father, Son, and Holy Spirit.

Our country is always at its best when diversity is not viewed as a problem to be overcome but as a strength to be celebrated.  The challenge diversity presents is not for the country to become colorblind but for us all to be able to recognize and celebrate our differences while maintaining the proposition our country was founded upon, that all are created equal.  While all are equal, we are not all the same — and that is a very good thing.

This principle was affirmed in the 1978 case of Regents of the University of California vs. Bakke, when the Supreme Court struck down as unconstitutional a strict quota system for admissions into medical school.  But it was in the opinion of Justice Lewis Powell that another precedent was established.  Justice Powell affirmed the role of well-designed affirmative action policies because of the benefits for society as a whole.  Jeffery Toobin describes and quotes from the opinion as follows in his book The Nine:

…Powell justified affirmative action because of what it did for everyone, not just for its immediate beneficiaries.  In his view, diversity — a buzzword that came into wide use only after Bakke -- helped all students of all races.  “The nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples,” Powell wrote, so “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file.” …  In the subsequent 25 years, Powell’s rationale had become the dominant intellectual justification for affirmative action — not as a handout to the downtrodden but as a net benefit to the society as a whole.

In the 2003 cases against the University of Michigan (Gratz vs. Bollinger) and the university’s law school (Grutter vs. Bolinger), the principle of taking race into consideration as one factor of admission to achieve the goal of diversity was again affirmed.  In those cases, the law school’s affirmative action policy was considered to be set up in a way that promoted this principle while it was determined that the undergraduate system was not.  Of special concern in the case was a brief signed by top retired military officers who argued that affirmative action programs in place for officer training was vital to the quality, effectiveness, and cohesiveness of our armed forces.

One of the great benefits of diversity is that whether in regards to life in general or the particulars of a court case, our background, life stories, and identities all afford us different perspectives and unique insights.  A diverse class, officer training program, community, or Supreme Court is going to have a broader and deeper wealth of knowledge and experience to interpret the world around them or a plaintiff’s grievance.  This is the value of empathy that the president laid out as one of his requirements for a judge.  Empathy allows us to rightly consider our emotions in the process of making a decision and to view the facts within more than just one framework.  David Brooks, conservative columnist for the New York Times, said it like this:

It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain. People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

The belief that diversity is a goal worth pursuing because it is a benefit to all of us is not a conservative belief or a progressive belief, but a deeply held moral value and American proposition.  As Brian McLaren wrote, this is not racism.  It is from this foundation that our country has overcome the sins of slavery and legalized segregation — and it is from this foundation that our country will continue to make strides in overcoming racial inequality through the courts, legislation, and the transformation of society.