What should we think about the justice system, the retirement of Anthony Kennedy, and the nomination of Brett Kavanaugh? Or put another way: Why not a Native American on the court?
This is Trahant Reports.
A few weeks ago I was interviewing the attorney and playwright Mary Kathryn Nagle about her work. Her amazing plays merge Indian history and law with contemporary Native issues. There is often a character, an attorney and Native woman, who argues before the Supreme Court. But I messed up. Instead I asked her about a character, a young Native woman, who becomes the first Associate Justice serving on the Supreme Court.
“Which play are you talking about?” Nagle responded. Then it hit me: None of her plays had that character. I was projecting beyond her fiction.
“Now I need to write that play,” Nagle quickly said. “I think that would be an amazing play. To write a play where she’s the first Justice. Why not? ’cause then it begs the question, ‘Why not?’ Why not? I mean you look at the whole history of this country and how integral tribal issues have been. Why wouldn’t there have been one by now?”
Why not? That is the question that should be asked when ever there is a vacancy on the Supreme Court. And for judicial openings in U.S. district courts, U.S. courts of appeals, and U.S. Court of International Trade, as well as the Court of Claims, U.S. Customs Court, and U.S. Court of Customs and Patent Appeals.
If confirmed by the Senate, Judge Kavanaugh will be the 114th person to serve on the Supreme Court since 1789. The only active Native American on the bench is U.S. District Judge Diane Humetewa, Hopi, in Phoenix. She is one of three Native American judges in history. When she was confirmed by the U.S. Senate in 2014, there was a lot of optimism that more Native American judges would follow.
As attorney Chris Stern, Navajo, told Indian Country Today at the time: “Let’s hope Diane’s confirmation is just the start of a slew of Native American federal judges. There is still a massive lack of representation of Indian judges in the federal courts.”
A massive lack of representation remains.
But one route to the bench starts with those who clerk for judges, especially those who serve the Supreme Court. Starting earlier this month, Tobi Merritt Edwards Young, a Chickasaw tribal citizen, is doing just that. She is clerking for Associate Justice Neil Gorsuch.
According to a news release from her tribe, “Young is thought to be the first enrolled citizen of a Native American tribe to serve as Supreme Court clerk.” As she says: “I hope that if other Chickasaws read about my experiences, they will recognize that nothing stops them from pursuing any dream that they have too. Somebody from where they are from is going to be working every day at the Supreme Court, and there’s no reason that there shouldn’t be many more to come.”
More to come. Yes.
I am Mark Trahant.
