October 24, 2007
A call for SCOTUS Justice diversity
Echoing some thoughts I had during the last round of Supreme Court vacancies, I see thanks to CrimProf and intriguing looking new paper on SSRN. This piece by Timothy P. O'Neill is entitled "The Stepford Justices: The Need for Experiential Diversity on the Roberts Court," and here is the abstract:
For the first time in history every Supreme Court justice has come directly from the same job: judge on the U.S. Court of Appeals. For the first time in history no justice has ever served in a legislature at any level of government. For the first time in history no justice has ever run for political office. For the first time in history eight of the nine justices have graduated from the same three Ivy League law schools.
This narrowness of experience on the Supreme Court is unprecedented. Our current Supreme Court can indeed be called The Stepford Justices. This article traces this homogeneity to the failure of the Robert Bork nomination in 1987. Since Bork, Presidents have tried to sell their nominees as non-ideological legal technicians. At the same time, justices are actually being selected for the same reason they always have been — the hope that their decisions will reflect the political beliefs of the President and his party. The result? An ideologically split Court that decided one-third of last Term's cases by 5 to 4 votes.
This article contends that Presidents — and the legal community — must be more honest about the role of ideology in the work of the Supreme Court. It draws from the work of the mathematician Kurt Godel to argue that the nature of the Supreme Court docket leads to decisions that are both true and at the same time unprovable. Technical legal skill is not as important as values and intuition.
The article recommends a return to the policies of presidents such as Roosevelt, Truman, and Eisenhower. While they certainly tried to choose nominees who shared their political beliefs, they nominated not just individuals with judicial experience, but also lawyers who had been Senators, Governors, cabinet members, heads of regulatory agencies, professors, and even private practitioners. This mix of justices with wide legal and governmental experience is vital for the effective functioning of the nation's highest collegial court.
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October 24, 2007 at 08:17 PM | Permalink
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Jeffrey Toobin noted the same thing last night on PBS when he was talking about the Brown v. Board court (the discussion was prompted by a talk about Justice Warren, with Charlie Rose)
I would actually like to see an academic, preferably a constitutional law scholar without any experience on the federal judiciary, named to the Supreme Court (personal choice would be Erwin Chemerinsky or Kathleen Sullivan). A trial court judge would go a long way, too. Toobin had much to say about Justice O'Connor's background as senate leader in Arizona, and suggested that her pragmatic, public opinion-oriented rulings (his characterization) were at least related to that experience.
But it isn't like members of the current court don't have plenty of pre-judge experience. Law professors, private practitioners, AUSAs...they're all there. Former politicians are missing, which is why I suspect Toobin suggested Clinton would nominate Obama if she is elected president in 2008. I am not sure I agree with that prediction, but he would bring a lot to the table that has been missing for some time.
Posted by: Alec | Oct 24, 2007 8:46:57 PM
There already is a former trial court judge on the SCOTUS, Souter, who was also a former trial lawyer.
Posted by: nony | Oct 24, 2007 11:14:32 PM
The article recommends a return to the policies of presidents such as Roosevelt, Truman, and Eisenhower. While they certainly tried to choose nominees who shared their political beliefs, they nominated not just individuals with judicial experience, but also lawyers who had been Senators, Governors, cabinet members, heads of regulatory agencies, professors, and even private practitioners.
No senators or governors, but the other 3 things are covered. I'd prefer people who know how to be judges and who at least try to recognize a distinction between law and politics. The other 2 branches of government have already been ruined by politicians. Warren and O'Connor have already shown that politicians shouldn't be on the bench.
This looks like a puff piece. It's very fashionable these days to call for "diversity" in whatever institution is in the public eye.
Posted by: | Oct 25, 2007 5:32:50 AM
I would argue that all nine of the current Justices are politicians. Warren and O'Conner were merely more obvious about it.
It's not a puff piece at all; it's just noting that all of the current nine politician-lawyers on the Court got there exactly the same way: by serving first on one of the lower Federal Courts of Appeals. Is that the Supreme Court we want?
Posted by: Marc Shepherd | Oct 25, 2007 6:52:57 AM
it's just noting that all of the current nine politician-lawyers on the Court got there exactly the same way: by serving first on one of the lower Federal Courts of Appeals
Hardly a novel insight. The fact that the Justices have similar resumes has been brought up in the mass media and on the blogs a million times. The relevant question is what you'd rather have. O'Neill's answer is "anything but this" or "diversity." I wish he'd give some serious thought to that, because I think the status quo is the best we can do. Most people don't understand what law is or what courts do. Courts of Appeals judges are generally an exception to that. To say that we should draw on a pool of people in which most people don't get it is foolish, in my view, and I haven't seen any good arguments to the contrary.
Posted by: | Oct 25, 2007 8:19:34 AM
Also, most people forget that much of the Supreme Court's work is boring cases involving things like the construction of federal statutes. See Neil M. Richards, The Supreme Court Justice and "Boring" Cases, 4 Green Bag 2d 401 (2001).
Many of the Justices turn into politicians (or in Kennedy's case, self-aggrandizing dramatists) whenever hot-button social issues come up, and the debate over what sort of Court we want unfortunately tends to focus on these things. It shouldn't.
Posted by: | Oct 25, 2007 8:26:07 AM
It is, of course, true that "Most people don't understand what law is or what courts do." But the article isn't suggesting that the guy who flips burgers at the diner should become our next Justice.
Posted by: Marc Shepherd | Oct 25, 2007 11:25:55 AM
the article isn't suggesting that the guy who flips burgers at the diner should become our next Justice.
I understand that. Having watched some of the confirmation hearings on C-SPAN, I don't think that ignorance of what law is and what courts do is limited to the average burger flipper. One of the things that the article suggests is senators. I understand that many of them aren't as dumb as they act on TV and that they're largely grandstanding for the cameras, but the idea of most of those people sitting on the Supreme Court is more than a little frightening.
I don't know quite as much about governors, so I'll hold my tongue on that.
Posted by: | Oct 26, 2007 9:03:01 AM