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February 17, 2009

Is career diversity a bad thing in the highest court in the land?

Adam Liptak has this great piece in today's New York Times, headlined " "Roberts Sets Off Debate on Judicial Experience." Here are snippets:

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.  As a consequence, Chief Justice Roberts said, “the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.”

Since then, Chief Justice Roberts continued, “the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?” That move, he said, has resulted in “a more legal perspective and less of a policy perspective.”...

But there are reasons to question the chief justice’s conclusions. The political scientists who study such things say there is no empirical support for the notion that former judges are more apt to feel constrained by earlier rulings or to suppress their political views. “Former appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience,” according to a study to be published soon in the University of Pennsylvania Law Review.

If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, “the data don’t support it.”

And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that “the more homogenous the group, the worse the quality of the decisions they make,” said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court.... 

Chief Justice Roberts did say that the current justices’ limited trial court experience was “an unfortunate circumstance” and “a flaw.”  Chief Justice Rehnquist tried to remedy that by once appointing himself to the trial bench in Virginia during a Supreme Court recess.  “He heard a case and issued the opinion,” Chief Justice Roberts recalled, “and was promptly reversed by the Fourth Circuit.”  He added, “Partly because of that, I can assure you that I am not going to appoint myself to the trial bench.”

As regular readers know, I have long complained about the absence of judges with trial court experience on the Supreme Court and I am a fan of a much more diverse SCOTUS bench.  Though I am not fully sold on Professor Adrian Vermeule argument in this article argues that the Surpeme Court should have at least one "lay Justice," I am suspect of the Chief's essential assertion that more Justices should be like him (and I am also disappointed by his unwillignness to experience the unique challenges faced by trial judges).

Some related old and new posts on judicial appointments:

February 17, 2009 at 07:58 AM | Permalink


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Of course, I have beat this drum before, but I quite disgree with the chief justice. The law is first and foremost a human endeavor, and there is more to being human than correct legal reasoning. There are many different imperatives in law but the first and foremost imperative is that no imperative should trump all the other imperatives.

One should not confuse change with progress. Rather, we should all take a humble pause and ask ourselves whether a homogeneous court is really in the best interests of democracy. If it is, then why has it taken us more than 200 years to get to that point.

Having said that, if nothing else, it's nice to see someone at least thinking about diversity in terms other than race and sex. That in itself is a small step of progress.

Posted by: Daniel | Feb 17, 2009 10:38:30 AM

One might think that former state-court judges would have a healthier respect for federalism. However, the historical record (Brennan, O'Connor, Souter) is mixed.

Posted by: Kent Scheidegger | Feb 17, 2009 1:00:29 PM

It would be interesting if a tax court judge or a bankruptcy court judge were appointed to the Supreme Court.

Oklahoma Senator Tom Coburn would be an interesting pick.

Posted by: federalist | Feb 17, 2009 2:25:41 PM

I would not use the word "diversity" because it is loaded in another way than this discussion merits. Rehnquist drew attention to himself by challenging hispanic voters at the polls --challenging their right to vote-- back in Arizonia. Nixon campaigned on soft liberal judges at the same time the Birch Society put up billboards across America asking for the impeachment of Earl Warren. A very great Supreme Court Chief Justice who brought American into the realm of human rights. Former Governor by the way.

In the Bush administration one gets appointed to the federal bench for writing memorandums of law justifying waterboarding and other tortures practiced at Gitmo and in CIA terminals around the world. Woo would have got one too (pardon the rhyme) had there been more time in the Bush White House.

The present court does not write concise, consistent, orderly opinions. They bicker. They have less grasp of every day life than some of their predecessors. Appellate judges achieved those jobs by politics. In the Bush years, certain appellate judges tried to shine as being tough on criminals (the old Nixon theme) by supporting harsh sentences and upholding unjust convictions.

Posted by: mpb | Feb 18, 2009 9:19:19 AM

My article "The Stepford Justices: The Need for Experiential Diversity on the Roberts Court", 60 Oklahoma Law Review 701 (2007), makes some of Adam Liptak's points, but also points out that this is the FIRST time in U.S. history that we have no Supreme Court justice with legislative experience at ANY level of government. It also the FIRST time that we have a court with NO justice who ever ran for elective office of any kind. I contrast this court with the broad government experience of justices from earlier times.

The article is available for free download at www.ssrn.com.

Prof. Timothy O'Neill
John Marshall Law School

Posted by: Prof. Timothy O'Neill | Feb 18, 2009 3:37:05 PM

The Chief Justice did not suggest that the small amount of trial experience on the Supreme Court is a good thing. As one can discern by playing the video and going to the 29:35 mark, the Chief Justice answered a student question by describing the lack of trial experience of the Justices and even their law clerks as "an unfortunate circumstance" and "a flaw" and said the absence of trial experience was "the one gaping hole in the background of legal experience" among the current Justices. Only AFTER those remarks did the Chief Justice make his quip about not appointing himself as a trial judge partly because of the reversal of the previous Chief Justice's decision when he had sat as a trial judge.

I do not think the full context of the Chief Justice's remarks supports the proposition that he was asserting that more Justices should be like him. I don't think he even came close to making that assertion.

In answer to Professor Berman's question about who is reading his blog, I am a lawyer in private practice.

Posted by: Roy Englert | Feb 18, 2009 7:37:09 PM

>The law is first and foremost a human endeavor

No it isn't, it's a moral endeavor. Ideally, the principles of law should be the same even if all the humans are replaced by purple dinosaurs.

This is assuming that you meant that statement to actually have some content, not the merely vacuous interpretation that law is an activity done only by humans (as far as we know).

Posted by: Robert | Feb 18, 2009 8:37:07 PM

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