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January 4, 2010

Justice Scalia makes pitch for diversity on Supreme Court

I am pleased to see this notable new AP piece reporting on interesting comments from Justice Antonin Scalia.  The piece is headlined "Scalia: Varied job experience needed on high court," and here are excerpts:

Supreme Court Justice Antonin Scalia says he's concerned there aren't more people with varying professional backgrounds being nominated to the nation's highest court....

He said there were three justices with no prior judicial experience [when he first joined the Court] and today there are none.  Scalia said he's concerned about the practice because "every aspect of your career broadens your outlook" so "it's good for the court to have people of varying backgrounds."

Regular readers know that I have long been an advocate of diversity on not just the Supreme Court, but also lower courts, especially as concerns diverse pre-judicial legal experience.  I am glad to discover that at least one Supreme Court Justice is a fellow traveler in this respect.

Some related new and old posts:

January 4, 2010 at 06:20 PM | Permalink


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Says the same guy who generally refuses to even consider non-Ivy Leaguers as clerks, even after admitting that one of his best (now-Judge Jeffrey Sutton) came from Ohio State.

Can I safely assume that "background" isn't a call for changing knee-jerk institutional nepotism?

Posted by: Res ipsa | Jan 4, 2010 7:19:25 PM

After passing 1L, there is virtually no lawyer diversity possible. All are indoctrinated into false supernatural doctrines. There is then a cover up of the violation of the Establishment Clause, and of the absurdity and total failure of their atavistic methodologies. None will say that the sole validation of these methods and doctrines is at the point of a gun.

An Amendment should be enacted to exclude any one who had passed 1L from all benches, all legislative seats, and all responsible policy positions in the executive.

Pick any random member of the Virginia jury pool, or even a wine besotted bum puking in the gutter, and replace all the dumbass incompetent lawyers on the Supreme Court. You will get an instantaneous upgrade in the logic, sense, and benefit of the decision making, not to mention far greater clarity of decision drafting. This Court is catastrophe for our lawyer besieged nation.

Posted by: Supremacy Claus | Jan 4, 2010 9:42:18 PM

America has many different faces now so we should all be represented in order to find the best solutions and decide the biggest cases.

Posted by: Disability Insurance Quotes | Jan 5, 2010 12:42:05 AM

Justice Scalia gets scant attention from quote "Liberals", because most liberals do not practice criminal law and hence do not know that this Justice is the champion of the Confrontation Clause. Some of those liberals do not know what that Clause is about and I dont invite the response by our own Claus within this blog.

My take on this is that we need more Justices on the Supreme Court who were: legislators, criminal defense lawyers (to offset the gov'ment prosecutors (Reagan word), governors of a state, and civil lawyers who have had no experience in big law firms.
"Diversity" is a term which has in recent years meant that the person is not a white anglo saxon, Episcopalian male. Then it went South to letting in the Catholics. So now the Catholics are not Diverse.
With Scalia and Alito on the bench, Scalia cannot complain about Sicilianos or northern Italians not getting on the bench. On the Court: We have had a few Jews, only two blacks. Only three women, and only one hispanic. The problem with those ethnic diversity folks is they are all "pull the ladder up" minorities (Marshall the exception). They are all: good prosecutors and good establishment folks with good minority names and ethnic backgrounds. So, diversity, should mean, not the skin color, the ethnic background, or the BS about their Yale qualifications. It divershity should mean, now as we look at the present Court: non Yale, non Harvard, non East Coast, non big law firm, non federal gov'ment office holders and non federal or state beholders to the status quo and the powers that be.

Earl Warren was a former Governor of California who had the distinguished history as A.G in California to be the proponent of locking up all of the Japanese people, citizens or not, in WWII. Mr. IKE made him Chief Justice. Sometime, I think it was after Brown v. Bd. of Education, IKE says: "worst mistake I ever made". We need more such mistakes, because Earl Warren (not to be confused with Warren Burger) was one soul who led America out of Apartheit and into the world envisioned by the Framers of the Constitution (those folks in the House and Senate who were called Radical Republicans who passed the 14th Amendment).

So, Mr. Obama, where do you find an Earl Warren, a Hugo Black, a Bill Douglas, a Stevens, a Souter, a Brennan? Please do not look to your fellows from Harvard Law or Yale Law, or former Supreme Court clerks who end up as appellate judges on some federal court of appeals and might be an easy nomination before some Senate Committee and then the full Senate. No. Go outside the box. Nominate someone more diverse than: corporate law, government suck-up, prosecutorial suck up, appellate court experience (because the senate passed them favorably before), hispanic, or ethnic credentials, East Coast, etc.

No, Mr. President. Give us a "diverse" person, not of the above. If you are a true Democrat then give us a nominee who is of the caliber of Justice Black (if the nominee was in the Klan but overcame such bad connotations then so be it and nominate a Hugo Black). Have some guts, like Roosevelt did. Nominate a former Governor who was wrong about locking up the Japanese but proved better. Nominate a Justice Douglas, who was an egg head and a former SEC Director, but had some brains.

If you give us a nominee for the next seat on the Supreme Court, Mr. President, I will be attentive. If you nominate some "pull up the ladder minority" or anyone from Yale or Harvard, then I will consider moving to the Bahamas.

We need diversity. If that means some white male wasp from some midwest or westcoast place who never went to Yale or Harvard and who might have some qualities which reflect the aspirations of the future, then please do your best. "We" are waiting and we do appreciate the comments of Justice Scalia about true diversity on the Court. And by "we", I mean the folks who worked the polls for Obama and expect better of him than his last nominee.

Posted by: mpb | Jan 5, 2010 6:49:25 AM

I like your sentiment, mpb. Trouble is, it can't come true until we stop deluding ourselves that the "best and the brightest" invariably come from the Ivy League. True, many brilliant people graduated from those institutions--but many others did not, some because they didn't have the money to go to a private school, some because they wanted to be in a different geographical area, some because they were constrained by family obligations, some because they couldn't think on too oversimplified a level for the LSAT, and some because they plain didn't want to hang around with a bunch of self-entitled elitists.

Also, we need to de-politicize the nomination process. Ivy League judges are the "safe" pick precisely because they can't be assailed on their academic and professional qualifications--the Ivy-League-judge model forces Senators to pick some other pretext to sink the nominee for purely ideological reasons. The de-politicization, however, must go both ways. Republicans have to stop insisting on reactionary activists, and Democrats cannot insist on flamethrowing activists. We need to stop with the litmus tests and gotchas--again, on both sides of the aisle.

Posted by: Res ipsa | Jan 5, 2010 9:06:47 AM

"My take on this is that we need more Justices on the Supreme Court who were: legislators, criminal defense lawyers (to offset the gov'ment prosecutors (Reagan word)."

I agree. Legislators, criminal defense attorneys, and non-appellate judges would be welcomed.

I have asked before, but don't know the answer.

Has any Justice on the current Court ever represented a criminal defendant? I think Ginsburg would have during her time at the ACLU, but I'm not sure. If so, I'm willing to bet the total number of represented criminal defendants for the Justicies is quite low, and certainly not many non-corporate defendants.

Posted by: DEJ | Jan 5, 2010 12:24:39 PM

Res: It goes without saying Scalia values hyper-proceduralism for lawyer rent seeking above all else, God, country, family, self. It is part of the criminal cult indoctrination, and he underwent the best at Harvard Law.

Beyond that value, he seems to specialize in hypocrisy, more than any other Justice. He has personal biases and views, and then justifies these with external pretexts. He is a conservative who will have led a series of cases that will loose more vicious predators than Brennan ever did. Is that series over yet, by the way?

That Confrontation Clause value is ironic. He also opposes the use of foreign legal doctrines. So, naturally, he quotes Gladstone, in Blakely. Gladstone was 1) a foreigner; 2) an MP who voted for the Stamp Act; 3) a bewigged royalist fop; and lastly, 4) a jurist who tried our beloved patriots in absentia, warranting the Confrontation Clause.

Posted by: Supremacy Claus | Jan 5, 2010 1:43:43 PM

"Says the same guy who generally refuses to even consider non-Ivy Leaguers as clerks, even after admitting that one of his best (now-Judge Jeffrey Sutton) came from Ohio State.

Can I safely assume that "background" isn't a call for changing knee-jerk institutional nepotism?"

I realize you're quoting (or paraphrasing) a Scalia speech, but it's not even actually true--he currently has a UVA clerk, and I know of several others. I'm sure you'll say UVA is essentially Ivy League, and as an alum I'll take the compliment, but where does that logic end? Anyway, your criticism applies to all the Justices except for Thomas, who routinely hires people from places like Creighton and UGA.

Posted by: Jay | Jan 5, 2010 4:35:54 PM

Just to follow up, because I find your anti-elitist posing more obnoxious that actual elitism--do you have any evidence that Scalia's (or anyone else's) hiring comes anywhere near "nepotism"? I'm familiar with the resumes of a few SC clerks, and they are, across the board, the most impressive legal resumes I've seen. I did well enough in law school--law review, circuit clerkship. But it was readily apparently to me that my qualifications just weren't on par with those in my class who went on to be SC clerks.
Might it not be that the smartest and most qualified people go to places like Yale, Harvard, and Stanford in the first place? I'd be more sympathetic to your argument if the hiring was based on undergrad institution, since the decision about what college to attend is made much earlier and is more influenced by family/cultural/economic factors.

Posted by: Jay | Jan 5, 2010 4:44:18 PM

You are talking about book learning, with their averages of 4.0. Book learning looks to the past. Leadership is decision making for the future with incomplete information. The Big Ten grads are likely best at that effort. When Scalia mistakenly selected an OSU grad, he got the best. That is because the average is better than the top of the Ivy pool in real world leadership rather than regurgitation of texts about the past.

Take the Supremacy. Not an Ivy grad. Unlikely to be hired to clean the floors of an Ivy school. As no Ivy grad did, it took him minutes to spot the following, 1) cult nature of lawyer profession; 2) indoctrination nature of law education; 3) supernatural doctrines at core and Daubert applies to Criminal Procedure; 4) origin of these in Scholasticism, making them unlawful; 5) all goals of all law subjects are in failure, save one, rent seeking (Posner hints at it in his economics book, the Supremacy made it crystal clear and easy to grasp); 6) supernatural core doctrines violate the Establishment Clause; 7) the dose-response curve applies to all remedies; 8) 123D solves the problems of youthful indiscretion, of innocence, of economic class disparity in the treatment of criminals by the criminal justice system; 9) lawyers caused 9/11; 10) this country must be saved from this treasonous criminal cult enterprise.

Most of these came from the high school education and freshman Western Civ 101.

The Ivy League, as a generality, hate the America we love. They should be defunded from all government grants and privileges. Their treason indoctrination and training camps should be closed with air support and cannon fire. They are no better than Al Qaeda bases, morally speaking, and far less damaging.

Posted by: Supremacy Claus | Jan 5, 2010 9:14:18 PM

"As no Ivy grad did, it took him minutes to spot the following"

Weren't you claiming to be a woman a few posts ago?

Posted by: Jay | Jan 5, 2010 11:58:37 PM

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