New 'Diversity' Needed for Supreme Court Nominees

JURIST Guest Columnists Renée Landers of Suffolk University School of Law and Lawrence Friedman of New England School of Law say that unless US Presidents embrace a broader view of "diversity" in future Supreme Court nominations, they may deprive the public of justices who may see the world and the legal issues it presents differently and more helpfully than justices whose views on law are shaped by essentially similar educational and professional experiences...



If confirmed as the first Hispanic to serve on the U.S. Supreme Court, Sonia Sotomayor will add long overdue diversity of ethnicity to the court's composition, as well as enhance its diversity of gender and economic origins. In other respects, however, Judge Sotomayor will not add much at all: the court's current members share with her a set of educational and professional credentials that reflect a narrow range of legal education and experience. In this regard, there is virtually no diversity on the court.

As noted by many commentators, Judge Sotomayor, like two current justices, Clarence Thomas and Samuel Alito, received her law degree from Yale, while five of the justices are Harvard Law School graduates (as is retiring Justice David Souter). Only one does not have an Ivy League law degree — Justice John Paul Stevens went to Northwestern.

Similarity in education is only one trait common to the current membership of the court. From their Ivy League educations, five justices were law clerks to federal judges, and four have been legal academics. All nine, moreover, served as federal appeals court judges, while seven worked in the Department of Justice, a federal prosecutor's office, or as a legal counsel to a federal agency or Congressional committee. Only Justice Souter had state experience before becoming a federal judge — first as New Hampshire attorney general and then as a judge in the New Hampshire court system at both the trial and appellate levels.

According to the American Bar Association, there are 200 accredited law schools and more than one million lawyers in the United States. Needless to say, many of the lawyers who did not graduate from Harvard or Yale are just as accomplished as their Ivy League counterparts. They count among their numbers many hundreds of respected law firm lawyers, general counsels to corporations and institutions, agency lawyers, prosecutors, and state and federal judges.

To suggest that a Supreme Court justice need not have a Harvard degree and a federal judgeship is not to say that legal acumen should be disregarded as a qualification for the job. But the lawyers who receive elite educations and subsequent federal employment have no monopoly on legal acumen. Few would argue, for example, that Justice Stevens is any less sophisticated in his approach to judicial decisionmaking or constitutional analysis because he did not attend an Ivy League law school.

Elite lawyers, moreover, do not necessarily produce superior decisions as Supreme Court justices. At the annual meeting of the Association of American law Schools in 1990, A. Leon Higginbotham, Jr., a long-serving federal judge and an award-winning historian of race, addressed the difference values make in judicial decision making. Rejecting what he called a "whispered or unarticulated elitism" among some law school professors, he described how four of the five justices in the majority in Plessy v. Ferguson — the 1896 decision in which the Supreme Court enshrined segregation into American law — were educated at either the Harvard or Yale law schools. The lone dissenter in the case, Justice John Marshall Harlan — who stated what we now understand to be correct, that separate is not in fact equal — was a graduate of the Transylvania College of Law.

That an elite education is not necessarily commensurate with superior legal argument was most recently demonstrated during the administration of President George W. Bush. The lawyers who advised President George W. Bush on his controversial national security policies — including his policies on the detention and interrogation of terror suspects — were drawn from the same pool of lawyers from which Presidents select Supreme Court justices. And in case after case challenging the Bush administration's policies, the arguments in support of increasing the executive's power and limiting due process protections for detainees have been found wanting.

It remains that the tradition of judging in the United States, especially at the level of the Supreme Court, involves exercising judgment and not just a technocratic application of settled law. In A Primer on the Civil Law System, James G. Appel and Robert P. Deyling describe how, in civil law systems, the judiciary is a civil service-like career track that law graduates join after passing qualifying examinations. They move up the judicial hierarchy based upon seniority and performance. They are viewed as performing important, but not creative functions. Unless Presidents branch out from the trend toward viewing the ranks of judges on the Courts of Appeal as the only credible candidates for the Supreme Court, the federal judiciary may well start to function like the civil law system career track.

In the end, by confining the shortlist of potential nominees to those lawyers with certain backgrounds, Presidents overlook the opportunity to add to the Supreme Court another kind of diversity, one that may be just as important as racial and gender diversity. These Presidents deprive the public of justices who may see the world and the legal issues it presents in ways that are different and more helpful than those justices whose views on the law were shaped by essentially similar educational and professional experiences.

Renée M. Landers is a past president of the Boston Bar Association and teaches at Suffolk University School of Law, where she is Faculty Director of its Health and Biomedical Law Concentration; Lawrence Friedman teaches constitutional law at New England School of Law.
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