Weighty questions indeed for Supreme Court pick

At Volokh Conspiracy, one of the best lawyer blogs around, a tongue-in-cheek take on adding diversity to the Supreme Court when replacing John Paul Stevens:

With Justice Stevens having announced his retirement, all eyes now turn to President Obama’s purported short list: Elena Kagan, Merrick Garland, and Diane Wood. Obama will have a tough choice, as he is picking from three very different candidates. No matter who he picks, his selection is likely to break down some major barriers.

First, consider the broad range of choices Obama faces. His shortlist consists of former law clerks to a wide range of the liberal Justices of the 1970s and 1980s. Obama must choose between a Brennan clerk (Garland), a Marshall clerk (Kagan), and a Blackmun clerk (Wood). Further, the shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)?

Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices.

No matter who he chooses, Obama will continue to break new ground, or at least help bolster some of the low numbers of people of certain arguably underrepresented backgrounds on the current Court. For example, Elena Kagan would become only the second former Harvard professor presently on the Court (joining Justice Breyer). Either Kagan or Wood would be only the second Chicago professor (joining Justice Scalia). Further, Merrick Garland would be only the second Justice on the Court who went to Harvard College; then Harvard Law School; then clerked for Henry Friendly; then clerked at the Supreme Court; and then worked at DOJ and was a partner at a big DC law firm before serving on the DC Circuit (joining Chief Justice Roberts).

Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.

This list on Wikipedia details the education of 64 justices, 33 of whom attended an Ivy League law school. Wood (University of Texas) is the only one of these three not to have attended an Ivy League law school, although the Volokh post makes clear that her career has closely tracked those of other justices past and present.

This is not an “anti-elitism” rant. Obviously, we want some of the brightest minds in our nation to serve on the Supreme Court, and some very bright minds in our nation attend Ivy League schools, clerk for Supreme Court justices and teach at elite law schools. But I think it’s safe to say that many more bright minds, even in the legal field, don’t follow that track.

So, when the nomination comes and we are lectured about the importance of diversity on the court, let’s keep in mind that there are different kinds of diversity — and that, whomever the president chooses and whatever he or she looks like, we’re not exactly talking about the man or woman next door.

(H/t: Instapundit)

56 comments Add your comment

HDB`

April 12th, 2010
9:49 am

Leah Sears-Ward!! She’s be EXCELLENT on the Supreme Court!!!

hryder

April 12th, 2010
10:02 am

A Supreme Court Justice could and can be an individual who possessess the ability to think in a logical and rational manner. A law degree is not required, the minutia is handled by law clerks. I am suggesting that someone such as Walter Williams or William(Bill) Bennett be nominated.

lmno

April 12th, 2010
10:09 am

I would love to see a Justice with actual trial experience elected. A criminal defense attorney would be my pick.

jconservative

April 12th, 2010
10:16 am

Continuing with the “tongue-in-cheek take” on a new nominee, let us speak up for that large under represented “majority”, Protestants. With six Catholics and two Jews on the Court, doesn’t the “rule of diversity” require a Protestant?

May I nominate Billy Joe Wilson, NOD law school, practicing divorce attorney and all around good guy. Drives a pick-up. And most important he is protestant. A former Methodist who later became a Baptist and is now a Presbyterian, he is a perfect candidate and represents three large protestant “interest” groups.

One potential problem is he is a former Republican who publicly supported Ross Perot. This could cost him a lot of Democratic votes in the Senate.

Mallory

April 12th, 2010
10:26 am

How about an Asian Jew who graduated from UofA Law?

Morrus

April 12th, 2010
10:38 am

Vote out the incumbents and start over

John

April 12th, 2010
10:42 am

I fail to see the relevancy to Kyle’s post, Morrus.

Intown

April 12th, 2010
10:50 am

Obama needs to go with a white protestant. When Stevens is gone, there won’t be any on the Court anymore.

Chris Broe

April 12th, 2010
10:52 am

The Tea Party have a slogan ready to protest whoever Obama nominates to fill the empty seat: Kill the Fill! Kill the Fill!

I think it’s time we…….

Defund the Tea Party. Defend America.

Defrock the religious right. Defrog the gene pool.

Differ republicans. Defer democrats.

Ragnar Danneskjöld

April 12th, 2010
10:57 am

Alas, true diveristy on the court would mandate appointment of one such as the late Eddie (”Moose”) Crane.

The Udder Side!!!

April 12th, 2010
11:04 am

The sad part about this ( or any other) SCOTUS nomination is the the members of the Senate will find a way to politicize it…..

The Udder Side!!!

April 12th, 2010
11:05 am

Ragnar Danneskjöld

April 12th, 2010
10:57 am

Or maybe the not so late Frasier Crane!! LOL

Ray Pugh

April 12th, 2010
11:12 am

hyrder,

moron – a law degree is required to be a supreme court justice in the same way an MD is required to be a medical doctor. Same level of complexity, same level of expertise required. Law clerks do “handle the minutia,” such as compiling precedent, but the justices must be able to apply the current law (and yes, policy considerations) to the facts of the case. Thanks for playing…

CJ

April 12th, 2010
11:17 am

Before he even names his nominee, Kyle is arguing that he or she isn’t diverse enough because Obama has ignored some of the brightest minds in the nation who, perhaps, may have graduated from Jerry Falwell U. (i.e. Liberty University) or Pat Robertson U. (i.e., Regent University).

Kyle should go ahead and post his comments now about what is wrong with Obama’s nominee because, undoubtedly, he already knows what he is going to say (and so do we). Too radical, yada, yada, yada. Simply leave some blank spaces where the person’s name should go, blank space’s for one or two out-of-context quotes from a couple of decades ago, and some blank spaces for whichever quality that the right will choose to demonize this time (e.g., empathy, compassion,…). We’ll fill in the blanks later.

The Udder Side!!!

April 12th, 2010
11:30 am

Ray Pugh

April 12th, 2010
11:12 am

Do some research turd-boy!! The Constitution makes no mention of any specific educational requirements to be a justice…. In fact lest athan 50 of the 111 Justices have Law school degreees…

CJ

April 12th, 2010
11:43 am

Pat Leahy made a great comment yesterday on Meet the Press, reminding viewers that Republicans, who complain about legislating from the bench, installed among the most activist courts in history:

“They rewrote the law to say that–so they said that women could be paid less than men. They rewrote the law to say that age discrimination laws won’t apply if corporate interests don’t want them to. They rewrote the law to give ExxonMobil a $2 billion windfall. And they rewrote the law to say that corporations could come in and meddle in elections in this, in this country.”

Of course, such facts won’t stop so-called conservatives from continuing to accuse Democratic appointees of being activist judges.

The Snark

April 12th, 2010
11:51 am

It would be nice to have someone up there who actually tried cases and represented real people. Brains are important, but this court is way too tilted toward academics.

Will

April 12th, 2010
11:57 am

Kyle:

As someone who worked for a Washington political organization that mainly made a profit from donations rather than actually “moving the needle” on a political item, let me share with you how this works.

First, President’s Obama nominee will win confirmation, mostly like without a serious fight or delay. Of the 10 republicans who voted for the last nominee, at least five will vote with democrats to cut off debate and at least three will vote for confirmation.

That said, this is how it works. Organizations like the one I worked for will be thrilled for the money making potential this opportunity presents. This organization will send out targeted solicitations to potential donors that will read something along the line like, “help, help the sky is falling. The bad guys could stop this nomination. Send money so that doesn’t happen”. The other philosophical side will DO EXACTLY THE SAME THING but the solicitation will read, “Help, help. President Obama will put this bad person on the Court unless you send us money so that we can stop this”.

Shortly before I left my Washington work, my organization was looking at layoffs because of declining revenue. Like a gift from God, President Bush got a chance to nominate Judge Alioto to the Supreme Court. There were literally tears in our eyes as the solicitations were prepared as we knew donations would pour end and our jobs saves. Of course we knew we could (or even would) do nothing to stop this nomination but that was not the point – this was a money making opportunity that pays off like no other !!

Jefferson

April 12th, 2010
11:58 am

You can bet who ever, they will be opposed by the minority, as is standard practice. Jesus would face opposition if nominated.

David S

April 12th, 2010
12:05 pm

Whoever he picks, we can be sure that liberty, freedom, and the rule of law will suffer from their future decisions. There certainly won’t be any support for the Bill of Rights, state’s rights, human rights, economic freedom, private property, self-determination, or anything else we used to value in this country. Not that the Supremes have supported any of those things for at least 100 years or more (well, occasionally a justice or two makes a good decision).

Andrew Napolitano is the only person who should be in consideration for the nomination. At least with him (despite his current employement at Fox) we would get someone who actually cares about freedom and liberty (again, why he still has a job at Fox is a mystery, especially with those positions).

Kyle Wingfield

April 12th, 2010
12:21 pm

Will: No doubt.

CJ: C’mon, the recriminations against the as-yet-unnamed won’t begin for at least a few days more.

Jack from Sandy Springs

April 12th, 2010
12:27 pm

I would like to see someone with varied experience and think the Gov. of Michigan is a good example of someone different. BUT, she went to Harvard Law and I would really like to see someone from Stanford, UC Berkley, Texas, Florida or one of the other great law schools and who has a strong resume with some real world experience. I am tired of all these professors and government types with no experience in business telling business how they should run themselves……

Keep up the good fight!

April 12th, 2010
12:28 pm

Jefferson…let me point out that Buhda, Ghandi, Martin Luther King, and probably a number of our founding fathers would likely face opposition. Adams would just for having defended the Brits.

And frankly, anyone who suggess a Fox employee should really consider some serious counseling.

Swede Atlanta

April 12th, 2010
12:29 pm

Hryder….You are correct there is no requirement that a Justice be a licensed attorney or even have attended law school.

I would suggest, however, that appointing someone without legal training could be disastrous. I am not an elitist by any means but as they told us in law school orientation, law school is less about the law than it is developing the ability to think “like a lawyer”. The socratic method that is used in many law schools is but one tool used to develop this set of skills and perspective on any given set of facts.

Today’s Justices must exhibit the ability to navigate among common law, case law and statutory law. It is essential they understand the relationship between these aspects of our jurisprudence in order to be effective on the court.

Keep up the good fight!

April 12th, 2010
12:39 pm

Jack….well I guess when it comes to the criminal cases, some business people have great experience from their own criminal activities. Really though, do you think the court only decides business cases?

Ray Pugh

April 12th, 2010
12:56 pm

Udder,

Perhaps I should have chosen better verbage while insulting you: I did not say it was constitutionally required to hold a law degree, but rather to properly do the job. As a practicing constitutional lawyer, I’ve done plenty of research, enough to know the disastrous implications of putting someone w/ no legal training on the bench. Oh, and maybe you should do some research into some better put-downs than “turd-boy” – you sound like Stan Marsh’s headgear-wearing sister….

Ragnar Danneskjöld

April 12th, 2010
1:01 pm

Dear Swede @ 12:29, everything you say about what “they” say at law school orientation is true. “They,” however, are wrong on the bigger picture. Law school is primarily designed to teach one to disassociate oneself from the consequences of one’s actions. The only skills taught are (1) magnifying the magic of clever words and (2) perpetuating the secular clergy. There is merit to the idea of having skilled practitioners – i.e., people who know the Rules of Civil Procedure and Rules of Evidence – at the Appellate Court level. However, the people at the Supreme Court level need to be focused on the economics of their decisions.

DEWSTARPATH

April 12th, 2010
1:05 pm

John

April 12th, 2010
10:42 am
“I fail to see the relevancy to Kyle’s post, Morrus”

– To John: “morrus” fails to see the relevance in ANY post.
For example – type “morrus” in the AJC search engine.

Notice anything ?

dewstarpath

April 12th, 2010
1:08 pm

The Udder Side!!!

April 12th, 2010
11:04 am

– Great post. Unfortunately, it’s been a reality for every
issue presented on the Hill.

dewstarpath

April 12th, 2010
1:12 pm

Ray Pugh

April 12th, 2010
12:56 pm

– I used to be somewhat dismayed to know anything about
“South Park”, but if a constitutional lawyer is a fan, that lifts
some of the guilt off my shoulders!

Ray Pugh

April 12th, 2010
1:32 pm

dewstarpath,

I’m 27 – that may have something to do w/ it :)

The Udder Side!!!

April 12th, 2010
1:50 pm

Ray Pugh

April 12th, 2010
12:56 pm

I’m rubber and you are glue….

JF McNamara

April 12th, 2010
2:14 pm

There’s a lack of diversity, because its a very prestigious job that requires a very precise wide ranging skill set. There’s probably not more than 10 people who understand the job fully and have the depth of knowledge to do it. That’s why the candidates look so similar.

Would the author be complaining if they were interviewing for CEO of a fortune 500 company and all the candidates were Ivy league graduates with experience as Vice Presidents at other fortune 500 companies?

Would he suggest they go to a small business owner who graduated from a non Ivy league school?

My guess is no.

Scott

April 12th, 2010
2:42 pm

ABC News is reporting that a “senior administration official” has confirmed that Leah Ward Sears is on the “short list”. This is how they first floated Sotomayor’s name. I’m starting to think that she really is the pick no joking aside

Scott

April 12th, 2010
2:43 pm

The Tar and Feathers Party

April 12th, 2010
3:56 pm

My Gawd Kyle, another year and no Pulitzer! Do they not know you are IVY LEAGUE? Cindy Lou’s got her’s, moron booky will never git one, but you are IVY LEAGUE, you are due.

The Tar and Feathers Party

April 12th, 2010
3:59 pm

Blacks are only 13% of the population, and much less of the college educated, and even less of the professional class. They do not deserve two seats on the SC, one is more than enough. I am sure there is a well qualified, white, male, Protestant available who can run rings around the Kenmore girl, what’s her name, Sears?

No More Progressives!

April 12th, 2010
4:27 pm

Keep up the good fight!

April 12th, 2010
12:28 pm

“And frankly, anyone who suggess a Fox employee should really consider some serious counseling.”

I guess you’re an expert on Andrew Napalitano.

You ought to read his short bio.

Tom

April 12th, 2010
4:28 pm

Ragweed @ 1:01 is exactly right that jurists “at the Supreme Court level need to be focused on the economics of their decisions.” Paul Krugman for SCOTUS!

Kyle Wingfield

April 12th, 2010
5:05 pm

Scott, I’ve seen that report, too. Sears would indeed add a dimension of judicial diversity — no current justice had extensive experience as a state-level judge, only federal experience. (Retired justices Sandra Day O’Connor and David Souter both had state-level experience.)

Sears’ state-level experience might make for an interesting dynamic on the court given the increasing tension between federal and state powers (see: the ObamaCare lawsuits).

Oh Goody!

April 12th, 2010
5:32 pm

Billy Bob Thornton! He has as much experience running the country as Obama!

Devildog

April 12th, 2010
7:36 pm

As a direct descendant of John Rutledge of South Carolina, a member of the very first Supreme Court of the United States, I have no problem with Sears. She has good credentials, experience and would make a fine justice. Doesn’t hurt that a fellow Marine, Zell Miller, thought she was a good pick, too.

Michael H. Smith

April 12th, 2010
8:13 pm

Kegan would be my pick among the liberals and would be the best way for Obama to have shown his regrettable bitter angst toward the Court’s campaign finance decision, instead of his highly unbecoming and unacceptable State of the Union public rebuke of the Justices. Whereas Garland might find smoother Senate confirmation at a time when Obama would be cautious not to pick another bruising fight amidst the present fray.

Sears is problematic:

Also reportedly on the short list is Former Georgia Supreme Court Justice Leah Ward Sears. I am not taking her as a serious candidate. She was fined in 2007 for violating state ethics laws for accepting improper campaign contributions. This White House is extremely sensitive — in this political environment — about giving Republicans anything they could make an issue out of. A nominee who was fined for ethics violations would be like shooting fish in a barrel for Republican Senators Jeff Sessions and Jon Kyl.

http://www.cbsnews.com/8301-504564_162-20002297-504564.html

Grace

April 12th, 2010
10:09 pm

Great choice. Finally.

Chris

April 12th, 2010
10:31 pm

Judges are supposed to be non-partisan. Leah Sears is extremely LIBERAL. But the media will give Obama a free pass on this like everything else..

tron

April 12th, 2010
10:39 pm

Hey Ray P,

Does your last name rhyme with eewwwwwww?

GoodVoter

April 12th, 2010
10:46 pm

Leah Sears…now there’s a pick for the Supremes we NEED. Fair and balanced. Gotta get her on the court.

Oh Goody!

April 13th, 2010
8:28 am

Obama should pick Rev. Wright.

Bombon

April 13th, 2010
9:48 am

Where were these “weighty” questions when the GWB administration was making court selections.

CrazyInGA

April 13th, 2010
10:34 am

In my opinion, being someone who supports the conservative republican movement isn’t my definition of diversity or inclusion. You people have a bad track record when it comes to race, gender, religion and sexual orientation. You will throw your “Own People” under the bus for not supporting the group as a whole. You hold true to the “either you are with us or against us” mentality.

So, in my opinion President Obama should choose someone who has a more enlightened view of the world. Because, you people think the world revovles around you and those who think, act and live as you do.