Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below.

Lawrence points to the Supreme Judicial Court of Massachusetts, whose members attended five different law schools, and most of whom had trial court experience before joining the SJC. A similar success story can be found in the Colorado Supreme Court of the late 1990s, whose members’ individual characteristics combined to create a remarkably well-balanced whole. That court was exceptionally diverse by gender, race (black, white, and Hispanic), and religion (Protestant, Catholic, Jewish, and Greek Orthodox). It was also well-balanced as a matter of geography (with judges drawn from different parts of the state); previous practice experience (trial judges, prosecutors, public defenders, academics, and private practitioners); law schools attended; and even ideological outlook.

The secret to this strong balance was in Colorado’s system of judicial selection. All seven members appointed between 1987 and 1998 were selected by the same governor, Roy Romer (a moderate Democrat). And Romer’s own choices were shaped by Colorado’s merit selection system, in which an independent nominating commission presented three candidates for each vacancy, and the governor was required to choose one. This system — while not guaranteeing that the best candidates would make it to the final slate — certainly prevented poor to middling candidates from advancing. Moreover, having been presented with three qualified candidates each time there was an opening, the governor was free to choose any of the three that he thought best. Romer was exceptionally skilled at building a court that enjoyed widespread demographic and experiential diversity, and he was aided by a twelve-year tenure which eventually gave him the ability to create an entire court of his design.

In states in with nominating commissions, conscientious governors, and reasonable judicial turnover, this type of careful court design is possible. But it doesn’t work that way in most states, and certainly not at the federal level. Several states choose their appellate judges through contested elections, in which only a limited set of characteristics matter to the voters. Unsurprisingly, party affiliation is the only relevant consideration. At other times, geography plays a decisive role: Oregon and Illinois, for example, require supreme court election by geographic district in order to prevent urban voters from pushing out rural candidates. Put simply, voters are not concerned with building a carefully balanced court; they are concerned with choosing a particular candidate based on a much more limited set of criteria. Under these conditions, comprehensive court diversity is effectively unachievable.

Moreover, the model of success found in states like Massachusetts and Colorado is impractical to replicate at the federal level. Partisan division, short presidential terms, life tenure of judges, and an increasingly politicized nominating process all contribute to narrowing and sharpening the President’s choices.

At least two strategic considerations counsel the President to nominate a sitting appellate judge for the Supreme Court. First, choosing a federal appellate judge opens another vacancy for the President to fill, creating a cascade of judicial appointments and furthering the President’s judicial legacy.

Second, by selecting an appellate judge with elite educational bona fides, the President eliminates two possible grounds for opposing the nominee. Removing grounds for opposition is important, because in the current era both political parties already try to use Supreme Court nominations to advance their political agendas. For Republicans, that means prioritizing (originalist) ideology; this is why President Trump’s adherence to the Federalist Society-approved list of potential nominees is so important for his supporters. For Democrats, it means playing up identity politics; Joe Biden’s recent, bizarre statement that he would “appoint[] the first African-American woman to the United States Senate” can only be understood as a botched pledge to appoint a (yet unnamed) black woman to the Supreme Court, thereby appeasing the wing of his party for whom that is a primary goal.

When a successful Supreme Court appointment becomes an important partisan goal, the party opposing the President is bound to find (or create) controversy with any nominee. The President can strike preemptively by nominating a sitting judge with sterling credentials, and publicly admonishing the opposition not to play games with the confirmation of such a highly qualified candidate. Appellate judges with elite educations fit that bill; other choices, even if they are excellent lawyers, do not. (See Miers, Harriet.) Indeed, in the current environment, it is hard to see any President nominating a public defender, private practitioner, corporate counsel, pure academic, or politician to the Court — notwithstanding the occasional floating of names like Senator Mike Lee and former President Barack Obama.

Still, beyond the Supreme Court, there is some good news on the experiential diversity front. First, the federal courts system as an institution does make some effort to capture the experience and perspective of both the practicing bar and legal scholars. The various committees of the Judicial Conference of the United States, for example, have dedicated slots both for practitioners and academics. (All are appointed directly by the Chief Justice, who has sole discretion in populating the committees.) These practitioner and academic perspectives are important for rulemaking and other federal court activities. To be sure, the practitioner and academic members of these committees are themselves elite members of the profession, and the Court certainly does not solicit their views on pending cases. But one would hope that regular contact with members of the bar in a work group (as opposed to an adversarial) environment would at least marginally influence judges’ views and beliefs in the cases that come before them.

Futhermore, there is a wealth of diverse practice experience in the federal judiciary — it’s just found in the lower courts rather than the Supreme Court. Consider, for example, trial judge experience.  As Lawrence points out, among the Supreme Court Justices only Sonia Sotomayor presided over a trial bench. But on the Courts of Appeal, it’s very different: 20% percent of Trump’s appointees to date came directly from the trial court bench; significantly, so did about 42% of Obama’s appointees. Indeed, both Trump and Obama sought judges with a wide range of practice experience at the time of their nominations. Trump has leaned more heavily toward state appellate judges, government attorneys, and those in private practice, while Obama showed greater favor toward trial judges and academics, but both looked to a wide range of practice experience.  (Click here for a more detailed breakdown.)

Moreover, federal appellate judges were also educated at a much broader range of law schools than the Justices of the Supreme Court. To be sure, many appellate judges do have elite backgrounds: about one-third of both Trump and Obama appellate appointees earned a J.D. from Harvard, Yale, or Stanford. But two-third of their appointees did not, and in fact many earned their law degrees from a non-elite program. (Indeed, more than half of Obama’s appointee’s graduated from law schools outside the traditional T14. Click here for more details.) The diverse range of educational and practice experience can be found among federal district court judges as well.

The large pool of lower federal judges with diverse educational and practice experience provides reason to believe that at some point in the future, these qualified jurists will “trickle up” to the Supreme Court. True, the current structural obstacles remain. But they can be overcome by a visionary president who is willing to take a risk on an outstanding candidate with slightly less traditional qualifications, and a open-minded Senate and mainstream media who will reserve judgment on that basis.

I know what you are thinking. But these are unusual times, and one is allowed to dream.

This post is part of a larger exchange on the topic of judicial qualifications and the nominating process. For Lawrence Friedman’s reply, click here.

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