By Robert Barnes
Washington Post Staff Writer
Tuesday, May 26, 2009
Everyone talks about diversifying the Supreme Court. Maybe the time has come for a WASP.
There hasn't been a white Anglo-Saxon Protestant put forward in the five nominations since Justice David H. Souter came to the court in 1990. With Souter's impending departure, the demographic will be seriously underrepresented on a court that features five Catholics and two Jews.
White men, of course, have had a good run, even if not all of them were Protestants or Anglo-Saxon. There are seven of them on the current court, and they have accounted for all but four of the 110 justices in the court's history, who include two black men, two white women, no Hispanics (notwithstanding the disputed Justice Benjamin Cardozo, who served from 1932 to 1938), no Asian Americans and no Native Americans.
But gender and race are familiar. There are other ways for President Obama to make the current court, one of the most homogenous in history in terms of education and experience, look more like America.
For instance, he could pick someone who graduated from a public university.
He won't find anyone like that on the current court, even though about 75 percent of college students attend public institutions. Even Clarence Thomas, who grew up poorest among the current justices, skipped the state-school route and went to Holy Cross on a scholarship.
It's even more rarefied at the law-school level. Thomas has said he might have been happier if he had gone to law school at his home-state University of Georgia. Instead, he is one of eight current justices who attended either Yale or Harvard. (Ruth Bader Ginsburg left after two years in Cambridge, Mass., and received her degree at another Ivy League institution, Columbia.)
Only John Paul Stevens (University of Chicago, Northwestern Law) was educated in the heartland.
Of the potential nominees thought to be most seriously under consideration, advantage to Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit in Chicago, who has undergraduate and law degrees from the University of Texas.
But Wood does nothing to change another well-documented oddity of the current court: It is the first in history to be made up solely of judges who came directly from the appellate ranks. (There has been little talk this time around, as there usually is, of appointing a non-lawyer to the court. Justice Anton Scalia has said in the past that there are many reasons this is a bad idea, not the least of which is that "only a lawyer" would sit through the many Employee Retirement Income Security Act cases the court is asked to decide.)
Conservatives generally like the idea of appellate judges, who normally have a long track record of opinions to define their judicial philosophies. Progressives lately have been longing for the days when the court was populated with a more varied cast of characters. They note that the court that delivered one of the most important decisions of the 20th century -- Brown v. Board of Education -- had zero years of appellate experience.
Appellate courts have become "a quasi-academic priesthood," in the words of Ohio State University law professor Douglas Berman, "from which the next pope is chosen."
Those who study the court say the current justices are perhaps the most learned ever about the law, but the observers wonder whether they are the most disconnected from what Obama might call "real-life" experiences. And lately, folks have been making lists of things the current justices lack.
They spend much of their time on the intricacies of criminal sentencing, but once Souter leaves, none will have served on a state court. They endlessly debate Congress's intent and the nuances of legislation, but none has ever been a legislator. They define the contours of campaign contributions and the role of special interests, but none has ever run for public office.
That is why many think Michigan Gov. Jennifer M. Granholm (D) would add a different dimension to the court. Or Homeland Security Secretary Janet Napolitano of Arizona, who, like Granholm, served as attorney general and governor. The last justice who had served in elected office was Sandra Day O'Connor, and legal experts say she brought the court a measure of practicality and problem-solving that is part of a legislator's job of finding a majority. "Decide and move on" is how Lee Epstein, a political scientist and law professor at Northwestern, describes the style.
O'Connor, from Arizona, also provides another example of how to diversify the court. On the current court, only two justices, Stevens and Anthony M. Kennedy, hail from courts that are not on the Eastern Seaboard.