published Sunday, May 2nd, 2010

Supreme Court in need of some regional diversity


Associated Press Writer

WASHINGTON — Forget liberal vs. conservative justices. The Supreme Court is way out of regional alignment: It’s heavily tilted toward the Northeast corridor and could become even more so as President Barack Obama prepares to fill an upcoming vacancy.

Five of the nine justices have strong ties to Boston, New York and central New Jersey. Chief Justice John Roberts is a Midwesterner raised in Indiana, but he went to college and law school at Harvard and has spent his entire professional life in Washington.

Even Justice Clarence Thomas, who stresses his Georgia roots, has lived and worked in Washington since 1983.

Eight justices have Ivy League law degrees, which explains this joking response when a law student asked Roberts if too many justices came from elite schools. No, the chief justice said, “Some went to Yale.” The only non-Ivy Leaguer, Justice John Paul Stevens, is leaving the court at the end of this term; he graduated from Northwestern.

At least three of the known, serious candidates to replace Chicago native Stevens fit the Northeastern profile: Solicitor General Elena Kagan, appeals court Judge Merrick Garland and Harvard Law School’s dean, Martha Minow. Garland and Minow were born in Chicago. But, unlike Stevens, they studied, worked and lived on the East Coast as adults.

Not since the Allegheny Mountains (ranging through Pennsylvania, Maryland, West Virginia, and Virginia) were the western frontier of the newly created United States has the high court’s membership been so concentrated.

Diversity on the court often is measured by gender, ethnicity, religion and race, and the current candidates are being assessed by those measures. But there could be some value, both in the politics of the nomination and a familiarity with issues a new justice might bring, in choosing someone who lives far from Interstate 95, the principal north-south route along the Eastern Seaboard.

“The impetus to appoint someone from the West is a really good one. Geographical diversity is important on the court. Do you really want water rights issues decided by people from Amtrak’s Northeast corridor?” said Roy Englert, a Harvard-educated Washington lawyer who argues regularly in front of the Supreme Court.

Two Westerners and two from the Midwest are on Obama’s list. Homeland Security Secretary Janet Napolitano was Arizona’s governor and appeals court Judge Sidney Thomas is from Montana.

Appeals court Judge Diane Wood lives and works in Chicago, and brings her University of Texas law degree to the diversity scale. Michigan Gov. Jennifer Granholm, though a Harvard graduate, was born in Canada. She grew up in California and graduated from the University of California at Berkeley.

Former Georgia Supreme Court Justice Leah Sears is the only person on Obama’s list who lives in the South.

Lucas A. “Scot” Powe Jr., a Texas law professor, said he would prefer that Obama select someone who hasn’t been a judge — all nine justices were federal appeals court judges — rather than worry too much about geography.

Yet Powe said he believes that the late Chief Justice William Rehnquist and retired Justice Sandra Day O’Connor, who both lived in Arizona before coming to Washington, displayed their Western influence in some decisions that gave power to the states at the expense of Congress.

“As a Westerner who’s lived in the East several times in my life, I know attitudes are just different in the West,” said Powe. “There’s more of an optimism, more of a willingness to move, although there’s a greater attachment to the land.”

Lee Epstein, a Northwestern University law professor, has begun to look at whether there’s any correlation between geography and voting patterns in Supreme Court cases. Her research is at a preliminary stage.

Should anyone care about this? “I don’t know,” Epstein said. “But in one sense, it’s curious that the president doesn’t think about this more or that the Senate doesn’t think about this more. Senators have constituent interests.”

When President Franklin Delano Roosevelt chose Iowa federal judge and Kentucky-born Wiley Rutledge for the court in 1943, the nominee wondered how the president settled on him, said retired University of Virginia professor Henry J. Abraham, author of a book on Supreme Court appointments.

“FDR said, ’Wiley, you’ve got geography,”’ Abraham said.

President Richard Nixon probably was the last chief executive to weigh regional interests, having nominated three Southerners to the court, Epstein said. The Senate rejected Judges Clement F. Haynsworth Jr. of South Carolina and G. Harrold Carswell, who was born in Georgia, and later confirmed Justice Lewis Powell of Virginia

Three justices on the current court were born or raised in New York City — Brooklyn-born Ruth Bader Ginsburg; Antonin Scalia, raised in Queens; and Bronx native Sonia Sotomayor.

Manhattan-born Kagan would make four, but Obama could make the case for a certain geographical diversity all the same. Of the city’s five boroughs, only Staten Island would be unrepresented.


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hamptomjp said...

The following applies to Kagan as it did for Sotomajor:

This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk's collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.

Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.

Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor's diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.

Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.

A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.

May 11, 2010 at 12:43 p.m.
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