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April 27, 2010

Choosing the Next Watchman

In a recent New York Times op-ed, Geoffrey R. Stone, of the University of
Chicago, called attention to the disingenuousness of the argument that judges—in
particular, Supreme Court justices—are ever merely implementing the “original
meaning” of the Constitution. Indeed, every time a pundit or a politician
advocates for the appointment of judges who will “strictly construe” the
Constitution, we should remember there is not a judge on the Court—now or
ever—who did not believe he or she was not strictly construing the Constitution.
Whether a commentator agrees likely has as much to do with his or her feelings
about the result as it does the methodology the judge employed to determine the
meaning of the Constitution.

We will have another opportunity to revisit these issues when President Obama
announces his nomination of a successor to Justice John Paul Stevens. He has
said, as Presidents do, that he has no litmus test for potential nominees. At this
writing, two federal court judges—Merrick Garland of the Court of Appeals for
the District of Columbia Circuit and Diane Wood of the Court of Appeals for the
Seventh Circuit—as well as the Solicitor General, Elena Kagan, have been named
as the leading candidates.

Each of these attorneys attended an elite law school, clerked for a U.S. Supreme
Court justice, and has had a storied legal career. Garland is a former federal
prosecutor whom President Clinton nominated for the bench in 1997. Wood is a
former law professor and lawyer in the Clinton Justice Department; President
Clinton nominated her for the bench in 1995. Kagan worked as a lawyer in the
Clinton administration and was dean at Harvard Law School before assuming the
Solicitor General’s post.

As Timothy Egan, writing in the New York Times, recently noted, and as Renée
and I discussed in Jurist following the nomination of Justice Sonia
Sotomayor, debates about strict construction and litmus tests aside, the Supreme
Court is sorely lacking in diversity of experience. With the retirement of David
Souter last year, there is no justice on the Court with significant experience in
state government. With Justice Stevens’s retirement, there is no justice who did
not attend either Harvard or Yale for law school, and none who has not spent a
significant part of his or her career working in either academia or for the federal

Of the three leading candidates, only Judge Wood was educated outside of the
northeast, having attended the University of Texas for college and law school.
Why is this important? Because, when all the justices share similar educational
and professional experiences, the Court as a whole may be missing legal
perspectives informed by, say, the experience of having attended a law school
where doctrine is as important as theory, or of having worked in private practice
or in a state court system, where most American lawyers spend their days and
most cases, civil and criminal, are tried.

“In the end,” as Professor Landers and I wrote last year, “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.”

Lawrence Friedman

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