Thursday, May 6, 2010

From the perspective of an atheist, female practitioner who attended a Big 10 school and represents indigent defendants

Whenever there is an opening on the Supreme Court, a debate rages (well, ok, maybe not rages) about what the next Justice should look like.  Should it be a man or a woman?  Black, Asian, Latino/a?  Protestant ,, Jewish, or atheist?  From some law school other than Harvard or Yale?  And this discussion inevitably prompts the ludicrous response that the next Justice should be the best candidate available.  Which I want to say is the dumbest response possible, but to be nice, I'll just say it's the most naive, simple-minded response possible.

There is no best candidate available.  For most jobs out there, there is no best candidate available.  There are always several applicants who could do the job well, so choices are often made on some factor beyond sheer skill for the job.  That's even truer for this particular job.  It's not like the president can look through the hundreds of federal appellate court judges, state supreme court justices, law professors, and practitioners in the country and find the ONE who is better suited to serving on the highest court than all the rest of them.  There are easily a hundred people who have the legal skills necessary to serve on the top court.  Each of those hundred people could be justified as the best candidate available depending on what factors beyond legal skill are identified as being significant at this time.

So how should a president narrow down that crop of qualified candidates to decide which one person to nominate?  Of course a president should consider demographics of the court.  Of course a president should ensure that that body of 9 persons who decide so many issues so central to all of us doesn't become too homogeneous.  So many issues the court decides rely on the standard of a "reasonable person".  Judging such a standard necessarily requires a variety of perspectives so that the best possible standard can be reached.  Diversity on the court is a valuable asset.  Taking it into consideration when choosing from that large pool of best candidates is something any president should do.  Stacking the court with too many of any one type of person is something that should be actively avoided.

In that light, I was thrilled to read this piece about President Obama's hopes for his Supreme Court legacy.  I would love if this president could permanently alter the gender balance on this court.  I do not want a court stacked with women, but I do want a court that is not stacked with men.  Just because there are currently two women sitting on the court when for so long there were none does not mean there is not still an obvious gender imbalance on the court.  2 women out of 9 is still a small minority and 3 women out of 112 is a miniscule minority.  With his last court pick, I made it quite clear that he simply HAD to nominate a woman.  If he gets two or three more picks in his presidency and nominates women to fill all those spots, it would still only be a dent in the historical gender imbalance.  (Current tally is men: 109, women: 3.) 

So, once again, I will suggest that the president should select a woman.  From a  non-Ivy League law school (Big 10, perhaps).  How about a person not affiliated with any religion?  And it might be a good idea to reach away from the federal appellate courts into the realms of state courts or even plain old practitioners.  Perhaps even practitioners who have on occasion represented indigent defendants.   It really is a worth, even necessary, endeavor to make sure not all 9 of our high court's Justices look at issues from the same perspective.


Burt Likko said...

No complaints about Elena Kagan? Personally, I sort of like that she is coming from a primarily academic background rather than a judicial one. And she even worked for a living in a courtroom for a short portion of her career.

Lisa Johnson said...

I'm pretty happy about Kagan. Like TL, I like that she hasn't been on the court. However, it seems that Obama prefers to stick with the Ivy League. Maybe he figures if they're non-traditional in one way, then their IL background gives them more credibility. I wish that society in general could just get over it. But not likely...

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