Obama's challenge: Selecting a truly diverse justice

McClatchy NewspapersMay 5, 2009 

WASHINGTON — Supreme Court diversity could mean many different things to President Barack Obama, if he wanted it to.

Justice David Souter's pending departure will leave Obama with a court consisting of six white men, one white woman and one African-American man. Even if the president appoints another woman, as many expect, the court will remain strikingly uniform.

"We have a Supreme Court now that doesn't look like the American bar, let alone the country," Stanford Law School professor Pamela Karlan noted. "There are a lot of things this court is missing."

The Supreme Court, for instance, has never had a Latino justice, an Asian-American justice or an openly gay justice. None of the current justices has disabilities. None of the current justices has ever held elected office.

Potential candidates exist in each category, if Obama wants to opt for one.

Sonia Sotomayor, a judge on the New York-based 2nd U.S. Circuit Court of Appeals, was born to Puerto Rican parents. Former Stanford Law School Dean Kathleen Sullivan has identified herself publicly as gay in recent years. David Tatel, a highly regarded judge on the U.S. Court of Appeals for the District of Columbia Circuit, is legally blind. Outgoing Yale Law School Dean Harold Koh, now nominated to serve as the State Department's legal adviser, is Korean-American.

"The president . . . will be actively engaged in discussions both on the right type of candidate to pick (and on) ensuring diversity in their background and experience," White House spokesman Robert Gibbs said.

Diversity can be more than a matter of appearance, although researchers continue to study just what impact diversity can have. Female appellate judges, for instance, were more likely to rule in favor of plaintiffs in sex-discrimination cases, a 2005 Yale Law Journal study found.

"Wise old men and wise old women sometimes reach different conclusions," study author Jennifer L. Perisie concluded.

In a lighter vein, Sullivan told a 2006 audience at the University of California, Los Angeles, in a Williams Institute lecture on sexual orientation and public policy available on YouTube that "gay men and lesbians have our rituals, our creeds, incantations and special ways of dressing." Sullivan didn't respond to an e-mail seeking an interview.

Diversity, moreover, can cover many categories. In schooling and religion, too, the present court is cut from common cloth. Eight of the nine justices earned their law degrees from Ivy League schools. Six have never served in the military. Five are Roman Catholic.

In many ways, the court has always been monochromatic. The five current justices who graduated from Harvard Law School sustain a tradition of dominating the court. Harvard, Obama's alma mater, has produced more than twice as many Supreme Court justices over the past 220 years as the next most prolific law school.

Religious fidelity appears even more de rigueur: Only one justice in the court's history failed to declare membership in a church, and that was in the mid-19th century.

In other ways, however, the court has lost some of its earlier character. The 2006 retirement of Sandra Day O'Connor, a former Arizona state senator, took away the court's last seasoned politician. In the past, politicians ranging from governors such as Earl Warren to senators such as Hugo Black and even presidents such as William Howard Taft have applied their coalition-building skills on the court.

"I would love to see someone with political savvy," Karlan said.

Harvard Law School graduate Jennifer Granholm, for one, has twice won election as governor of Michigan; the last time, in 2006, with 56 percent of the vote. Harvard Law School graduate Deval Patrick likewise won election as the first African-American governor of Massachusetts, also with 56 percent of the vote.

Neither Granholm nor Patrick has served as a judge. Technically, that's not a Supreme Court job requirement. Franklin Delano Roosevelt's nominee Robert Jackson, esteemed as a great Supreme Court justice, never even graduated from law school. Warren won election three times as governor of California but never served as a judge before being named chief justice in 1953.

Obama once cited Warren as an example of what he's seeking, though he later suggested that direct courtroom experience also would be taken into account.

"I will look for those judges who have an outstanding judicial record, who have the intellect and who hopefully have a sense of what real-world folks are going through," Obama said while campaigning.

The White House hasn't hinted when the president will disclose a nominee to replace the retiring Souter.

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McClatchy Newspapers 2009

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