14 July 2009

Diversity of Definitions of 'Diversity'

NB: I meant to publish this two months ago when JimPanzee wrote this original post at Porch Dog about the diversity of Supreme Court nominees. At the time, we did not know who the nomination would be. Now that Sotomayor's hearings are in swing, he has another post about diversity on the bench, namely, it is difficult to argue simultaneously that her ethnicity is important but her Catholicism is not, and vice versa.

Porch Dog has some very good comments on Supreme Court justice selections. I think the most important point is that people who want the next justice to be "representative of the diversity of America" dodge the question of which of the numerous dimensions of diversity they care about:*
Souter and the Pre-Replacement Squabbling | Porch Dog:

Nobody seems to care what percentage of justices are rural or urban, how many have been divorced, how many have served time in jail or smoked weed. Nobody seems to care which religions are represented on the bench or how many are first generation college graduates. Nobody seems to care how many southerners or northeasterners or westerners are represented, nor how many have served in the armed forces or worked as a waiter/waitress before law school.

There’s a lot of demographic concerns that aren’t even addressed by the complainers.
Very true.

You could also ask how many are single (none, I believe), how many were raised by single or divorced parents (ditto?), how many have any training in science and technology (again, none, I believe), and how many have expertise in foreign or historic legal systems (no idea). I'd also like to know how many have held jobs outside of the legal profession (just Stevens?), specifically how many have tried to run or help run a non-law firm business (almost certainly none), and whether anyone has worked in law enforcement (ditto).

I understand that if you're the kind of person who rises to such heights in your chosen profession you probably dove right in when you were young and didn't spend time traveling the world and running a retail outlet and serving in the merchant marines. To a certain extent it's unreasonable to ask for your best jurists to also have wracked up a bunch of other qualifications, but it's still worth asking what else they've done, if only to remind ourselves what our viziers are like. (Answer: they're homogeneous, and I don't mean just in terms of class or race.)

Here's Paul Campos on the current justices:
Every single one of them was a federal appellate court judge at the time he or she was nominated to join the court. None has held elective office. Only the retiring Souter has presided over a trial, and only the 89-year-old John Paul Stevens has served in the military.

Their education is even more uniform than their careers. Six attended Harvard Law School, while two others graduated from Yale. [...]

The career path to get on the court has become astonishingly narrow. Go to Harvard or Yale Law School, clerk for a Supreme Court justice, work for one of a handful of elite law firms, become a law professor at a top school or rotate into a fancy government position, then get appointed to a federal appellate court and wait for your name to be called.
Contrast that to the Warren Court (again, quoting Campos):
Chief Justice Earl Warren had been a three-term governor of California. Hugo Black and Sherman Minton had served in the Senate. Harold Burton was a former mayor of Cleveland. Stanley Reed had been in the Kentucky legislature, and was appointed by FDR to run the Reconstruction Finance Corporation at the height of the Great Depression. William Douglas was chairman of the Securities & Exchange Commission. Tom Clark had been a Texas district attorney.

Even the most academic member of the court, former Harvard Law professor Felix Frankfurter, had been deeply involved in nuts-and-bolts Progressive era and New Deal politics for decades.

The educational backgrounds of the justices were as varied as their careers. They graduated from state law schools all across the country, including Indiana, Alabama, Texas, and California. (Reed never even received a law degree.) Most of them served in the military, and three saw combat during World War I.
One of the things I've always liked about the Roman Republic is that patricians were expected to be able to fill magisterial roles of all types: lawyers, accountants, logisticians, warriors, judges, mayors, civil engineers. A man on the rise would oversee some infrastructure construction, govern a settlement in the provinces, subdue a barbarian tribe, and so on with a new job every couple of years as he worked up the ladder. I don't necessarily want Scalia to be able to lay out a highway, or Bernanke to be able to organize grain shipments, or -- Lord forbid! -- Pelosi to be able to command an anti-piracy fleet, but I still find it admirable how much a Roman of the leadership classes was expected to be able to do. We expect our judges to be career judges, and our legislators to be career legislators, and so on.

I have no idea whether all the different backgrounds of former justices helped them to reach better decisions or not, but it's certainly worth asking ourselves about diversity of career paths whilst we get all bent up about diversity of ethnicity and religion.

* I'm putting that in quotes not to scare people or sneer, but because I think the issue of what aspects of diversity you care about is so important to the matter that when you ignore that issue phrases like representative of the diversity of America don't convey any information anymore.

1 comment:

  1. I hadn't considered professional diversity but it certainly deserves some consideration. Undergraduate education is considered in applications for law school, at least partially to make sure that not every L1 is a criminal justice minor. Also patent attorneys tend to have BAs or BSs in Engineering, Biology or one of the other sciences. Similarly a lot JDs are med school graduates if they want to go into a related field (malpractice, hospital etc). I don't think it's at all absurd to ask for some non-law work experience on the bench so that the opinions coming down are informed by more than expert witnesses.