"Other Diversity Key for High Court," Editorial by David Getches

Dean David Getches' editorial in today's Denver Post was titled “Other diversity key for high court."

President Obama is poised to appoint a Supreme Court justice to succeed David Souter. Almost certainly, the appointment—or those that follow, as the two eldest remaining justices (John Paul Stevens and Ruth Bader Ginsburg) retire—will satisfy the call to add women and minorities to the court. This is a political necessity and, partly for that reason, race and gender are perhaps the least important kinds of diversity lacking on the court.  

At the University of Colorado Law School this year, retired Justice Sandra Day O'Connor was asked how being a woman affected her decision-making. She replied, "Oh dear, why is that important? Wouldn't a wise old woman make the same decision as a wise old man?" What she left unsaid was how one becomes wise and moves beyond knee-jerk ideology.

The more diverse the life experience, the wiser a judge is likely to be. Now, the life experiences of the justices are strikingly similar. Of the nine justices:

• Seven are Republican
• Seven graduated from either Harvard Law School or Yale Law School
• Five are Roman Catholic
• All came from federal appeals courts (seven from courts in Washington Boston, or Philadelphia

On the other hand:

• Only one justice ever served on a state trial court (Souter)
• No sitting justice has been a state legislator or member of Congress
• Only four justices have had more than two years' experience in private practice
• Only two were born, raised or spent any significant time west of the Mississippi River (Anthony Kennedy and Stephen Breyer, both in California)
• None has been a criminal defense attorney
• Only one has served in the military (Stevens)

Does any of this matter?

With many of the court's thorniest cases involving federalism or the constitutionality of state laws, it might be appropriate to have former state legislators or other top state officials among them. Once Souter (a former New Hampshire attorney general) steps down, none of the justices will have any state government experience.

In cases where the court must parse and apply complex federal laws, it might be useful to have some justices who are former members of Congress.

Though many tough cases involve executive power or the propriety of administrative conduct, only one justice (Clarence Thomas) has headed an executive branch agency.

The largest numbers of petitions to the court come from prisoners seeking writs of habeas corpus, so expertise in representing criminal defendants might be useful.

A disproportionate number of Supreme Court cases involve public lands, American Indian rights, and water—subjects endemic to the American West in which the current justices lack expertise or interest.

Having greater diversity of life experiences can also make the court less ideologically hidebound.

Confirmation hearings will dwell tediously on the perennial issue of abortion rights. More important, however, are the qualities of character and experiences that equip a justice for applying and interpreting law to the toughest cases the nation has to offer, in situations that cannot yet be imagined.

So solid is the ideological bent for some of today's justices, however, that consensus on a decision is rare; the unanimous decision is becoming an endangered species on the Supreme Court, and 5-4 split votes are more common than ever.

For justices to be more than vestigial remnants of the politics of presidential administrations that appointed them, they need a diversity of experiences. This will enable them to understand the implications of applying revered constitutional principles to real life situations never contemplated by the Founders.