Sunstein on Supreme Court Diversity
A diversity of minds, not biology Cass R. Sunstein
Los Angeles Times, July 23, 2005
Judge John G. Roberts Jr. fits the standard profile of a Supreme Court nominee: a middle-aged white man, appointed after serving on a federal appellate court.
Whatever they think of Roberts' merits, many people had hoped for something different -- something other than the standard profile. First Lady Laura Bush, for instance, said, "I would really like for him to name another woman." While describing Roberts as "first-rate," Justice Sandra Day O'Connor said she was "disappointed ... to see the percentage of women on our court drop by 50%." Others have hoped, and continue to hope, for a Latino justice, or perhaps for another African American. Still others, including Senate Minority Leader Harry Reid, argue that the president should be considering people "outside the box," including candidates from state government, the executive branch or even Congress, rather than taking the now-usual route of elevating someone from the federal Court of Appeals.
The question of diversity on the Supreme Court has been with us for a long time. In the past, there was a de facto "Jewish seat" on the Supreme Court, first filled by Louis Brandeis and then for many years by Felix Frankfurter, who was succeeded by Arthur Goldberg, followed in turn by Abe Fortas. (Justices Ruth Bader Ginsburg and Stephen Breyer are both Jewish.) There is, in effect, an African American seat today. Thurgood Marshall was replaced by Clarence Thomas and, unless another African American is named to the court first, when Thomas leaves he will almost surely be replaced by an African American. President Bush will be under intense and possibly irresistible pressure to ensure that his next nominee is a woman.
Unfortunately, all this focus on demographics misses the most important point. What the court most needs is intellectual diversity. It should have people with a range of perspectives, different kinds of knowledge and different points of view. For many questions that come before the court, expertise is important, and it is impossible for anyone to be an expert in everything. The court has greatly benefited from having Breyer, a specialist in copyright law, and Justice Antonin Scalia, a specialist in separation of powers. And for the most important questions, internal differences are crucial because they sharpen arguments and increase the likelihood that the court will get it right.
On lower courts, the evidence shows that intellectual diversity makes a big difference. On three-judge panels, Republican appointees show far more extremism when they are sitting only with other Republican appointees. The same is true of Democratic appointees, who shift to the left on panels made up solely of Democratic appointees. The evidence also suggests that the increased moderation reflects greater attention to competing arguments -- and even a closer attention to the law itself.
The Supreme Court is similar. If the nine justices share the same basic orientation and background, their views and inclinations will not be tested. They are likely to miss important counter-arguments and alternative points of view. If Sen. Reid is right to contend that the president should think "outside the box," it is because people with different experiences add a valuable perspective. Those who have served in the Legislature or in state government are likely to know things that appellate court judges haven't been able to learn.
None of this means that demographic considerations should be entirely irrelevant. It would be certainly disturbing if the court was made up solely of white men. For symbolic reasons, demographic diversity is valuable. Children of all kinds should be able to see people of all kinds on the court. What's more, women and African Americans can bring perspectives to the court's deliberations simply because of their background. Recent evidence suggests, for example, that female judges are likely to be more attentive than male judges to the claims of sexual harassment victims, in part because of their own experiences.
But the most valuable kind of diversity involves ideas, not biology. Bush may have an opportunity to make several more appointments to the Supreme Court. No one should complain if he selects a woman or an African American -- or, for the first time, a Latino or Asian American. But it's not all that important to ensure that the court "looks like America." For the highest court in the land, what matters most is the range of arguments and perspectives.
Cass R. Sunstein teaches law at the University of Chicago and is the author of Radicals in Robes: Why Extreme Right-Wing Judges Are Wrong for America, coming from Basic Books in September.
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