To put it succinctly, the D.C. Circuit is overrepresented on the court, and many racial, ethnic, socioeconomic, religious, and gender classes in the United States are underrepresented.
Presently the court is comprised of eight members: Chief Justice John Roberts, Justice Steven Bryer; Justice Anthony Kennedy; Justice Clarence Thomas; Justice Ruth Bader Ginsburg; Justice Samuel Alito; Justice Sonya Sotomayor; and Justice Elena Kagan.
That composition yields the following demographics:
5 men, 3 women
6 Whites, 1 African American, 1 Latina
4 conservative thinkers, 4 liberal thinkers
5 Christian, 3 Jewish
8 (presumably) straight, 0 (openly) gay
That makeup says a lot about a court that makes decisions on issues of constitutional construction, and personal rights. What I mean is, for example there may be an issue of constitutional import to women, regarding healthcare, workplace equality, reproductive rights, or equal protection which are being decided by mostly men–men by the way who come from a none-too-woman-friendly era of legal training. How many other areas of the law does this impact?
Here are some extrapolated facts to chew on:
- The o-so-popular reconstruction-era Fourteenth Amendment to the U.S. Constitution has been mostly interpreted by white justices.
- Religious rights cases have been decided mostly by Christian justices
- Womens’ rights issues have been decided mostly by male justices.
- Gay rights issues have been mostly decided by straight justices.
- Immigration issues have been decided by mostly by not-recent-immigrant justices.
- Juvenile justice issues have been decided by a court with a median age over 60.
- Death penalty cases have been decided by justices who are far-removed from imposing the sentence.
- Worker’s rights cases are being decided by justices who have never been a members of a labor union.
A court with as much power as the Supreme Court should have a broad base of perspectives upon which to draw when crafting opinions. There should be no requirement that it resemble the population at large like a jury, but there should certainly be some representation of as many perspectives as possible when deciding an issue that can have an often significant impact on the lives of real people facing real problems.
So, what things should the next justice bring to the table? In addition to requisite educational credentials, legal skill, judicial experience, and respectability, the next justice should have one or more of these qualities, any one of which will broaden the perspective of the court.
The next justice of the United States Supreme Court:
1. Should not be from the U.S. Court of Appeals for the D.C. Circuit.
The “Supreme Court-in-Waiting” circuit is already over-represented and is too political. There are currently three justices who came from the D.C. Circuit Court of Appeals: Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Clarence Thomas. That’s right we have 12 Federal Circuit Courts of Appeals in the United States and a full third of our justices come from the D.C. Circuit Court of Appeals. Astonishing. There isn’t even room on the 9-justice court for a justice to come from each circuit, but Washington has made sure to appoint from this nearby court because its members are closely scrutinized by the political system. It’s time for an outsider from an outland circuit or district court, or–god for everloving bid–a state supreme court (politicos clinch teeth).
Even though Judge Padmanabhan Srikanth “Sri” Srinivasan seems like a shoe-in given that this same Senate recently confirmed him, I think that his would be a nomination of political necessity–not one of courage. I will say, however, that Judge Srinivasan does satisfy other criteria below, which would make him a good addition to the court in spite of the fact that he came from the Supreme Court’s beltway breeding farm.
2. Should be a woman.
You heard it here first, folks. The next justice should be female. I said it. There is an opportunity here to give the court a 5 male to 4 female balance which is as close to true gender representation on the court as you can get without making it 4 men and 5 women, a proposition I also support. If you’re making laws about vaginas and uteruses, then you should have at least 4 women at the 9-person table.
3. Should be from a racial or ethnic background not currently represented on the court.
You heard it here again. Why have we never had an east Asian justice? East Asians have been in this country for a very long time without representation on the court. How about African American women? There are approximately 23.5 million African American women in the United States yet there are neither any African American women on the Supreme Court, nor have there ever been. Why? Lots of reasons, which are too many to recount here.
4. Should have parents or grandparents who emigrated to this country.
There are pending cases in the always hot-button area of immigration law. Well, its no surprise that immigration laws do not favor immigrants when the people making and interpreting the laws are themselves not recent immigrants. Go figure.
5. Should be openly GBLTQ.
As of 2012, there are an estimated 10 million GBLTQ people in the United States. We’ve got 8 straight justices deciding issues that affect them. Math.
6. Should be younger than the median age of the court.
With a median age on the court greater than the age of retirement for most Americans, do you think there is a potential for grandpa and grandma to be a little out-of-touch? You’re not alone. The only three justices keeping that number so low are Chief Justice Roberts (age 61), and President’ Obama’s two Appointees, Justices Sotomayor (age 61) and Kagan (age 55).
After that, we’re riding with the walker brigade: Justice Alito (age 65), Justice Thomas (age 67), Justice Bryer (age 77), Justice Kennedy (age 79), and Justice Ginsburg (age 82).
I think this is by far the hardest category to satisfy because the most experienced judges are experienced precisely because they have many years of being judgy under their robes.
7. Should have been required to impose the death penalty as a trial judge.
My one outstanding fact check is how many of the sitting justices have ever themselves imposed a death sentence. If the answer is none of them, then before the court makes any more rulings on the death sentence, don’t you think there should be at least one of them in the room with a perspective on what that’s like?
8. Should have been a member of a labor union.
There lots of cases being decided right now in the organized labor arena, especially in the area of public sector unions. Many old labor protection laws are being cut down by justices who were never themselves members of labor unions. It’s easy to pass judgment from on-high. But give us a justice who’s been in the trenches of working life, and understands what workers go through before they get to hand those judgments down.
9. Should be neither Christian nor Jewish
There are plenty of citizens of the United States who are neither Christian nor Jewish. Why are 100% of the justices aligned with those faiths in some way? That’s just how it shook out I guess. But there is an opportunity to change it now.
As I said, any one of these qualities will broaden the perspective of the court, which can only be seen as a good thing. Now that you have my perspective on what qualities a justice should have please now consider my list.
Judge Padmanabhan Srikanth “Sri” Srinivasan
Current position: Judge, U.S. Court of Appeals for the D.C. Circuit
Undergraduate School: Stanford University, 1989
Law School: Stanford Law School/Stanford Graduate School of Business J.D./M.B.A., 1995
DOB: February 23, 1967 (age 48)
If nominated, Judge Srinivasan would be the first Asian-American justice of the Supreme Court.
Judge Diane Pamela Wood
Current position: Chief Judge, U.S. Court of Appeals for the Seventh Circuit
Undergraduate School: University of Texas at Austin, 1971
Law School: University of Texas School of Law, 1975
DOB: July 4, 1950 (age 65)
Judge Woods was among the first women to clerk at the U.S. Supreme Court (for Justice Blackmun).
Judge Ojetta Rogeriee Thompson
Current position: Judge, United States Court of Appeals for the First Circuit
Undergraduate School: Brown, 1969
Law School: Boston University School of Law, 1976
DOB: August 8, 1951 (age 64)
If nominated, Judge Thompson would be the first African American Female justice on the U.S. Supreme Court.
Judge Deborah A. Batts
Current position: Senior Judge, U.S. District Court for the Southern District of New York
Undergraduate School: Radcliffe College
Law School: Harvard Law School
DOB: April 13, 1947 (age 68)
Judge Batts was the nation’s first openly LGBT, African-American federal judge. If nominated, she would be the first openly gay Justice and the first African American female justice on the U.S. Supreme Court.
Chief Justice (Ret.) Leah Ward Sears
Current position: Retired/Private practice, Chief Justice (Ret.), Georgia Supreme Court
Undergraduate School: Cornell University, B.S. 1976
Law School: Emory University School of Law J.D., 1980, University of Virginia School of Law, LLM 1995
DOB: June 13, 1955 (age 60)
Justice Sears was the first African American female chief justice in the United States. If nominated, Justice Sears would be the first African American female justice on the U.S. Supreme Court.
Chief Justice Bernette J. Johnson
Current position: Chief Justice, Louisiana Supreme Court
Undergraduate School: Spelman College
Law School: Louisiana State University, Baton Rogue
DOB: June 1943 (age 72)
If nominated, Justice Johnson would be the first African American female justice on the U.S. Supreme Court.
Chief Justice Tani G. Cantil-Sakauye
Current position: Chief Justice of the California Supreme Court
Undergraduate School: University of California Davis, B.A., 1980
Law School: University of California Davis Law School, J.D., 1984
DOB: October 19, 1959 (age 46)
Justice Cantil-Sakauye’s Hawaiian-born father, Clarence, was of Filipino and Portuguese ancestry, while her mother, Mary Gorre, was Filipino. If nominated, Justice Cantil-Sakauye would be the first woman of Asia-Pacific Island descent on the U.S. Supreme Court.
Justice Mary Yu
Current position: Justice, Washington Supreme Court
Undergraduate School: Dominican University (B.A.)
Law School: Notre Dame Law School
DOB: 1957 (age 59)
If nominated, Justice Yu would be the first openly gay Supreme Court Justice, and the first Asian American justice on the U.S. Supreme Court.
This list is nonexclusive. I have five more suggestions, but for personal reasons I have chosen not to post their names here.
Clint Hubbell 