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In the ongoing guessing game over who might be the next nominee to the Supreme Court, one factor has been largely overlooked: geography. Nineteen states have been unrepresented among the justices who have served on the nation’s highest court through history, according to a study in Green Bag, the unconventional law review published at George Mason University School of Law. See chart, (PDF). Paying attention to this historical lapse might make sense for the White House. Among those unrepresented states are two whose Democratic senators have been notably grumpy about President Bush’s court nominees: Nevada, home of Senate Minority Leader Harry Reid, and Vermont, the home state of Judiciary Committee ranking Democrat Patrick Leahy. Maybe they’d be happier if they could be introducing the Supreme Court nominee as one of their constituents. By focusing on geographic diversity, President Bush could score some political points and help the Court. As the article notes, Justice Sandra Day O’Connor, among others, has said the Court benefits from geographic diversity. A court full of east coast eggheads would not, for example, have much appreciation for western water disputes and Indian cases � two significant segments of the docket. Most of the states that have never sent a native son or daughter to the Supreme Court are in the northwest and upper Midwest: Washington, Oregon, Idaho, Montana, the Dakotas, Wisconsin and Nebraska. It’s fairly pathetic to think that when Nebraska Sen. Roman Hruska famously said in 1970 that mediocre people were entitled to representation on the Supreme Court, he wasn’t even plumping for a Nebraskan; he was endorsing Nixon appointee G. Harrold Carswell, a Georgia native. Delaware, Florida, Rhode Island and Oklahoma are among the other states without a justice on the court. Of course, if you know anything about the Court’s justices, by now you have probably said to yourself more than once, “Hey wait a minute, wasn’t so and so from that state?” And you’d be right. Justice William O. Douglas personified the state of Washington for many, and he spent many of his Supreme Court summers there. But in Supreme Court records � which the Green Bag tally relied on — Douglas is counted as being “appointed from” Connecticut, a remnant of his Yale Law School teaching days. So Washington counts as an unrepresented state. Likewise, as St. John’s University School of Law professor John Barrett pointed out in a letter to Green Bag, both Vermont and Florida could count current justices as their own, if second homes counted. Chief Justice William Rehnquist repairs to Vermont in the summers, and Stevens lives much of the year in Florida; he missed oral arguments one day earlier this term because of airport delays in the Sunshine State. Wisconsin could claim Rehnquist too � he was born in Milwaukee — but he is counted as an Arizonan. “From a cheese head perspective,” says Barrett, Rehnquist is a “Wisconsinite who became a snowbird before his time.” Similarly, consider Thurgood Marshall, a native of Baltimore. The state of Maryland just passed legislation to rename Baltimore-Washington International Airport after him. Considering its segregationist past, Marshall had mixed feelings about the state, but he was undeniably a Marylander. On the Supreme Court’s web site, however, Marshall is listed as being appointed from New York, where he’d served as an appeals court judge before becoming solicitor general. It appears, in the end, that where a justice is from is a matter of discretion that can be politically tinged. One factor may be whether the state a nominee chooses to hail from has any senators from the majority party, senators who can introduce and sponsor him or her during the confirmation process. Take, for example, John Roberts Jr., a judge on the U.S. Court of Appeals for the District of Columbia who is said to be on the short list for a Supreme Court appointment. Roberts was born in Buffalo, New York, lives in Maryland, and currently sits in D.C. Neither New York nor Maryland currently has a Republican senator, and D.C. has no senator at all. So if Roberts is nominated to the Supreme Court, don’t be surprised if he is counted as a Hoosier, with Indiana Republican Sen. Richard Lugar as his sponsor. Roberts, it turns out, grew up in Indiana. And Indiana is the only state relevant to his life that has seen fit to send a Republican to the current Senate.

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