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In the ongoing speculations about potential U.S. Supreme Court appointments, little or no attention has been paid to the transformed nature of the court’s membership. The justices’ backgrounds are strikingly less diverse now than at any time in the past. Consider these facts: Seven of the current justices came to the court from a seat on a U.S. court of appeals. One came from a state appellate court. No current justice ever served in Congress or in the president’s cabinet or was governor of a state. This composition of the court represents a radical break with the past. The contrast can be seen by looking at the justices who served from 1940 to 1970. During that time, the court’s membership included four who had been U.S. senators, one a member of the House of Representatives, three governors, five attorneys general, a solicitor general, a head of the Securities and Exchange Commission, a secretary of the Treasury, a secretary of Labor and two lawyers from the practicing bar. Two within that group had also been big-city mayors. Of the 26 justices serving during that period, fewer than a third had been judges on a court of appeals. Every appellate court needs a balance of types in its membership. This is especially important on the Supreme Court because of its distinctive role as final authoritative interpreter of the federal Constitution and acts of Congress. That task calls for an unusual degree of wisdom and statesmanship based, among other things, on the collective life experiences of the nine justices. The task is likely to be most soundly performed when those experiences are broad and varied. For example, the process of running for and serving in high elective office brings one into contact with people and the workings of democratic society, providing experiences quite different from those of a law professor or appellate judge. English Lord Chancellor Hailsham said that in his selection of judicial appointees, service in the House of Commons was to be favorably taken into account, as it “can broaden the mind and knock some of the angular corners off it.” Service as a cabinet officer provides still another set of insights. It has been more than 35 years since the court contained any former senator, cabinet officer or governor. The absence of such individuals from the high court, for the first time in history, deprives it of some important perspectives. At times the court has had too few former judges; now the pendulum has swung too far the other way. Emphasis on a ‘track record’ What explains this radical transformation? A contributing factor may have been the influence of Chief Justice Warren Burger, appointed in 1969. He believed that justices on the top court should be drawn from the ranks of the judiciary, English style. Beyond that, however, the appointing authorities seem fixated on the idea that service on a court of appeals provides a “track record” that can be documented and that can thereby reduce the risk of an “unreliable” appointment. That view is, in turn, a product of the unfortunate partisanship and ideological conflict that has grown up around Supreme Court appointments in the last 30 years. Another possible factor is the perceived lack of plausible prospects for appointment outside of sitting judges. But that perception likely results from lack of real interest in identifying such candidates. Able lawyers in the public service, outside the judiciary, have always been around. Former senators such as Howard Baker and George Mitchell come to mind as does the late Elliot Richardson, the multifaceted cabinet officer. And there is no dearth of exceptional practicing lawyers who would grace the court. Another little-noticed shift in the court’s composition is its diminished geographical diversity. Today, six of the nine justices come from East Coast states. In the vast territory from the Atlantic across Middle America to the Northwest there is only Justice John Paul Stevens from Illinois. Compare that with the 1955 court, with one justice each from Massachusetts, New York, Ohio, Indiana, Kentucky, Alabama, Texas, California and Washington. While the court is not and should not be a “representative” body, in the sense that Congress is, geography is not irrelevant. In a nation of continental scope, regional differences in culture, population and economy are not inappropriate factors in the court’s deliberations, if only indirectly. Then there is the unique position of chief justice. The names of prospective appointees mentioned in the newspapers have all been those of judges on the courts of appeals, suggesting a continuation of the trend of the last three decades and ignoring the special requirements of the chief justiceship. In addition to being one of nine case deciders, the holder of that office has three responsibilities. He or she presides over the court, ideally maintaining as much harmony as possible among the other eight justices. Then he or she is the administrator of the court, seeing that the institution, with its facilities and several hundred employees, functions smoothly. Finally, he or she is also the head of the entire federal judicial system. The person holding that office needs to have an interest in, and talent for, administration on a large scale. Burger was particularly attentive to those nationwide system concerns, state as well as federal. It is obvious that one may be well qualified to be an associate justice but ill suited to be the chief. As has been observed, some of the relatively successful 20th century chiefs have been those with political backgrounds-Charles Evans Hughes and Earl Warren as state governors and William Howard Taft as president. And then there is a seemingly trivial point not to be overlooked: It is helpful for the chief justice to look like a chief justice. Daniel J. Meador is a law professor emeritus at the University of Virginia. From 1977 to 1979 he was an assistant attorney general in the U.S. Department of Justice, heading the Office for Improvements in the Administration of Justice.

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