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Washington-A week before President Bush nominated John Roberts to the U.S. Supreme Court, Senate leaders had urged him to look “outside the box” at candidates who would bring diversity in a variety of ways to the high court bench. Is Roberts outside the box? Well, yes and no, according to court scholars, political scientists and others. In the words of Senator Patrick Leahy and in the minds, no doubt, of the other senators meeting that day with Bush, the box is the “judicial monastery”-sitting judges in general, federal appellate judges in particular. Roberts, currently a judge on the U.S. Circuit Court for the District of Columbia, fits comfortably within that box, having served there for just over two years. On the court that Roberts hopes to join, eight of the nine justices had prior judicial experience-seven came directly from federal appellate courts and one (Justice Sandra Day O’Connor) from a state appellate court. Only the chief justice, William H. Rehnquist, had no prior judicial experience. Federal appellate courts have provided the largest pool of high court nominees now for more than half a century. Only once in the last 53 years has a president plucked a lawyer directly from private practice as his Supreme Court choice, and that was the courtly Virginian, Lewis F. Powell Jr., whose mantle as the high court’s “center” or critical “swing vote” was taken up by O’Connor shortly after he retired. “It’s not surprising at all that [Bush] picked a federal appellate court judge,” said Lee Epstein, professor of law and political science at Washington University School of Law in St. Louis. “There is now some sort of norm of prior judicial experience, and really prior federal judicial experience.” This norm now extends throughout the federal court system in a gradual and remarkable trend, which political scientist Sheldon Goldman of the University of Massachusetts at Amherst, a long-time scholar of the federal judicial appointments, calls the “professionalization” of the federal bench. “This is a bureaucratic phenomenon in many senses,” said Goldman. “It works to the benefit of a presidential administration because they know what they’re getting. It works in terms of judicial organization because it provides incentives to have a judicial career.” But he and others believe the trend also has significant downsides for litigants and for the quality of justice. Diverse diversity There have been an enormous number of studies, Epstein said, showing that people with diverse career experiences bring different things to the table. And there is every reason to believe that would be true of the Supreme Court as well. Epstein recalled Rehnquist in a speech talking about the importance of nominees with private law practice experience. “He was thinking about people like Louis Brandeis and Powell,” she said. “They brought a real-world perspective to the court. This Supreme Court, some critics say, is like running little law schools.” Powell’s lack of prior judicial experience and wealth of private practice experience, she suggested, may well have contributed to his position as the key swing vote during his years on the high court. “He probably hadn’t formed many opinions on a lot of key issues because he wasn’t an appellate judge and he hadn’t been a government lawyer working in the solicitor general’s office and taking the president’s view of a lot of social issues,” she explained. On the surface, Roberts’ nomination doesn’t appear to be a particularly diverse one, said Epstein, but his private practice experience is distinct from many of the current justices. He spent 13 years practicing law at Washington’s Hogan & Hartson, and nine years as a government lawyer in the Department of Justice and in the White House counsel’s office. That puts him closer to Powell and Rehnquist, she said. “The current court has the least number of years in private practice: a mean of 8.2 years-the lowest in Supreme Court history,” said Epstein. “Prior to 1953, the mean was 16.4 years. And at one point, in the 1930s, it was close to 25 years.” Epstein traces this “norm of federal judicial experience” to President Dwight Eisenhower’s disappointment with Earl Warren, who had no experience as a judge. “He felt judicial experience would make someone a more faithful adherent to law,” she said. “If you appoint a John Roberts, he’s going to understand that you have to be constrained by laws and rules. There are studies indicating that theory is true, false or makes no difference.” In his confirmation hearings for the D.C. Circuit seat, Roberts told senators that the high court’s landmark abortion ruling, Roe v. Wade, 410 U.S. 113 (1973), was settled law and that he would apply it, noted Epstein, a co-author of “The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court,” published in California Law Review in 2003. “But if he is on the Supreme Court, is he going to stick to that? Who knows?” Epstein said she is someone who thinks that more diversity in all kinds of ways is generally a good thing because it leads to higher-quality decisions. “Ultimately a Supreme Court full of nine white men all of whom had 10 years of experience as federal appellate court judges looks at the law differently than a group diverse in race, gender, experience and background. There is a need now for more diversity on the Supreme Court.” Court and administration watchers now speculate that if Bush gets another high court vacancy to fill, the next nominee will be the one “outside the box,” at least in terms of race, gender or ethnic diversity. But if the “professionalization” of the federal bench continues, true diversity of life experiences will be harder to find, noted Massachusetts’ Goldman. “The proportion of lower court judges that have previous judicial experience is something like over 50% for Bush appointees,” he said. “This is just all the more remarkable.” On the district courts, 56.6% of Bush’s first-term appointees had prior judicial experience, and on the courts of appeals, 61.8%. And also at the district court level, there has been an increase in the proportion of judges who were U.S. magistrates. The Bush administration’s first-term appointments had a record 17 percent with magistrate experience. “If you compare that to President Roosevelt’s appointees, you find that only 20 percent of his district court appointees had previous judicial experience,” added Goldman. “We jumped from 20% in the 1930s to 56.6%. That’s a substantial transformation. “We’ve been seeing this gradual trend toward professionalization of the bench in the lower courts and now, since Justice John Paul Stevens was appointed, we’ve seen it in this respect on the Supreme Court.” Stevens left the 7th Circuit for the high court in 1975. For a period of 10 years before that-from 1962 to 1972-there was a break in appellate court dominance when five new justices joined the court. All had made their mark in the executive branch of government, with the exception of Powell: Arthur Goldberg, Abe Fortas, Byron White and Rehnquist. This professionalization trend is “probably not” good, said Goldman. “You are getting judicial bureaucrats, with left-wing bent or right-wing bent, but they are judicial bureaucrats and they’re thinking within certain boxes and certain life experiences.” Goldman said he doesn’t believe it was an accident that O’Connor turned out to be a more moderate and more cautious conservative than people expected because she did have some major political experience (she was an elected Arizona state senator), which can make “all the difference in the world.” With Roberts, he added, there is government and private-practice experience. “Of course being as relatively young as he is, it’s a question mark how seasoned he is in terms of his experience.” Good or bad? Diversity of experience would be positive for the Supreme Court “in a limited dose,” said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law. “I’m of two minds when I hear these pleas for diversity,” he said. “Some are making them in the mistaken desire to have the court be more political than less or more policy-oriented than less.” Bush, he added, did go outside the box, “albeit just a little.” Roberts’ experience in private as well as government law practice “means he has been held accountable to people, unlike the folks substantially in the ‘judicial monastery,’ as Leahy calls it,” explained Kmiec. “They are accountable to deadlines but not to someone wanting explanations for what they did-something we all have in our jobs.” The upside of this professionalization trend, according to high court scholar A.E. Dick Howard of the University of Virginia School of Law, is that “The justices of the present court are very bright, talented, very good lawyers, on average, as good a bench as we’ve had in modern times, in the purely technical sense.” But a significant downside, he added, is that “When they are sitting around the conference table or drafting opinions, they’re not able to immerse some cases at hand in the larger social and political context. They can do it academically but they haven’t actually been there in those contexts.” He noted that no one on the high court had held a significant national elective or appointive office. Pointing to a case two terms ago in which the five justices basically washed their hands of judging political gerrymandering challenges, he said, “Small wonder. They simply don’t know how to get their hands around an issue like that.” Diversity is actually a component of impartiality, said Sherrilyn Ifill of the University of Maryland School of Law, pointing to its role in jury composition. “To look at the end of a very exclusive pipeline to find judicial nominees for the most exclusive court in the country strikes me as ‘clubby’ to the say the least,” she added. “Obviously, there are consequences for the issue of diversity as well.” Black and Asian-American judges, she explained, are extremely underrepresented on federal appellate courts. And, as President Jimmy Carter’s black appointees retire, black judges will become increasingly absent from district courts. “So the pipeline is not even being fed properly,” she said. In the end, according to nominations scholar Michael Gerhardt of the University of North Carolina School of Law, the most important factor for this president and this vacancy is that these judges’ tendencies are thought to be more predictable. “This president wants a strict constructionist-evidence of a commitment to a particular judicial philosophy, and the best place, in their minds, to find it is in the federal judiciary.”

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