If Anyone Gets Confirmed, The Court Will Be More ‘Scalia-Diverse’

Admittedly, it may not be the best use of time to speculate about who President Obama’s nominee to fill Justice Scalia’s seat will be; the nomination will inevitably be blocked by the Republicans in the Senate. (Unless it’s a Republican — more on that below.)

That said, this is appearing on the internet, and the internet is 90% porn, 9.5% time sink, and .5% useful so I’m not sweating whether nomination-speculation is a waste of space.

And, really, who would want such a nomination? To be nominated is to become a piñata in the 2016 Presidential race. Some fact — regardless of how obscure or irrelevant — will likely be found or created about the nominee that will be repeated endlessly in Republican circles. He or she will be the next Bengazi, but, instead of being an event in a place, will be a person who will likely be radioactive if ever nominated again.

But, those cheery thoughts aside, let’s think about who Obama should nominate.

One thing folks have talked about in this nomination is diversity. There are, of course, many different ways to think about diversity.

Obama’s nominees have been diverse by one criteria (or two, depending on how you count) — the percentage of Obama’s nominees who have been women or people of color has been truly historic. And, to me at least, inspiring. No one really thinks the law is colorblind, no matter how nice that is to believe. And if the folks interpreting it aren’t just one color, it’s likely to be better for the country.

And there’s an empirical reason to think it makes a difference. Check out this take on judicial diversity from the best blog on politics, 538:

Jonathan Kastellec, an assistant professor at Princeton University, told me that changing the composition of the court really could change its decisions. In his own research, he’s found that not only do African-American judges differ in how they rule compared to judges of other races, but also that their presence makes a difference. Their colleagues vote differently when serving in a racially mixed group compared to an all-white one. Other researchers have observed similar effects on male judges who serve with women, rather than with all men.

But there are, of course, other kinds of diversity, like the one reflected in late Justice Scalia’s knock on the then-current Court:

[T]his Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

There are defenses to criticism about this lack of diversity on the Court, but, to my mind, they boil down to some variation on, “But, you see, the people in the provinces simply aren’t good enough.”

And in this political environment there’s reason to think we may get what we can call more Scalia-diversity in the next nominee.

First, why are our Supreme Court Justices from Harvard and Yale? Because lawyers have a lot to do with who gets on the Court and because our profession has an irrational and pathological obsession with law school rankings. Going to a higher ranked school more often indicates that the person was born into privilege than that they are a good lawyer. The kids in middle school who bragged that they lived in a fancy neighborhood to make the poor kids feel bad grew up to look down on people who went to a less fancy law school so they could keep trying to make others feel bad. They’re just confusing their daddy’s status with their own worth in a courtroom instead of a schoolyard.

I’ve known excellent lawyers who went to lousy schools and Yale grads who are a walking malpractice claim. A more reliable inference to make from a lawyer’s school ranking, I find, is that lawyers at better ranked schools tend to have a harder time relating to clients. Which is, admittedly, not a problem for a Supreme Court Justice.

That said, there is one reason to care about the ranking of a law school that someone went to — some people are irrational enough to care. At my firm, we find that some of our clients care (we surveyed them) where their lawyer went to law school when choosing a lawyer, so we hire people who went to well-ranked schools.

Often, where someone went to law school matters, too, to whether they’re seen as fancy enough to be confirmed by the Senate for a judicial spot. And that’s especially true on the Supreme Court.

But this year, if the nominee is going to get confirmed at all, Senators aren’t going to make decisions based on perceived merit. Obama could nominate someone who graduated from law school at Yale then went back to get another J.D. from Harvard — the person still wouldn’t be likely to get confirmed.

What would get someone confirmed is how they move the political calculus.

Enter Nevada Governor Brian Sandoval. He’s a former district court judge, who is from Nevada and went to law school at Ohio State (Ranked 34, in U.S. News and 29 in the ATL Top 50, to save the broken readers of this column from Googling it). Obama is supposedly vetting him for the Court. Sadly for Scalia’s concern about religious diversity, he’s Catholic.

But, he’s politically interesting enough that you could see Obama nominating him just to make Republicans seem exceptionally obstructionist for opposing him.

Or consider Jane Kelly, on the Eighth Circuit from Iowa. While she went to law school with the President, she is from the Midwest. And, unlike the Chief Justice, who grew up in Indiana but spent his entire professional life in D.C., Jane Kelly’s professional life has been spent in Iowa. She’s also a former Assistant Federal Public Defender, which would be nice to have on the Court.

It looked for a minute like Jane Kelly could be confirmed because she has a personal relationship with Chuck Grassley. That’s a good relationship to have at the moment. But, of course, it has nothing to do with where she went to law school.

So, if anyone is getting onto the Supreme Court before next year — and I don’t think they will — the smart money is that the Court will get more diverse in only the way Scalia would have wanted.

It’s a nice posthumous tribute.

(And, yes, I realize that Scalia wasn’t really arguing the Court should be more diverse — he was making a point about how the Court shouldn’t legislate, but because, for reasons alluded to above, the idea that law is not a human enterprise free of bias from background and, rather, an automatic process of applying principles to facts is pretty silly.)

---

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.