Looking for the best “anti-Garland” on Prez-Elect Donald Trump’s SCOTUS not-so-short list

As explained in this post eight months ago, I was deeply disappointed that Prez Obama “decided to nominate to the Supreme Court to replace Justice Antonin Scalia, an old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit, none other than Chief DC Circuit Judge Merrick Garland, another old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit.”  As this sentence was meant to highlight, my disappointment in the selection by Prez Obama was focused on six particular attributes of Judge Garland (and Justice Scalia), and here in rank order is what I disliked from most bothersome to least:

1.  Old: Garland at age 63 was the oldest person nominated to be an associate Justice in over 100 years other than Prez Nixon’s nomination of Lewis Powell at age 64.  With all due respect to people who are eager to work well after retirement age, I generally think it better for most jurists after a two decades on the bench to be thinking seriously about retirement, rather than about starting a new job.

2.  Harvard Law School: With all due respect to my alma mater and its rivals Yale and Stanford, only two of the previous 16 nominees to the Supreme Court did not attend at some point HLS or YLS or SLS: John Paul Stevens (Northwestern) and Harriet Miers (SMU). Though I am proudly a product of elite coastal educational institutions, my 20 years teaching at Ohio State (and teaching as a visitor at Colorado and Fordham) has reinforced and deepened my strong belief that a whole lot of elite lawyers and supremely qualified jurists have degrees from law schools other than Harvard, Yale and Stanford.

3.  DC Circuit Judge: Even after Justice Scalia’s passing, three of the current Justices had previously served on the DC Circuit (Chief Justice Roberts and Justices Ginsburg and Thomas).  As a close follower of criminal justice jurisprudence (which makes up almost 50% of the SCOTUS docket), there are many reasons I think judicial experience as a DC Circuit Judge is especially bad: (a) the DC Circuit sees very few criminal cases and zero state habeas cases, (b) the DC Circuit is “inside the Beltway” and so judging is always going to be distinctly “politicized” on that court, and (c) the very few criminal cases DC Circuit judges do see are highly unrepresentative of criminal cases throughout the nation.  Among the reasons I have liked the last three appointments to SCOTUS (Justices Alito, Sotomayor and Kagan) is because none of them came up from the DC Circuit; also Justice Sotomayor had been a federal district judge before becoming a circuit judge, and Justice Kagan had never been a judge.  I sincerely believe that the Supreme Court’s criminal justice jurisprudence has improved considerably in recent years thanks to the collective work of Justices Alito, Sotomayor and Kagan (and I say this as one of the few fans of the Blakely/Booker cases which predate their arrival). 

4.  Formerly worked for USDOJ: Regular readers are likely aware of my complaints about the persistent appointment of what I might call “big government” prosecutors/insiders, i.e., people who spent at least some of their formative professional years advocating on behalf of (ever-exanding) government powers.  Here are snippets from the official SCOTUS bios of the last five confirmed SCOTUS appointments to the Supreme Court:  “Special Assistant to the Assistant U.S. Attorney General [and] Assistant Special Prosecutor” (Breyer); “Special Assistant to the Attorney General” (CJ Roberts); “Deputy Assistant Attorney General, U.S. Department of Justice [and] U.S. Attorney, District of New Jersey” (Alito); “Assistant District Attorney in the New York County District Attorney’s Office” (Sotomayor); “Solicitor General of the United States” (Kagan).  Those eager for courts to check and limit the powers of governments (especially the federal government) need not look past these professional realities to understand why it so often seems that “the little person” asserting rights against some big government rarely prevails before a group of people who, in many, many, many ways, owe their professional success to the increasing size of government with fewer and fewer constitutional restraints. 

5.  Male: According to this Wikipedia entry, as of 2016, there have been 161 formal nominations to SCOTUS, and only five have been women (O’Connor, Ginsburg, Meirs, Sotomayor, Kagan).  For those good at math, you should know that this is just over 3% of all appointments (and, disgracefully in my view, a bunch of men bullied Meirs into withdrawing before she even got a hearing and she was replaced by Justice Alito).  As of the 2010 census, women comprised 51% of the US population, and I am so proud that Prez Obama increased the historical number of women appointed to SCOTUS from around 1.8% to 3.1%.  But, especially as the father of two teenage daughters, I am not quite ready to say “you have come a long way, baby.” 

6.  White: Of 161 formal SCOTUS nominees, only three have been people of color (T. Marshall, Thomas, Sotomayor).  Given that 72% of the nation identified white as of the 2010 census, I suppose I should just be grateful Prez Obama nominated one person of color to SCOTUS.  But, beyond the fact that now close to 25% of the nation identifies black or Latino, there are lots of other large diverse minority groups in the US, as this official US Census article notes.  For example, as of 2010, Asians were now 5% of the US population, and “grew faster than any other major race group between 2000 and 2010.”  In addition, I think a powerful argument might be made, especially given the exclusive federal jurisdiction in Native lands and on many US Islands, that SCOTUS ought to have someone from the 2.5% of the US population that consider themselves at least in part “American Indian and Alaska Native (5.2 million) and Native Hawaiian and Other Pacific Islander (1.2 million).”

So, based on this discussion and my prior criticism of Prez Obama’s nomination of Judge Garland, I think my ideal pick to replace Justice Scalia would be (1) young (ideally under 50), (2) an alum of some school other than HLS, YLS or SLS, (3) not a DC Circuit Judge, (4) not a former prosecutor or DOJ employee, (5) a woman, and (6) not white.  For the record, in case anyone cares or thinks my own biases color my judgment, I satisfy only three of these six criteria — as does, quite interestingly, Prez Obama and Prez-Elect Donald Trump and defeated candidate Hillary Clinton (though none us satisfy the same three of these six criteria).

I have not yet had a chance to drill down deeply into all 21 of the lawyers appearing on Prez-Elect Donald Trump’s SCOTUS not-so-short list to see who may satisfy the most of my ideal criteria, but I was inspired to do this post by some recent articles from The National Law Journal and the New York Times discussing the diversity on some attributes of some of the persons on the Trump SCOTUS list.  I do not believe there is a woman of color on the Trump list, so I think it may be impossible for any of the 21 to hit all of my key six diversity attributes.  But it is certainly possible (and I am hopeful) that there are more than a few candidates on the list who satisfy five or at least four of these attributes.  And in the wake of Prez -Elect Trump’s past criticism of a federal judge based on his ethnicity, I suspect I am not the only one now culling his lists on various distinct diversity grounds.

And, to preempt any complaints that I am worrying way too much about “identity politics,” as an academic in a University community that talks a lot about diversity attributes, I could readily devise a long list of other attributes that could also be important to consider if we aspire to have SCOTUS become a more “representative” institution: e.g., personal or professional history (a SCOTUS nominee could be a non-lawyer); religion (e.g., no Mormons or avowed atheists have even been a Justice); military service (who was last veteran on SCOTUS?); socio-economic status (who was last first-generation college SCOTUS nominee?), marital/parenting history (the last two nominees were single), disability, sexual orientation, citizenship or criminal history and on and on.