Diversity on the Supreme Court

Diversity came slowly to the Supreme Court. Lyndon Johnson was president when Thurgood Marshall became the first black justice in 1967 and there wasn’t a woman on the court until Ronald Reagan appointed Sandra Day O’Connor 14 years later.

The court hasn’t exactly been a citadel of religious diversity, either. It has had just 11 Catholic justices, five of whom are serving now, and seven Jewish justices, including the two on the court at the present time. Ninety-one justices have been Protestant.

With the resignation of Justice David Souter, President Obama has an opportunity to name the first Hispanic justice or to have more than one black or female justice on the court. Or he can appoint the best person he can find without regard to race or gender and that person could turn out to be a woman, a member of a minority group or even a white man.

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He should avail himself of all these alternatives, but also consider another diversity issue. The Supreme Court has become judge-heavy in recent years. Every judge on the Supreme Court was a judge before he or she joined the court. While this is unquestionably valuable experience, it tends to isolate and deprive jurists of some of the equally valued life experiences outside the judge’s chamber.

Since Richard Nixon chose William Rehnquist, who was an assistant attorney general, every justice — John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, Souter, Clarence Thomas, Ruth Bader Ginsberg, Stephen Breyer, John Roberts and Samuel Alito — has been elevated to the Supreme Court from the next-highest court, the U.S. Court of Appeals.

Stevens was Gerald Ford’s only nominee; O’Connor, Scalia and Kennedy were appointed by Ronald Reagan. Souter and Thomas were named by the first President Bush and Ginsberg and Breyer were Bill Clinton’s only justices. The second President Bush named the current chief, Roberts, and Alito, and Jimmy Carter had no Supreme Court openings in his one term. Ten justices appointed by five presidents with one thing in common: their previous service on the Court of Appeals.

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It’s almost forgotten that presidents once looked for justices in other places.

Franklin D. Roosevelt picked eight Supreme Court justices, more than any other president, and not one of them had been a federal judge. Hugo Black was a senator from Alabama; Frank Murphy, the mayor of Detroit and governor of Michigan, and James Byrnes, a member of the House and Senate from South Carolina. Robert Jackson was Roosevelt’s attorney general, Willis Reed was solicitor general and William O. Douglas chaired the Securities and Exchange Commission. Two were law professors, Felix Frankfurter from Harvard and Wiley Rutledge, the dean of the University of Iowa Law School.

These Roosevelt justices had a profound impact on American life from the 1930s until Douglas retired in 1975.

Other recent presidents appointed some Appeals Court judges to the Supreme Court but they weren’t afraid to look elsewhere. Johnson’s groundbreaking selection of Marshall elevated a longtime civil rights lawyer who had argued Brown vs. Board of Education before the court for the NAACP, after John Kennedy had appointed him to the Court of Appeals over the fierce objections of southern Democrats. Johnson also named a longtime crony, Abe Fortas, who had been a brilliant defense attorney. John Kennedy’s only appointee was Byron White, who spent most of his career in private practice and was Kennedy’s deputy attorney general before his elevation.

Dwight Eisenhower took a different approach, naming four Appeals Court judges to the Supreme Court and one politician, former California Gov. Earl Warren, while Harry Truman went the political route. He named as justices his attorney general, Tom Clark, and two former Senate colleagues, Sherman Minton and Harold Burton. He also picked a politician as chief justice, Fred Vinson, a onetime House member and secretary of the treasury.

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It may give President Obama some pause that both Presidents Truman and Eisenhower called two of their court appointees the biggest mistakes of their presidencies and both were politicians. For Eisenhower, it was Earl Warren, who turned out to be far more liberal than the Republican moderate Eisenhower expected. Warren, he said, “was the biggest damn-fool mistake I ever made.â€

For Truman, it was his attorney general, Tom Clark, whom he described as “my biggest mistake†before deciding it was necessary to tell a biographer just a bit more.

“It isn’t so much he’s a bad man,†Truman said of Clark. “It’s just that he’s such a dumb son of a bitch.â€

Dick Ahles is a retired journalist. E-mail him at dahles@hotmail.com.