With the passing of Supreme Court Justice Antonin Scalia, much has been said of late about who will replace this member of the Court who will not soon be forgotten -- and more important, when that replacement will occur.
Whenever a nominee is confirmed to the Court, I certainly hope it is an individual that diversifies the bench. The Court, in its current configuration, is fairly diverse by the metrics commonly used to define diversity, which are race and gender.
But the diversity quotient on the Supreme Court quickly wilts when one factors that all justices came from either Yale or Harvard law schools.
Now, there obviously is nothing wrong with having individuals on the Supreme Court from, arguably, our two most prestigious law schools. But should it stop there?
In his dissent in Obergefell v. Hodges, which found that the Constitution guaranteed a right to marriage for same-sex couples, Justice Scalia argued persuasively for my current concerns about diversity on the court.
Scalia opined:
Take, for example, this 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.
Scalia definitely makes a salient point specific to the Court, even though his comments come at the expense of being on the wrong side of history.
If, however, Scalia's criterion is taken seriously, it quickly becomes apparent that seeking diversity in its truest sense becomes an arduous task that could have presidents painstakingly beholden to a process rather than finding the best possible candidate. But that should not serve as a deterrent from expanding efforts to make the Court more diverse.
Presidents, Democrats and Republicans alike, want, and quite frankly must, nominate someone with superior credentials. Does that mean, judging by the Court's current makeup, it's fine to have women on the court as long as they come from the state of New York?
This is not to suggest there is a conspiracy that presidents only consider Harvard-Yale educated Catholics or Jews for the nation's highest court in the land, but that nevertheless is the existing outcome. It is an outcome that reflects a small slice of who and what America has become in the fledgling moments of the 21st century.
Though Justices Sonia Sotomayor and Samuel Alito have law schools (Yale) and religion (Catholicism) in common, it obviously does not, based on their voting record, guarantee uniformity of thought. While there may be differing perspectives on the Court, they all stand at the same vantage point.
Since Justice Sandra Day O'Connor left the Court in 2006, we've not had someone who brought a demonstrated diversity of geographical origin, religion or, in O'Connor's case, someone who held elected office.
Nominations to the Supreme Court since the failed submission of Robert Bork (which bequeathed the nation the verb "Borked") have become a reflexive process that places far more emphasis on how a nominee will delicately answer the abortion litmus test questions than ensuring someone be added to the bench with not only solid legal acumen but also in possession of a range of experiences that reflect an ever-changing nation.
Prior to his appointment to the Supreme Court, Justice Anthony Kennedy taught constitutional law at the University of the Pacific's McGeorge School of Law in Sacramento, Calif. Are we to believe it is impossible that a graduate from McGeorge could sit on the highest court in the land?
What's wrong with having a member of the Court who also spent some time as county sheriff?
Constitutional interpretation is not simply reading and deciphering words on a document that was originally ratified in 1788. It is also having some appreciation for, and struggling with, how the elasticity of those words can maintain relevance in the 21st century.
A wider swath of diversity on the Court is needed to make the connection between judicial decisions and its effect on everyday Americans. And that path is not limited to a corridor that connects New Haven to Cambridge.