A Populist SCOTUS Strategy
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section. 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. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
I presume that President Obama will nominate a sacrificial lamb — Eric Holder would be perfect — and force the Senate GOP to make good on its promise not to consider a SCOTUS nomination until the next presidency. I’m sure they would, and that would give the Democrats something with which to fire up their base this fall. If the depressing Hillary Clinton is the Democratic nominee, as she almost certainly will be, they will need all the juice they can get.
If I were a Republican — especially if I were Donald Trump, but any Republican will do — I would pledge to nominate a Supreme Court justice that looks like America: the America that has been ignored and disdained by legal elites. The Republican’s nominee to the High Court will be chosen to increase diversity. He or she should be an Evangelical from a region and culture not represented on the Court now. And he or she should have graduated from a top-notch law school that is not Harvard, Yale, or any of the Ivy League institutions. The GOP presidential candidate could frame this promise as a way of honoring Justice Scalia.
In a perfect world, I don’t think there should be a de facto religion test for Court members, nor should there be a geographical test, nor a law school test. But as Scalia pointed out, when the Court usurps its role in a democracy and starts making laws, this matters. Besides, this strategy would have the benefit of forcing the left to confront its own diversity rhetoric and commitments, which would likely reveal them for exactly what many of us think they are: thin veneers masking power grabs.
It is surely the case that somewhere in this vast and diverse nation, there are judges who are extremely good at what they do, despite the fact that they do not hold Ivy League law degrees. There are surely first-rate judges who are also Evangelical Protestants, a demographic group that makes up 25 percent of the US population, but zero percent of the US Supreme Court. There must be worthy SCOTUS candidates not from a coastal state; only Pinpoint, Georgia’s Clarence Thomas comes from a state in the American interior. All the other sitting justices are from New York City (3), New York state (1), New Jersey (1), and California (2). Scalia, of course, was born in New Jersey, but raised in New York City.
Come on, Republican candidates: pledge that when you are elected president, you will end the Harvard-Yale death grip on the Supreme Court. You will appoint a Supreme Court nominee from the Other America. In his Obergefell dissent, Justice Scalia said that the Court, as it now operates, and as it is now constituted, is a “threat to democracy.”
Do you agree? If you agree, honor Scalia’s prophetic wisdom and bring more balance to the Court by nominating a justice from Flyover Country.
UPDATE: OK, yes, Georgia does have some Atlantic beachfront, so technically, it’s a coastal state. And yes, John Roberts may have been born in Buffalo, but he spent most of his childhood in Indiana. Still…