Diversity key in finding Scalia's replacement on Supreme Court

Photo by Bob Daemmrich

The eulogies for Justice Antonin Scalia have been spoken. Now, he must be replaced on the U.S. Supreme Court. President Obama has vowed to nominate his successor within the next few weeks. As he contemplates his choice, I hope he will consider the need for further diversity on the court. We are a pluralistic nation and becoming more so with every passing day. While the president cannot make the court reflect all of our diversity with this one pending appointment, he can move us further in that direction.

Geography

Judicial wisdom can be found across America. It does not reside in only a few places.

I am a great admirer of New York City, but must four of our nine justices come from there, as was the case before Justice Scalia died? And all of the present sitting justices come from either California or the East Coast, so there is no need to look in those venues for the next appointment.

Rather, now is the time to consider candidates residing in the Northwest, the Midwest, the Southwest or the South. Judicial wisdom can be found across America. It does not reside in only a few places.

For example, everyone presently on the Supreme Court graduated from either Yale or Harvard Law Schools. Without question, these are two of the great law schools of our nation, and their graduates have contributed a great deal to the life of our country and certainly to our legal profession. But the same can be said for so many graduates of so many of the law schools across America.

In particular, I suggest the president consider a graduate of one of our state law schools, which have done a commendable job of opening access to legal education to so many of our young people, including underrepresented groups.

Religion

For the first time in history, no member of the Protestant faith sits on the Supreme Court. Six of the Justices are Roman Catholic, and three are Jewish. Since religious issues constantly confront the court under the First Amendment, religious diversity seems like a good idea.

While a Protestant nomination would accomplish that goal, the president should not overlook America's growing religious pluralism by considering, for example, someone from the Hindu faith or even a nonbeliever (since there is no religious test for service on the court). If he wanted to be especially bold, he could nominate a Muslim, though the present political climate suggests it probably won't happen this time.

Experience

The Supreme Court that decided Brown v. Board of Education consisted of, among others, a governor, an academic, a senator, an attorney general and a regulator, none of whom had had prior judicial experience.

Presently, seven members of the court are from the federal courts of appeal, and one, Justice Elena Kagan, is an academic. No one comes from a state court, not to mention a state house, a state legislature, Congress or a law practice.

That was not always the case: The Supreme Court that decided Brown v. Board of Education consisted of, among others, a governor, an academic, a senator, an attorney general and a regulator, none of whom had had prior judicial experience. Certainly, it could not hurt to bring broader experience to the court, and it just might help.

As the president considers bringing more balanced experience to the court, he might focus on legislative experience — after all, issues of statutory interpretation make up a significant part of the court's docket.

And why not look to the states? For whatever reason, state legislatures often seem better at reaching across the aisle to find solutions to pressing problems rather than struggling with the gridlock that characterizes Washington. Even in my red state of Texas, there are good instances of cooperation between the parties. Legislators with moderate dispositions who seek the middle path can be found in most states. They should be sought out and considered. That may be just what we need in today’s polarized world of 5-to-4 votes.

I know that diversity will be an important issue to President Obama, based on his record to date. Certainly, he will be thinking of diversity in its normal context of race and ethnicity and gender. I hope that he will include these other kinds of diversity as he makes his choice. They are not mutually exclusive.

Royal Furgeson

Founding dean, UNT Dallas College of Law

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