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The Diversity Scam and the Supreme Court

Our obsession with diversity has produced a governing class of monolithic sameness.

3:40 PM, May 10, 2010 • By JAMES PIERESON
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President Obama’s Supreme Court nominee, the current U.S. solicitor general and former Harvard Law School dean Elena Kagan, is being touted as a “diversity” choice because she is a woman, while there are currently just two women on the Court in a country in which women make up more than half the population.

Previous choices to the Court have been similarly touted as bringing diversity to that august institution. Sonia Sotomayor, Obama’s previous appointment, was hailed because she is a woman and the first Puerto Rican appointed to the Court. Justice Scalia was the first Italian, Ruth Bader Ginsburg the first Jewish woman, and Clarence Thomas only the second African-American appointed to the Court, filling the vacancy of Thurgood Marshall. Yet the diversity on the Court always seems to stop at considerations of race, gender, and ethnicity.

On other important grounds, the Supreme Court appears as a surprisingly monolithic group of justices. Nearly all attended elite colleges and proceeded from there to a few Ivy League law schools. They come from either a few northeastern states or from California. Considered as a group, the absence of genuine diversity on the Court is more than a little stunning.

Here, then, is the line-up of the current Court, with nominee Kagan penciled in, with their colleges, law schools, religious background, and region of residence listed:

In terms of undergraduate colleges, five of the nine attended Ivy League institutions (Princeton, Harvard, and Cornell), and two attended Stanford University. The two outliers are Scalia and Thomas who (as Catholics) attended Georgetown University and Holy Cross (respectively). There are no public institutions represented in the bunch, even though the overwhelming majority of college students in the United States attends such institutions. Outstanding public systems such as those in the states of Michigan, Wisconsin, Ohio, California, Texas, and Florida are completely unrepresented on the Court. It is as if people who live in the vast region between New York and California do not exist for the purposes of the Supreme Court.

With respect to law schools, the unrepresentative character of the Court is even more pronounced. Eight of the nine justices (including Kagan) attended either Harvard or Yale Law Schools; the ninth—Ginsburg—attended Columbia. Just three Ivy League law schools have supplied the legal education of the entire Supreme Court. What kind of diversity is that? There are fine law schools in every state of the union, many of which are highly rated even by Ivy League standards. These schools train the leaders of their respective states, yet the graduates of such schools are nowhere represented on the Supreme Court. In past generations they sent many distinguished graduates to the Supreme Court, typically appointed by presidents who were sensitive to the importance of regional and political diversity on the highest court in the land.

In terms of regional representation, the current Court (again with Kagan included) is composed of eight members from northeastern states and a single member (Kennedy) from California. Three of the nine members—Ginsburg, Sotomayor, and Kagan—were born and raised in New York City, and two (Scalia and Alito) hail from nearby New Jersey. Thomas grew up in Georgia and Roberts in Indiana, but both attended school in the Northeast and embarked on legal careers there as adults. Aside from these childhood attachments, the vast interior of the country is unrepresented on the Court.

Nor is there much religious diversity on the Court as six members are Roman Catholics and three are Jewish. In this sense, they are more or less representative of the region in which they have made their careers. With the retirement of John Paul Stevens, there are no longer any Protestants on the Court, even though 70 percent of Americans are associated with Protestant churches of various kinds.

It gets even worse. All of course are lawyers. Eight of the nine—excepting Kagan—were elevated to the Court from judicial positions to which they were appointed because of their training, intelligence, and connections. None has held an elected office that would have required an appeal to the common sense of voters. All have lived and worked in the hermetic world of elite colleges, Ivy League law schools, and the federal bench.

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