Thursday, August 20, 2009

Is Justice Sotomayor Really Diverse?

I'll be honest--I was happy to see Justice Sotomayor get the nod, and confirmation, to SCOTUS as she obviously brings many levels of diversity to the Court. This, in my opinion, is wonderful. It is essential that the Justices of this nation’s highest court have the experiences necessary to adequately address a wide range of legal issues.

My emphasis on diversity is largely attributed to my belief that all judges, to varying extents, practice judicial activism. Everyone, even the strictest textualist, has his/her legal analysis shaped by his/her policy views in some, however remote, manner. Like it or not, the policy views of the Justices drastically affect their constitutional interpretation. Therefore, due to the pervasiveness of judicial activism, it’s imperative that the Court be comprised of legal scholars with varying backgrounds so as to ensure that one set of policy views does not guide the Court’s legal analysis. A homogeneous Court is not ideal for this country.

In addition to being a brilliant legal mind, Jusice Sotomayor brings a truly unique background to the Court. From her gender and ethnicity to her impoverished childhood, Justice Sotomayor’s appointment has helped ensure that the Court be anything but homogeneous, and this should be applauded.

However, Justice Sotomayor lacks diversity in one key area: her legal education. She graduated from Yale Law School in 1979. Justice Sotomayor’s Yale Law pedigree means that eight of the nine current Justices attended Harvard or Yale Law School (granted, Justice Ginsburg transferred to Columbia after her first year at Harvard). It may seem trivial to dwell on such an issue. After all, Yale and Harvard are the nation’s preeminent law schools and it only makes sense that the Justices possess the most accomplished educational backgrounds. However, when one understands that policy views play a vital role in the Justices’ legal analysis, it has to seem a bit odd that so many Justices received their legal training (or legal indoctrination, if you will) at the same institutions. Seven of the eight current Justices who attended Harvard or Yale Law School graduated in the ‘60s or ‘70s, meaning that they were likely taught by many of the same professors. These professors undoubtedly played a role in molding their legal minds.

I’m not arguing that the appointment of the next Justice come from a tier three law school for the sake of diversity. I merely think that too much emphasis is put on a Harvard or Yale Law pedigree, particularly by the media. Although Justice Sotomayor is extremely deserving of her appointment, it’s important to remember that there were several other equally impressive potential nominees that did not possess the Harvard/Yale Law pedigree. See, e.g., David Tatel (Chicago ’66); Diane Wood (Texas ’75); Leah Ward Sears (Emory ’80); Kim McLane Wardlaw (UCLA ’79); and Margaret McKeown (Georgetown ’75).

12 comments:

  1. I think this is an unintended consequence of the crude meritocracy of standardized testing. For instance, the obsession with an ivy pedigree for SCOTUS hopefuls is a relatively recent phenomenon. See the Wikipedia list of Justices by education. One might presume that there is a concentration of talent in the ivy institutions enabled by the LSAT and fueled by our increased mobility. As the legal profession places greater and greater weight on institutional reputation, I think it's bound to continue, unfortunately. If we look at the life histories of Robert Jackson or the elder Harlan, our current Justices have become downright homogeneous.

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  2. I have to agree with Luke, and the irony is that Sotomayor actually had a lower LSAT from what I heard.

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  3. Luke-

    Interesting comment, although I’m not sure I totally agree. I gather that you’re saying we assume that the best and brightest attend Harvard/Yale because of the “meritocracy of standardized testing.” This may be partially accurate, but affirmative action and legacy candidates still exist.

    And I wonder how many actually believe that an attorney with a Harvard/Yale degree is a better practitioner than an attorney with a Stanford/Columbia/NYU/Chicago degree. Do we really believe that a minor differential in LSAT scores makes one attorney a SCOTUS nominee and the other not?

    So why the recent “obsession with am ivy pedigree for SCOTUS hopefuls?” I’d say it’s linked to the growth of mainstream media. Take a look at the Sotomayor nomination. It was headline news on CNN, MCNBC, Fox News, and the like. With the heavy coverage provided by these news outlets, a President is most obviously concerned with his image. And the fact that a nominee is from Harvard or Yale offers instant credibility to the nomination.

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  4. But WHY does it offer instant credibility Joshua? That's what Luke's getting at.

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  5. @ 8:04;

    Do you honestly believe that the public knows what the average LSAT scores of YLS and HLS students is? I doubt it. Harvard and Yale law possesses the instant credibility for much more than its’ median LSAT score. That’s what I’m getting at.

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  6. Anonymous @ 6:24, re: Sotomayor's lower LSAT score:

    Please do tell, what exactly have you heard about Justic Sotmayor's LSAT score? And what are your sources?

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  7. Justice soromayor had a 155

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  8. Who is your source on the article discussing justice soyomayors offer to her former clerks on coa

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  9. 6:07- Sotomayor herself has gone on record as saying she was a beneficiary of affirmative action and her LSAT scores were not comparable to those of her fellow students at Yale. Her skin happened to be the right color.

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  10. Um, how about the fact that she's also a Catholic?

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  11. Skin the right color? She may be Latina, but she's still White. If Latino/a you can be White, Black, Moreno (Brown), or Indio. She's White.

    Also, regarding the LSAT: (1) Should it be a requirement that Supreme Court Justices score above some number on their LSAT and/or Bar exam? (2) What is the source for that LSAT information? 155 seems astoundingly low for Yale, not to mention that I'm pretty sure LSAT scores have been re-calibrated a couple of times since she went to law school.

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  12. I've often thought it would be progress to elect a president who wasn't from Harvard or Yale, regardless of party affiliation.

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