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Opinion

Supreme Court's bench has never been less diverse

Race and gender are important, but with six Harvard justices, President Obama should consider geographic, professional, and social backgrounds, too, when he evaluates nominees.

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As Professor Meador has emphasized, the makeup of today's court contrasts sharply with those of the past. Between 1940 and 1970, the court included four former senators, a former member of the House of Representatives, three former state governors, five former attorneys general, a former secretary of the Treasury, and a former secretary of Labor.

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Justice Hugo Black, who died in 1971, was the last Supreme Court justice to have served in Congress. Justice Lewis Powell, who retired in 1987, was the last to have been a practicing lawyer when he was appointed.

The court is a national institution and should reflect the diversity of the country. Different educational, professional, social, and geographical backgrounds yield varying legal and social perspectives and are more likely to enrich judicial decision-making. If justice is nothing more than "social happiness," as one legal philosopher has put it, then it is more likely to be achieved in a multiethnic, multicultural nation if that reality is reflected in its institutions.

The fact that two-thirds of the current justices have come from a single educational institution is, as Meador suggests, not politically or socially desirable and evokes the danger of an elitist "old boy network" incompatible with American values.

Nicholas Katzenbach, the deputy attorney general under President Kennedy, recently has written of how Paul Freund, the foremost scholar of the Supreme Court at the time, was considered by Kennedy for his first Supreme Court appointment, only to be rejected, despite his superb qualifications, just because he was from Harvard. Kennedy felt that it would appear that too many of his appointments were coming from one university.

A few decades ago, it was plausible to argue that there were not enough qualified women in the legal profession to achieve gender balance at the Supreme Court. That is not true today, and women are woefully underrepresented on the court. In its entire history, there have only been two women justices; Sandra Day O'Connor was appointed by President Reagan in 1981 and retired in 2006. Ruth Bader Ginsburg was appointed in 1993 by President Clinton. A more representative court would include four or five women judges.

As Justice Oliver Wendell Holmes, who served from 1902 until 1932, observed of the court, "We are very quiet there, but it is the quiet of the storm center." Because the nine largely anonymous justices sit at the center of the storm and are the final arbiters of power, the value of a wide spectrum of perspectives can hardly be overstated.

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