Guest Post by Carlos Gonzalez.
President Obama was elected on a platform of change. Yet, when it comes to appointing federal judges, especially justices to the U.S. Supreme Court, change is the last thing we have seen. Consider Elena Kagan. I was disappointed by her nomination, not because I disagree with her views on key issues, but because she so easily fits into what has become the mold for a Supreme Court justice. Now, I am confident that Kagan will make an excellent judge. Her educational and professional qualifications are impeccable, her intellectual capacity unquestionable. My beef is different. I am concerned that eligible justices are being vetted against a set of criteria that is so limited that we are excluding many competent men and women from the Court. The last three individuals to be appointed and confirmed have all shared similarly impressive backgrounds — elite schools, followed by a period of public service, culminating in the most prestigious judicial appointment in the land.
There is now a formula that aspiring justices (yes, there are people who plan these things) can follow. As a result, we can expect future justices to share similar traits — intelligent (as measured by the specific schools they attended), accomplished (as proven by the prestigious offices they have held in the executive and judicial branches) and noncontroversial (as made clear by the absence of a paper trail beyond the most arcane academic writings). Don’t get me wrong. We need bright and successful men and women serving on our nation’s highest court. But do all of our justices have to be near clones of one another, distinguishable only by their preferred method of constitutional interpretation? Has it really come down to whether the nominee considers the Constitution to be “living” or “dead”? It is too late for President Obama to reconsider Kagan’s nomination. But there is the possibility that he will have the opportunity to appoint at least one more justice. And if he doesn’t, there will be other occupants of the White House who will share in this important task.
To our current and future leaders, I offer the following suggestion. Break the mold. Walk away from what has become a cookie-cutter approach to the selection of Supreme Court justices, and try something completely different. What if President Obama nominated an assistant public defender, for example? Perhaps one of the appellate lawyers working for the Miami-Dade County Public Defender’s Office could fill the next vacancy? All are experienced appellate practitioners, some have successfully argued before the Supreme Court, and still others are Ivy League educated. Could anyone argue that these lawyers lack the skills necessary to sit on the Supreme Court? The same could be said about many of the lawyers working for the New York Legal Aid Society or the Neighborhood Defender Service of Harlem. But, let’s not limit our options. There are lawyers working throughout the United States who are equally up to the task. What about those lawyers working for small to midsize firms in cities outside New York, Washington, Chicago and Los Angeles? Is a lawyer working for a small firm in Fargo, N.D., any less qualified than one working for a white-shoe law firm with 1,400 lawyers in offices around the world?
Now, I am not a defender of mediocrity. This is not a plea for “judicial affirmative action.” Yet if qualifications are important, a nominee’s background is critical. Where justices came from, and what they did immediately before their appointment will surely influence the way in which they look at cases. In this regard, I am interested in the perspective of the small-firm lawyer who previously devoted his or her practice to fighting for tenants’ rights; or the assistant public defender who struggled to provide a winning defense despite a crushing workload; or the lawyer who served as general counsel to the small and midsize businesses that make up the backbone of our economy. A justice with this experience — untainted by a long period of time on the bench, in a big city or at an elite law firm — would surely be a welcome change.
Carlos Gonzalez is a partner in the Miami office of Diaz Reus, where he concentrates his practice in appellate litigation.
This is an OP Ed, submitted to Supreme Court Insider / published by National Law Journal and ALM /Commentary published July 28, 2010.