Excellence but also diversity

May 19, 1993

White House officials have told reporters there will be Supreme Court nominee in two weeks. The search began before Justice Byron White announced two months ago that he will retire when this term ends in late June or early July. Some Clintonites began planning for a Supreme Court vacancy during the transition last fall.

We have a couple of problems with the process to date. One is that the Washington leak machine suggests strongly that the nominee will probably be one of three or four federal judges, all men and all Caucasians (one is Hispanic). That hardly seems to meet the standard George Stephanopoulos said the president had set last March: "Excellence but also diversity." Seven of eight justices who will remain after the White departure are males. Seven are white. Seven are former lower court judges. Adding one more pea to that pod is not diversity.

The last of these characteristics is the most disturbing indicator of a lack of diversity. Judges look at the law and the Constitution in a slightly different way than other lawyers involved in the legal-political process. Not quite bloodless, but more legalistic and scholarly than, say, a senator, representative, governor or mayor would. Officeholders have a lot of experience dealing with constituents. They know firsthand how the law affects the lives of people. Judges lead more cloistered lives.

In addition to adding diversity to the court, President Clinton also once said that he wanted someone with "wide experience . . . in the problems of real people." Federal judges, especially those with 12 to 15 years experience, as is the case with the men on the latest leaked list, have pretty much limited their professional lives to dealing with the problems of briefs, lawyers and other judges. Those are real people, too, of course, but representative of a small part of the universe of Americans directly affected by how justices (who are not even required to be lawyers) decide cases.

The Supreme Court needs justices who know the law, of course, but it also needs justices who know government and politics. The ideal mix? Five and four? Six and three? Hard to say. But eight and one is definitely not a diverse body.

The second problem we have with the process under way to find a Supreme Court nominee is that there does not seem to be much if any involvement from the Justice Department. Traditionally presidents have relied on the attorney general as well as on White House aides in coming up with the short list. From all appearances, in this case the buck has stopped at the White House Office of the Counsel, without even crossing the desk of Janet Reno.

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