I applaud particular parts of President Obama's guest piece on SCOTUSBlog describing his intentions for appointing a new Supreme Court justice. I want to focus for the moment on this bit:
[T]he third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.
I hope he does... because it will give four opportunities to upset the demographic apple cart that are all desperately necessary.
First, I respectually suggest that there be strong consideration for an individual who did national service. Right now, we don't have one — not even one who served three years as a JAG right out of law school; and we haven't had one who had done truly significant national service since the 1970s. And that need not be just military veterans, either; the Peace Corps, among other opportunities, is equally important. In part, this is because national service almost inevitably involves engaging with international issues in a way that very, very few lawyers do, and the increasing interaction between purportedly domestic considerations and the world is inherently part of "the daily reality of people's lives in a big, complicated democracy, and in rapidly changing times." For example, I don't know a single military-veteran lawyer, or Peace Corps-veteran lawyer, who thinks that the Court's reasoning regarding the validity of convicting foreign nationals without ensuring prior notice to their embassies is even defensible, let alone right.
Second, I am hoping that President Obama puts forth a candidate who got some of that important life experience before law school. If he's choosing only from sitting judges, that's going to be very difficult — the profession's blind spot about "second-career lawyers" extends down to spending even three years between undergraduate studies and law school (see previous paragraph!). Even if he's choosing from among tenured law professors, that's going to be very difficult. Ideally, I'd like to see at least one justice who — despite a distinguished legal background — also knows what it's like to make important, and even critical, decisions without that legal background. Unfortunately, the last such justice was either Taft or Holmes... and that's just not good enough.
Third, I am hoping, but really expect otherwise, that President Obama will appoint someone who does not have strong ties to the howling barbarian wilderness east of the Hudson River, and I don't mean just That City either. No ties to New York/New England law schools, or law firms, or upbringing, please. There are fine aspects to all of them... but their presumed hypercompetence, let alone universality of experience, is far from one of those aspects. And this is not just some "tough as nails litigator" posturing, either; indeed, if that "rapidly changing world" includes the implications of the 'net and of IP-heavy technology, the region east of the Hudson is third-rate for legal talent (including, as a whole, the law schools).
Fourth, as a pure pipe dream, please nominate someone with a science or engineering background of some rigor — at least a minor in one of the core scientific or engineering disciplines. There is no excuse whatsoever for Justice Scalia's lament of ignorance that was, sadly, the only honest such statement in the entire case (even considering the backgrounds of all twenty-odd clerks... and too many of the lawyers arguing the case!) as reflecting our "rapidly changing times." Of course, the hostility of the legal profession and legal academy to scientific backgrounds is not going to help provide candidates here. Part of the problem is that undergraduate science grades tend to be slightly lower than those in the social sciences and humanities (let alone business!), meaning that equally intellectually capable candidates have lesser numeric credentials... and those credentials are essentially lifelong branding, with a very hot iron indeed. <SARCASM> Another part of the problem is that scientists and engineers have a deplorable tendency to want to change theory to match the facts, which is not consistent with stagnans decisis or classroom decorum under the Socratic Method (example: the entire chain of reasoning in Palsgraf is bad science/tech now, and was bad science/tech then, but it is a rare Torts professor who will even allow discussion of that problem and what it implies for the entire field of negligence-based tort law). </SARCASM>
But I expect that none of this is going to happen. The only "demographics" that are going to be considered — by anyone — are gender and ethnicity. Economic background will be ignored, except as it directly relates to ethnicity; geographic diversity will be, at best, an afterthought; religion (and particularly an ardent absence thereof) is right out.