A case for judicial diversity

Pall bearers carry the coffin of Supreme Court Justice Antonin Scalia into the U.S. Supreme Court building in Washington, Feb. 19, 2016.. (Doug Mills/The New York Times)

President Barack Obama has said he will soon nominate a successor to Antonin Scalia, the Supreme Court justice who died unexpectedly on Feb. 13 in Texas. The president promises that the candidate will be someone Senate Republicans have considered and approved in the past. Some of the betting focuses on Attorney General Loretta Lynch.

The Senate would do well to carefully and fairly consider whomever he appoints.

If nominated and consented to by the Senate, Ms. Lynch would make an already conventionally diverse Supreme Court even more so. She would be the court’s second black member and its fourth woman. She has a strong record as a prosecutor, and it has been a while since a prosecutor sat on the Supreme Court. Raised a Baptist, she would add religious diversity to a court that consists today of five Roman Catholic and three Jewish justices.

But there are other measures of diversity besides race and gender that should go into the choice of a new justice, as Justice Scalia himself pointed out in a dissent to a Supreme Court ruling last year.

The federal judiciary, he wrote “is hardly a cross-section of America,” noting that of the nine members of the Supreme Court, six, including himself, went to Harvard Law School and three to Yale Law School, and that only one hailed from an inland state. Indeed, as The New York Times proudly pointed out, before Mr. Scalia’s death, four of the nine justices were from four boroughs of New York City, leaving out only Staten Island — and giving rise to the view that it is now Staten Island’s turn.

Ms. Lynch, for example, would not dilute the court’s Harvard-Yale flavor. She is a graduate not only of Harvard Law School but also of Harvard College. And she comes from the East Coast state of North Carolina.

It would be wise for this president and his successors to broaden the pool of candidates they consider for nomination to the Court to include politicians like Chief Justices William Howard Taft and Earl Warren and Justice Hugo Black — men and women with experience of the nation grounded in the vast lands between the two coasts; and others not cut from the current cloth of the federal judiciary.

Justice Scalia was critical of the court’s “practice of constitutional revision by an unelected committee of nine, [which] always accompanied ... by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

It is highly unlikely that President Obama will appoint a strict constitutionalist to the court. And that is something for the Senate to consider as it ultimately takes up its “advice and consent” role in the nomination to fill the seat held by Mr. Scalia.

But to give the last word to Justice Scalia, who said leaving fundamental social questions to be decided “by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”