Barbara A. Perry on Supremely Representative: Should the Nation’s Highest Court Look Like America?
The U.S. Constitution is utterly silent on qualifications for members of the federal judiciary. Theoretically, a justice does not even have to be a lawyer, but, in practice, all 110 justices in the Supreme Court’s 220-year history have been attorneys. With no constitutionally mandated selection criteria, presidents have been free to determine the standards by which they choose nominees. Professor Henry Abraham, the nation’s leading Supreme Court expert, has identified four primary selection criteria that presidents have used in the appointment process: 1) merit, 2) ideology, 3) friendship, and 4) representation.
Some observers argue that merit, like beauty, is in the eye of the beholder, but an objective definition would include keen intellect, superb education, effective communication skills, judicial temperament, impeccable moral character, and diligence. Ideally, merit should be at the top of every president’s list, and most of the justices in the U.S. Supreme Court’s history have possessed genuinely impressive qualifications. Those justices considered among the “greats” reflected these traits to the highest degree. John Marshall, Oliver Wendell Holmes, Louis Brandeis, Hugo Black, Felix Frankfurter, and Earl Warren are enshrined in the Court’s pantheon.
The tribunal’s current members are considered the most intellectually gifted since the scholarly Roosevelt Court of the 1940s. Harvard, Yale, Princeton, Columbia, and Cornell are among the Ivy League schools with alums on the contemporary Supreme Court. Other first-rate institutions of higher learning, such as Stanford, Chicago, Oxford, and the London School of Economics, have also prepared the current justices for the cerebral rigors of their judicial duties. Six of the nine were elected to Phi Beta Kappa, the nation’s premier honor society; one received a prestigious Rhodes Scholarship; two-thirds served on their school’s law review; and two garnered plum clerkships at the Supreme Court after law school.