By ADAM LIPTAK
Published: May 1, 2009
WASHINGTON — The current Supreme Court, made up entirely of former federal appeals court judges, is in some ways the most insulated and homogenous in American history.
None of the justices have held elective office. All but one attended law school at Harvard or Yale. And the only three justices in American history who never worked in private practice are on the current court.
His reputation for reclusiveness notwithstanding, Justice David H. Souter brought real-world experience to the court, having served as a trial judge in New Hampshire and as the state’s attorney general. No other justice has either sort of experience.
Justice Souter’s departure thus presents President Obama with more than the usual array of choices based on credentials, ideology and demographics. Mr. Obama also has the opportunity to move the court back toward what it has been for most of its history: a collection of prominent individuals with broad experience.
“Diversity of inputs makes for stronger outputs,” said Lee Epstein, a law professor at Northwestern University and an authority on the court. “Diversity has become a term for race and gender, but it also applies to career experience and background.”
Until recently, Supreme Court justices were often former legislators, governors, cabinet members, law professors and practicing lawyers. Justice Souter, who surprised his conservative patrons with his generally liberal votes, bears some of the blame for the emergence of what scholars call the norm of prior judicial experience.
Justice Souter’s paper trail on the New Hampshire Supreme Court failed to illuminate his views on questions like abortion and race, and he served for only three months on the federal appeals court in Boston before President George Bush named him to the United States Supreme Court in 1990.
Wary of taking such risks, presidents since then have turned to candidates with substantial track records on the federal appeals courts and in the executive branch. The withdrawn nomination in 2005 of Harriet E. Miers, who was not a judge, is an exception that proved this rule.
During the campaign last year, Mr. Obama said he would consider candidates with practical political experience, pointing to Earl Warren, who was governor of California before he became chief justice in 1953. The Warren Court was a golden age for liberals, and the chief justice’s political skills helped unify the court.
That sort of thinking might argue in favor of candidates like Gov. Jennifer M. Granholm of Michigan, Gov. Deval Patrick of Massachusetts and Janet Napolitano, the homeland security secretary and a former governor of Arizona.
The current court is the first to be made up entirely of former federal appeals court judges. And only a few of those appeals courts at that: seven of the justices served on what might be called the court of appeals for the Acela circuit, in Boston, Philadelphia and Washington. (The exceptions are Justices John Paul Stevens, who served in Chicago, and Anthony M. Kennedy, who served in California.)
“It would be terrific to see someone from outside the Washington-Cambridge-New Haven corridor,” said Timothy P. O’Neill, a law professor at the John Marshall Law School in Chicago.
Professor Epstein said there was evidence that the Supreme Court had treated lower court decisions from the Northeast with more deference. “There seems to be an Eastern-Northern bias on the court,” she said.
As late as 1972, when William H. Rehnquist joined the court as an associate justice, former federal judges were in the minority. Before the presidency of Dwight D. Eisenhower, about a third of the nominations to the Supreme Court went to sitting judges. Since 1953, more than two-thirds have.
In 1946, for instance, eight of the nine justices had not been sitting judges when they were appointed, Professor O’Neill wrote in a 2007 article in The Oklahoma Law Review criticizing the current uniformity of the backgrounds on the court. The article was called “The Stepford Justices.”
The justices who sat in 1946, by contrast, included two former attorneys general, two senators, a Treasury secretary, a chairman of the Securities and Exchange Commission and a law professor.
Tracey E. George, a law professor at Vanderbilt, said the most important gap on the court today was in former lawmakers.
Justice Stephen G. Breyer did serve as counsel to the Senate Judiciary Committee, and that experience has plainly affected his approach to the interpretation of statutes, one influenced by a deep understanding of the way laws are made.
Similarly, Justice Souter’s practical experience as a trial judge has informed his understanding of the workings of the justice system. His voting grew more liberal with time, perhaps as a consequence of exposure to imperfections in state criminal justice systems.
“If he had stayed as conservative as when he started,” Professor Epstein said, “he’d be to the right of Kennedy.” Justice Kennedy is the court’s swing vote these days.
By the measures used by political scientists, Justice Souter is the most centrist of the four members of the court’s liberal wing. Put another way, he is the least liberal of the three justices widely viewed as likely to depart in the next few years.
The other two are Justice Ruth Bader Ginsburg, who recently underwent surgery for pancreatic cancer, and Justice Stevens, who is 89.
In voting against the nomination of Chief Justice John G. Roberts Jr. as a senator, Mr. Obama said that “adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon.”
Mr. Obama, a former professor of constitutional law who retains a fascination with the court, said that what concerned him most was the last mile, one that must take account of “broader perspectives on how the world works.”
That said, Mr. Obama’s first three appeals court nominations went to sitting judges. “He could not have been more cautious,” Professor George said.
A version of this article appeared in print on May 2, 2009, on page A1 of the New York edition.
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