Diversity on the Supreme Court

The nomination of Sonia Sotomayor to the Supreme Court has sparked a debate over diversity on the Supreme Court.

Let’s look at Sotomayor’s life story: went to college, went to law school, became a government employee drawing a paycheck (source). This is remarkably similar to the life story of other senior government officials as well as politicians. No part of her story includes “was at risk of losing capital due to a change in government regulation” or “was at risk of losing job due to downturn in economy.”

Given that a large number of Supreme Court cases involve business disputes, important diversity on the court would be attained by adding a Justice with some experience in business. A lawyer, regardless of race or sex, who had started a dry cleaners and navigated the regulations associated with hiring a couple of employees would have a radically different experience to draw upon than the current Justices.

Consider George McGovern, one of the towering figures of 20th Century American liberalism. After a life in politics, he purchased a hotel. In a 1992 article, “A politician’s dream–a businessman’s nightmare”, he wrote “I also wish that during the years I was in public office I had had this firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. senator and a more understanding presidential contender.”

He added “I also lived with federal, state and local rules that were all passed with the objective of helping employees, protecting the environment, raising tax dollars for schools, protecting our customers from fire hazards, etc. While I never doubted the worthiness of any of these goals, the concept that most often eludes legislators is: `Can we make consumers pay the higher prices for the increased operating costs that accompany public regulation and government reporting requirements with reams of red tape.’ It is a simple concern that is nonetheless often ignored by legislators.”

More recently, McGovern authored a Wall Street Journal Op-Ed opposing the Democratic Congress’s current plan to make it easier for unions to organize workers. His sojourn in the business world changed his perspective to the point where he would no longer fit neatly into either the Republican or Democratic party.

There are plenty of Americans with experience in both law and business. Why shouldn’t we have one of them on the Supreme Court?

8 Comments

  1. John Sequeira

    May 31, 2009 @ 1:13 pm

    1

    I listened to this NPR show about Sonia S.

    http://www.onpointradio.org/2009/05/obamas-supreme-court-pick

    It said she did a stint at a high-powered law firm doing corporate litigation. They also said she will be the only justice who has argued before the Supreme Court … or served as a litigator — I can’t remember which.

  2. George

    June 1, 2009 @ 9:17 am

    2

    This is because when politicians say “diversity”, what they really mean is: diversity == more votes.

    As for George McGovern, now that he has learned his lesson, he should be back in politics applying his real world experience.

  3. Luke McCormick

    June 1, 2009 @ 1:17 pm

    3

    Actually, most of the justices appear to have practiced law privately at some point in their career, the exceptions being Alito and Ginsberg. If your point is that we need representation from people who had the opportunity to lose large amounts of OPM, I suppose a case could be made for that. If that was important, though, you’d think that our recent MBA president would have done something about it. He didn’t, despite having two chances; that suggests that it really doesn’t matter much. Alito, his most recent pick, was on the taxpayer payroll every working day of his career.

  4. Steve

    June 1, 2009 @ 1:35 pm

    4

    I understand your logic and position: a business person on the Supreme Court as being good for diversity. While I admittedly would like to see that, it is important to recognize that the major role of the Court is to interpret the Constitution and resolve conflicts in the interpretation of federal law that may arise as between the various circuits (regions) in the US (by a consideration of Congressional intent and other bits of information that may be used to identify what a given law was intended to be). That being the case, whether it is a male, female, white, black, government worker or business person, it really should not make a difference. In my view, lost in almost every debate about who should be on the Court is some misunderstanding of the role and limits of judicial review. I know you are into flying. In a given situation, should the FAR/AIMs be interpreted differently depending upon the the reader? If the regulations are perceived as not being fair as applied to a given situation, they should be changed by legislation, not by panel review.

  5. philg

    June 1, 2009 @ 7:36 pm

    5

    Folks: I’m not suggesting that Sotomayor is more or less qualified than the current crop of Justices, only that her appointment will not add diversity in a way that would be significant for the resolution of disputes among businesses or where business and government interact. Working for a private law firm is not quite the same as working for a private company. Until the Great Depression of 2008 hit, lawyers could bill hours in both good times (financing documents) and bad times (bankruptcies). GM workers at all levels (including the former CEO) are gone. Partners in GM’s law firms still have jobs, as far as I know (though some associates might have been let go).

    The best thing about this nomination is that it has given us the phrase “wise Latina woman”. It can be used in almost any sentence!

  6. chrismealy

    June 3, 2009 @ 1:53 pm

    6

    Bah, McGovern has a grudge against labor for not backing him in 1972:

    http://www.ourfuture.org/blog-entry/2008083419/mcgovern-mystery

  7. Mike Woods

    June 4, 2009 @ 1:49 am

    7

    >>he did a stint at a high-powered law firm doing corporate litigation
    >>most of the justices appear to have practiced law privately at some point in their career

    To echo Phils comment – practicing in a large law firm and being a business owner are two radically different things — unless you are a managing partner responsible for P/Ls, bringing in business, and covering payroll. Until you’ve felt those pressures, you really don’t understand the real depths of capitalism.

    Just as in flying – while it’s true that theoretically the FAR/AIMS should be read and enforced by any reader, real life is too detailed and nuanced for that. An active experienced pilot will render wise decisions in the gray areas where a non-flying bureaucrat will not.

  8. mike d.

    June 4, 2009 @ 2:52 pm

    8

    diversity. possibly the most overused word in the world today.the country’s in trouble,most clear thinking people want competent problem solvers in positions of power. sotomayor is a dime a dozen lawyer who fits the profile of what the powers that be think is important for this country. this woman is most likely less qualified for this job than dozens of other candidates,but unfortunately for them they don’t fit into the “new world order”.affirmative action disguised as “diversity” possibly. sotomayor has already said things that would have spelled doom for other less “diverse” candidates,but she has the right “look” and these days thats all you need.

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