WORD COUNT 685                                                                                                                                                                            MAY 13, 2008

THE SUPREME COURT AND THE REAL WORLD – Michael Keegan

At a speech this year, Chief Justice John Roberts pointed out that for the first time in history, every single Supreme Court Justice came directly from a federal circuit court.  He argued that this was something to be celebrated, but his appraisal isn’t just suspect; it’s perfectly in line with his aggressively conservative judicial agenda.

 
At his confirmation hearing, Roberts famously compared the job of a judge to that of a baseball umpire. Measure the strike zone, then decide whether the pitches wander beyond it. In his vision, the ideal judge is little more than a technician, coldly dividing the world into balls and strikes.

 
If that’s the case, then there’s no better training for being a judge than ... being a judge. After all, an umpire’s eye only improves with practice, so why not the same for a Chief Justice?

 
But since Roberts has been confirmed to the bench, we’ve seen over and over that his analogy comes up short and that the uniformity of his colleagues’ resumes is a liability.

 
To put things in context, consider the Court under Earl Warren in 1955, when the landmark case Brown v. Board of Education was decided. Warren himself was previously the governor of California. Not only that, but he had actually run for the Republican presidential nomination against Dwight Eisenhower, who later nominated him.  The other Justices at the time consisted of two senators, a solicitor general, a chairman of the Securities and Exchange Commission, an outspoken law professor, and two attorneys general. Only one came to the Court from the federal bench, and he had previously been a senator. The nation benefited mightily as a result.

 
When Brown was argued before the Court, the Justices brought to the table a broad range of experiences and points of view. They understood the implications of segregation and the way it rippled through the nation.

 
Chief Justice Roberts has praised the Brown decision, but it’s hard to square such a bold ruling with the baseball-umpire model that he favors -- and even harder given his shortsighted record on civil rights.

 
Just take a look at the Roberts Court’s recent, and infamous, ruling in Ledbetter v. Goodyear. The facts of the case weren’t in question: Lilly Ledbetter worked at a Goodyear tire plant for almost two decades before being tipped off that she was being paid less than men doing the same work. She sued and won back pay and benefits from a jury.

 
But the company appealed, ultimately to the Supreme Court, where a bare majority (including Roberts) ruled that Ledbetter should receive nothing because she hadn’t sued years earlier. Never mind that Lilly didn’t know that she was being unlawfully underpaid or that every single paycheck she received for 16 years was unlawfully lower than that of her male coworkers. Chief Justice Roberts and four of his fellow Justices essentially said “tough luck.”  

Almost as striking as the decision was the dissent by Ruth Bader Ginsburg – the only female on the court and formerly a public interest lawyer – that blasted the decision in unusually strong terms. She pointed out that, unlike federal judges, most ordinary people don’t know exactly how much their coworkers earn, and that the decision would utterly eviscerate the protections against workplace discrimination.  

For Roberts it was just balls and strikes, but Ginsburg could see beyond that to the real-life consequences of the ruling.  

Now that Justice David Souter is stepping down from the court, President Obama has a crucial choice to make. He must look for an outstanding legal mind with the intellect and training to unravel complicated legal conflicts. But he must also look for a nominee who will broaden the range of life experiences on the court.  
President Obama should look beyond the ranks of federal judges for a nominee and should also look to add diversity on the court in terms of age, race, gender, economic background, etc. 

Cynics may accuse him of playing identity politics, but as the Warren Court made clear, a wide range of backgrounds doesn’t just encourage different decisions, it encourages better ones as well.  

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Michael Keegan is president of People For the American Way, www.pfaw.org

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