by Robert Schlesinger

We live in an age of generalization. The Internet has made everyone their own travel agent, investment banker, weather forecaster. You can use it to self-diagnose health problems. Don't like the news? You can be your own editor, writer, and pundit. Specialization and professionalization are so last century.

But one area of public life has become the realm of a narrower and narrower group. The U.S. Supreme Court, historically a mix of professional backgrounds, has become an appellate judges-only club. Former constitutional law professor Barack Obama noted this in his run for the presidency. He should start to correct it with his next court selection, after failing to do so with Sonia Sotomayor, who came from the federal appeals court.

The current court is striking in its uniformity of professional experience. All nine justices were elevated from the federal appeals court, a historical first. Northwestern Law School-educated John Paul Stevens is retiring, leaving seven Harvard or Yale Law graduates and Ruth Bader Ginsburg, who started at Harvard Law before graduating from Columbia Law.

Perhaps most strikingly, for the first time in U.S. history, none of the high court's members has ever had any kind of federal, state, or local legislative experience, or even run for office.

There used to be numerous routes to the big bench. Cabinet members like Robert Jackson (attorney general before serving as chief U.S. prosecutor at Nuremberg) donned the black robes, as did law professors like Felix Frankfurter, and private practice lawyers like Louis Brandeis, nicknamed "the people's attorney" for his habit of taking on public interest cases. There were former senators like Hugo Black, former governors like Earl Warren, and even one former president, William Howard Taft. In all, 91 of the country's 111 justices have had state or federal political experience, though none since former Arizona state Senate Majority Leader Sandra Day O'Connor retired.

Dwight Eisenhower started the trend toward relying on appellate justices after he became disenchanted with Warren, his first nominee, says Northwestern University Supreme Court expert Lee Epstein. Ike wasn't alone. The Warren Court's so called activism, starting with Brown v. Board of Education, made judicial ideology a critical political issue, especially on the right. This conservative backlash was formalized in the early 1980s with the Reagan administration and the founding of the Federalist Society, a conservative legal and scholarly group. Through the society and the administration's judicial appointments, the right tried to systematically "seed the lower federal judiciary" with conservatives, as a 2006 New York Times article noted. Those seeds blossomed into the current crop of conservative federal judges. The Federalist Society has "become the equivalent of a political party for judges," says Princeton University professor Christopher Eisgruber, a former Stevens clerk who wrote a book on the appointment process. A nominee with the Federalist imprimatur will be reliably conservative.

That's helpful for presidents because since Robert Bork's failed 1987 confirmation, nominees have adopted a bland dialect of judicialese, avoiding controversial pronouncements while insisting that they bring no ideology to their decisions. As every post-Bork nominee has been a federal appeals judge, they have cloaked themselves in the public perception that they are, in Chief Justice Roberts's memorable phrase, merely umpires calling balls and strikes.

Hence the appellate appeal to a president: a nominee who has already been through Senate confirmation once, and whose judge's robes give a cloak of impartiality, even if, thanks to the growing judicial-political complex, the president is sure of the nominee's philosophy.

But the image of Supreme Court justice as umpire is fiction. Cases that are as simple as calling balls and strikes don't make it to the high court. Instead what this judicial gerrymandering has left us with is a polarized court that produces 5-4 decisions which please the conservative ivory tower but have troubling real world consequences.

One way to start stemming that tide is bringing professional diversity back, and with it real world experience. O'Connor, for example, "certainly brought a sense and an understanding of where the public was and how far the court could move away from that," says Epstein.

In January's Citizens United v. Federal Election Commissionthe court's five conservative justices found that corporations have a First Amendment right to spend unlimited sums of their money on political ads without fear that it could have a detrimental effect on politics. Might it not have helped to have someone with actual political experience considering the case?

A February ABC News poll found 80 percent of Americans disagreed with the decision. Such disconnects threaten to leave the public as a Seinfeld-ian "Bubble Boy," helplessly fulminating as a narrow majority rule that the "Moops" invaded Spain in the 8th Century. A disconnected Supreme Court is bad for our political system. "The court does run into problems," Epstein says, "when it gets too far afield, [when it] gets way ahead of the public."

A few non-judges have reportedly made Obama's short list, including Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, and Minnesota Sen. Amy Klobuchar. Secretary of State Hillary Clinton's name surfaced but was quickly shot down, a trial balloon that missed perhaps the best choice in terms of political skills, smarts, and, well, spectacle. But I suppose Justice William J. Clinton is too much to hope for.


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