THE NORM OF PRIOR JUDICIAL EXPERIENCE AND ITS CONSEQUENCES
FOR CAREER DIVERSITY ON THE U.S. SUPREME COURT
Published in 2003. California Law Review 91:903-966.
Lee Epstein
Jack Knight
Andrew D. Martin
For at least three decades now, those charged with nominating and
confirming justices to the U.S. Supreme Court seem to be
following a norm of prior judicial experience—one that
makes previous service on the (federal) bench a near prerequisite
for office. Largely as a result of this norm, today’s
Court, while growing more and more diverse on some dimensions, is
becoming less and less so on the dimension of career
diversity.
We argue that all norms that cut against diversity are
problematic because they reduce the ability of the affected group
(the Supreme Court not excepted) to perform its tasks but that
the norm of prior judicial experience is particularly troublesome
for two reasons. First, since virtually all analyses show
occupational path to be an important factor in explaining
judicial choices—from the votes justices cast to their
respect for stare decisis—the homogeneity induced by the
norm suggests that the current Court is not making optimal
choices. Second, since women and people of color are less likely
than white men to hold positions that are now, under the norm of
prior judicial experience, steppingstones to the bench, the norm
is working to limit diversity on dimensions other than
occupational path.
To explore our argument, we draw on diverse sources—ranging
from an original database that houses a wealth of information of
the occupational backgrounds of the justices to the writings of
leading contemporary thinkers. From this exploration, we extract
a singular but certainly non-trivial policy implication: Because
of problems associated with a perpetuation of the norm of prior
judicial experience, we believe that the Senate, the President
and other key players in the confirmation process would be well
advised to give greater attention to the career experiences of
those they would like to see serve on the Nation’s highest
Court. But such attention ought not come in the form of reserving
the next two, three, or four vacancies for nominees hailing
directly from private practice, legislatures, the cabinet, and so
on. Rather it should come about by taking into account the career
experiences of justices remaining on the Court and, then, working
to avoid excessive duplication.
Click here
for the article (.pdf).
Click here
for the data we used in the article.