Let us grant that Elena Kagan is well qualified by intellect, temperament, experience, and judicial philosophy to serve on the Supreme Court. By any fair application of confirmation precedent, she easily deserves to be confirmed.
But her nomination continues a trend – the near elimination of the Court’s geographical diversity — that I fear will, over time, leave the Supreme Court more open to challenge when it makes decisions vindicating the rights of unpopular minorities. With the addition of soon-to-be-Justice Kagan, and the exception of Justice Anthony Kennedy, the Court will consist entirely of justices who spent the vast bulk of their legal careers in the three metropolitan areas served by the US Air and Delta Shuttles: Washington, New York and Boston, with seven justices (all but Kennedy and Sotomayor) serving long stints in Washington government service, and a majority (Scalia, Ginsburg, Sotomayor, Alito and Kagan) raised in or around New York City. This contrasts with the Warren Court, for example, which in its halcyon days included a former Governor of California (Earl Warren), a former Senator from Alabama (Hugo Black), an All-American from Colorado (Byron White), and the former Vice-Mayor of Cincinnati (Potter Stewart), just to name a few.
The continuing “Northeasternerification” of the Supreme Court clearly was not a conscious decision by President Obama or his predecessors. Instead, it is the result of what noted economist Alfred Kahn called “the tyranny of small decisions” in which a series of relatively small decisions (here individual nominations, in the case of Sotomayor and Kagan based on legitimate considerations and superb qualifications) collectively leads to a less-than-ideal result, a Supreme Court markedly lacking in geographical diversity.
My concern is that this lack of geographical diversity will be used by critics to attack Court decisions protecting individual rights and liberties. When the Supreme Court strikes down government action undertaken by duly elected officials – e.g., striking down a law than infringes on freedom of speech, banning official public school prayer, or preventing the Executive Branch from indefinitely detaining a terror suspect without trial – it is acting as a quintessentially anti-democratic, or countermajoritarian, institution. The public accepts unpopular decisions because of faith in the Constitution and in the legitimacy of the Court as an institution. It is this public faith in the Court that may be undermined to some degree by the Court’s lack of geographical diversity.
Suppose, for example, that the Olson/Boies challenge to the California anti-gay marriage initiative is successful and the initiative is struck down by the Supreme Court. It is all too likely that critics of such a decision would question why a Court consisting almost exclusively of Northeasterners should be permitted to impose their views (albeit constitutionally-determined) on the rest of the Nation.
It may be argued that because of modern transportation and technology, geographic diversity is less important than it used to be. But in an era of popular dissatisfaction with Washington and Wall Street, it would be a mistake to assume that geographic considerations are unimportant.
Indeed, expect Senate Republicans eager for political gain in the South and the West to make noise about the lack of geographic diversity in Kagan’s upcoming confirmation hearings. The Obama campaign was politically astute when they held the 2008 Democratic Convention in Denver, the center of the increasingly purple Rocky Mountain West. For the Court’s sake, let us hope that this astuteness is brought to bear if and when President Obama gets to make a third Supreme Court nomination.