Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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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.