Supreme Court leans heavily on Boston-Washington axis; will Obama pick go outside I-95?

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I-95 high court in need of some regional diversity

WASHINGTON — Forget liberal vs. conservative justices. The Supreme Court is way out of regional alignment: It’s heavily tilted toward the Northeast corridor and could become even more so as President Barack Obama prepares to fill an upcoming vacancy.

Five of the nine justices have strong ties to Boston, New York and central New Jersey. Chief Justice John Roberts is a Midwesterner raised in Indiana, but he went to college and law school at Harvard and has spent his entire professional life in Washington.

Even Justice Clarence Thomas, who stresses his Georgia roots, has lived and worked in Washington since 1983.

Eight justices have Ivy League law degrees, which explains this joking response when a law student asked Roberts if too many justices came from elite schools. No, the chief justice said, “Some went to Yale.” The only non-Ivy Leaguer, Justice John Paul Stevens, is leaving the court at the end of this term; he graduated from Northwestern.

At least three of the known, serious candidates to replace Chicago native Stevens fit the Northeastern profile: Solicitor General Elena Kagan, appeals court Judge Merrick Garland and Harvard Law School’s dean, Martha Minow. Garland and Minow were born in Chicago. But, unlike Stevens, they studied, worked and lived on the East Coast as adults.

Not since the Allegheny Mountains (ranging through Pennsylvania, Maryland, West Virginia, and Virginia) were the western frontier of the newly created United States has the high court’s membership been so concentrated.

Diversity on the court often is measured by gender, ethnicity, religion and race, and the current candidates are being assessed by those measures. But there could be some value, both in the politics of the nomination and a familiarity with issues a new justice might bring, in choosing someone who lives far from Interstate 95, the principal north-south route along the Eastern Seaboard.

“The impetus to appoint someone from the West is a really good one. Geographical diversity is important on the court. Do you really want water rights issues decided by people from Amtrak’s Northeast corridor?” said Roy Englert, a Harvard-educated Washington lawyer who argues regularly in front of the Supreme Court.

Two Westerners and two from the Midwest are on Obama’s list. Homeland Security Secretary Janet Napolitano was Arizona’s governor and appeals court Judge Sidney Thomas is from Montana.

Appeals court Judge Diane Wood lives and works in Chicago, and brings her University of Texas law degree to the diversity scale. Michigan Gov. Jennifer Granholm, though a Harvard graduate, was born in Canada.

Former Georgia Supreme Court Justice Leah Sears is the only person on Obama’s list who lives in the South.

Lucas A. “Scot” Powe Jr., a Texas law professor, said he would prefer that Obama select someone who hasn’t been a judge — all nine justices were federal appeals court judges — rather than worry too much about geography.

Yet Powe said he believes that the late Chief Justice William Rehnquist and retired Justice Sandra Day O’Connor, who both lived in Arizona before coming to Washington, displayed their Western influence in some decisions that gave power to the states at the expense of Congress.

“As a Westerner who’s lived in the East several times in my life, I know attitudes are just different in the West,” said Powe. “There’s more of an optimism, more of a willingness to move, although there’s a greater attachment to the land.”

Lee Epstein, a Northwestern University law professor, has begun to look at whether there’s any correlation between geography and voting patterns in Supreme Court cases. Her research is at a preliminary stage.

Should anyone care about this? “I don’t know,” Epstein said. “But in one sense, it’s curious that the president doesn’t think about this more or that the Senate doesn’t think about this more. Senators have constituent interests.”

When President Franklin Delano Roosevelt chose Iowa federal judge and Kentucky-born Wiley Rutledge for the court in 1943, the nominee wondered how the president settled on him, said retired University of Virginia professor Henry J. Abraham, author of a book on Supreme Court appointments.

“FDR said, ‘Wiley, you’ve got geography,’” Abraham said.

President Richard Nixon probably was the last chief executive to weigh regional interests, having nominated three Southerners to the court, Epstein said. The Senate rejected Judges Clement F. Haynsworth Jr. of South Carolina and G. Harrold Carswell, who was born in Georgia, and later confirmed Justice Lewis Powell of Virginia

Three justices on the current court were born or raised in New York City — Brooklyn-born Ruth Bader Ginsburg; Antonin Scalia, raised in Queens; and Bronx native Sonia Sotomayor.

Manhattan-born Kagan would make four, but Obama could make the case for a certain geographical diversity all the same. Of the city’s five boroughs, only Staten Island would be unrepresented.