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The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court

Publication ,  Journal Article
Epstein, L; Knight, J; Martin, AD
Published in: California Law Review
2003

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 decision-making group (the Supreme Court not excepted) to perform its tasks. We further argue that the norm of prior judicial experience is particularly troublesome for two reasons. First, since virtually all analyses show career 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 also working to limit diversity on dimensions other than career path. This Article draws on multiple sources, ranging from an original database that houses a wealth of information on the occupational backgrounds of the Court's Justices to the writings of leading contemporary thinkers. From these sources, we extract a clear and significant policy implication: Because of problems associated with a perpetuation of the norm of prior judicial experience, we argue that the Senate, the president, and other key players in the confirmation process should give greater attention to the nominees' career experiences. 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.

Duke Scholars

Published In

California Law Review

DOI

ISSN

0008-1221

Publication Date

2003

Volume

91

Issue

4

Start / End Page

903 / 965

Related Subject Headings

  • Law
  • 4807 Public law
  • 4806 Private law and civil obligations
  • 4804 Law in context
  • 1801 Law
 

Citation

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ICMJE
MLA
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Epstein, L., Knight, J., & Martin, A. D. (2003). The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court. California Law Review, 91(4), 903–965. https://doi.org/10.2307/3481406
Epstein, L., J. Knight, and A. D. Martin. “The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court.” California Law Review 91, no. 4 (2003): 903–65. https://doi.org/10.2307/3481406.
Epstein L, Knight J, Martin AD. The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court. California Law Review. 2003;91(4):903–65.
Epstein, L., et al. “The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court.” California Law Review, vol. 91, no. 4, 2003, pp. 903–65. Manual, doi:10.2307/3481406.
Epstein L, Knight J, Martin AD. The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court. California Law Review. 2003;91(4):903–965.

Published In

California Law Review

DOI

ISSN

0008-1221

Publication Date

2003

Volume

91

Issue

4

Start / End Page

903 / 965

Related Subject Headings

  • Law
  • 4807 Public law
  • 4806 Private law and civil obligations
  • 4804 Law in context
  • 1801 Law