THERE WAS AN article in the Atlantic magazine recently by Brian Fallon and Christopher Kang, co-founders of the organization Demand Justice. In the article, they argue that too many federal judges have a background as corporate attorneys who, by reason of their career paths, are not in touch with the interests of ordinary Americans.
On the United States Supreme Court, every justice attended Yale or Harvard law schools (although Ruth Bader Ginsburg transferred to Columbia from Harvard). Their work experiences are in academia, private practice with large corporate firms, and/or the federal government.
With the exception of Ginsburg, who handled significant work for the American Civil Liberties Union, there is a lack of public-interest law and actual litigation experience.
I agree with Fallon and Kang that it is time for Presidents to look beyond the current cookie-cutter approach to judicial selections. Whatever party the President may belong to, a diversity of background and legal credentials can only help when justices interpret the law.
It used to be that Republican and Democratic Presidents appointed justices with diverse life experiences.
Justice Sandra Day O’Connor, for example, was a graduate of Stanford Law School. She was a deputy county attorney, worked for the U.S. Army Quartermaster Corps, and then became an Arizona assistant attorney general. A majority leader in the Arizona State Senate, she was elected as a county trial judge and then served on the Arizona state appellate court.
Another example is Thurgood Marshall.
After graduating first in his class at Howard University, he became the head of the NAACP Legal Defense and Educational Fund, winning 29 of 32 cases he argued before the Supreme Court, including the pivotal Brown v. Board of Education.
He then became the U.S. solicitor general, winning 14 of 19 cases before the court.
New Hampshire voters have the opportunity to ask presidential candidates whether they will nominate federal judges who, like O’Connor and Marshall, come from different types of legal backgrounds. We should take advantage of that opportunity.
The Atlantic article caused me to look a little more closely at our own New Hampshire Supreme Court, especially in light of Gov. Chris Sununu’s recent nomination of Attorney General Gordon MacDonald to be chief justice of the court.
Like three of the four current New Hampshire justices, MacDonald spent most of his career in a large (by New Hampshire standards) corporate firm.
Only one of the current justices, Patrick Donovan, spent significant time in a small firm. Although he did work at a big Boston firm, he also worked as a prosecutor before operating his own private practice for 18 years. That practice included a cross section of legal matters, civil as well as criminal, for clients who likely were not as well heeled as the typical large-firm client.
MacDonald also had no prior Superior Court experience, which would have meant that only one of the five justices, Gary Hicks, had presided over a trial court.
Sitting on the New Hampshire Superior Court exposes a judge, whatever their prior background, to a cross section of legal matters: business disputes, criminal cases, boundary arguments between neighbors, efforts to stop residential foreclosures, and more.
They get to see the real-world impact of the law on everyday New Hampshire citizens, rich, poor or in between.
When and if the governor ever gets around to nominating a new chief justice, he should consider looking outside the usual mold, or for someone with Superior Court experience.
Diversity does not mean sacrificing quality, and there are many smart, talented attorneys and judges in New Hampshire who could provide the benefit of their experiences to the New Hampshire courts.
Kathy Sullivan is the former chairman of the New Hampshire Democratic Party.