CHAPTER 24 THE FEDERAL COURT SYSTEM:JUDGING CASES 571 THE SOCIAL CHARACTERISTICS OF FEDERAL JUSTICES AND JUDGES Although the judiciary is a branch of the U.S.system of had served.At least one Catholic,but at most times only representative government,it is hardly demographically one,has been on the Court almost continuously for nearly representative of the public it serves.White males are a century.Thurgood Marshall in 1967 became the first greatly overrepresented on the courts,just as they domi- black justice,and Sandra Day O'Connor in 1981 became nate Congress.In a study of appellate judges who served the first woman.Antonin Scalia in 1986 became the from 1933 to 1976,for example,John Schmidhauser Court's first justice of Italian descent.No person of found that fewer than 5 percent were women or members Hispanic or Asian descent has ever been a-member of the of minority groups.When Jimmy Carter became president Court. in 1977,he was determined to appoint more women and The judicial scholar Henry J.Abraham has dismissed blacks to the courts.Women totaled 20 percent of his concerns about the Court's demographic makeup,saying appointees and blacks 16 percent-numerically,twice as that the Court was never meant to be a representative many as had been appointed by all previous presidents. body.Another scholar,Sheldon Goldman,disagrees, Ronald Reagan was more concerned with nominees' saying that "the best bench may be composed of persons ideology than with their race or sex.Nevertheless,women of all races and both sexes with diverse backgrounds and and blacks accounted for only 10 percent of his appoint- experiences."Goldman argues that the judiciary's sensi- ees.Reagan did seek younger people for the federal tivity to society's diverse interests depends to a degree on courts,knowing that such individuals are more likely to the social backgrounds that the justices bring with them to remain on the bench for many years,thus prolonging their the Court influence on the law.Reagan's judicial appointees aver- aged about forty-five years of age,compared with the souRcEs:John Schmidhauser,Judges and Justices:The Federal previous average of more than fifty years. Appellate Judiciary (Boston:Little,Brown,1978),ch.3;Henry J. Justices of the Supreme Court have been overwhelm- Abraham,"The Judicial Function under the Constitution,"News for Teachers of Political Science 41 (Spring 1984):14;Sheldon ingly white,male,and Protestant.Until 1916,when Louis Goldman,"Should There Be Affirmative Action for the Judici- D.Brandeis was appointed to the Court,no Jewish justice ary?"Judicature 62 (May 1979);494. No such thoroughgoing reform has taken place at the federal level,although Jimmy Carter used selection panels to compile lists of five candidates to fill appellate-court vacancies on the basis of merit.Carter selected from among these candidates,although he nearly always picked a Democrat.Carter's merit system was opposed by some senators,who believed that it reduced their influence on the selection process.Reagan returned to the earlier system after taking office in 1981.22 Increasing numbers of federal justices and judges have had prior judicial experience;the assumption is that such individuals are better qualified for +ANALYZ定H正ISSUE appointment to the federal bench.Elective office(particularly a seat in the U.S. Appointing Justices:Merit Senate)was once the typical route to the Supreme Court,23 but now most or Politics? justices have held an appellate-court judgeship or high administrative office in The Supreme Court has had the Justice Department before their appointment(see Table 24-1).In addition, a few great jurists,such as Holmes and Cardozo,and most recent appellate-court appointees have been district or state judges or have many mediocre ones.Should worked in the office of the attorney general.24 merit be a larger consideration in 2Abraham,"Judicial Function under the Constitution,"12. appointments to the Court,or Joseph B.Harris,The Advice and Consent of the Senate(Berkeley:University of California Press, is it more important that 1953),313. justices be chosen on the 2John Schmidhauser,Judges and Justices:The Federal Appellate Judiciary (Boston:Little,Brown, basis of their policy views? 1979),84-85