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Merrick Garland Doesn’t Pass Scalia’s Diversity Test

President Obama’s nominee to the Supreme Court, Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, doesn’t pass the test for diversity put forward by the justice he’s replacing, Antonin Scalia. And not because Garland would be another white man on the court.

In Scalia’s 2015 dissent to Obergefell v. Hodges, he laid out a somewhat tongue-in-cheek indictment of the demographics of the Supreme Court: The justices aren’t representative enough of America to have a right to make law (as Scalia felt his fellow justices were trying to do).

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Scalia complained that the court consisted only of Harvard- or Yale-educated lawyers, that all but one justice grew up in coastal states, and that none was an evangelical Christian or Protestant. (All the justices were either Catholic or Jewish.) When I took a look at the demographics of federal appeals courts (a frequent source of Supreme Court nominees) last month, not many could meet Scalia’s standard — and Garland manages to pass only one of these three tests.

ATTRIBUTE GARLAND SHARE OF CIRCUIT COURT JUDGES
Educated at Harvard or Yale Law 26%
Raised on a coast 54
Jewish or Catholic N/A

Circuit court judges declined to provide religious affiliation when contacted

Garland grew up in Lincolnwood, Illinois, about 10 miles north of Chicago, satisfying Scalia’s call for someone from the “vast expanse in-between” the coasts, but as a graduate of both Harvard and Harvard Law School, Garland wouldn’t expand the court’s educational backgrounds. He is Jewish, so adding him would split the court 5-4 between Catholics and Jews, with still nary a Protestant (evangelical or otherwise) to represent that 47 percent of the country.

Leah Libresco is a former news writer for FiveThirtyEight.

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