Is Justice “Diverse”? Release 2.0…

A little over a week ago, discussing a report from a liberal organization at a liberal law school lamenting the lack of “diversity” among state court judges, I asked, “Is Justice ‘Diverse’?.” Today this long article in the Sioux Falls, South Dakota, Argus prompts me to return to that question, if for no other reason than this revealing introductory non-sequitur:

In a state where more than 8 percent of the citizens and 25 percent of the male prison population are Native American, many are watching as Gov. Mike Rounds prepares to appoint a new justice to the Supreme Court.

Currently the only “diversity” on the South Dakota is provided by one circuit court judge.

Judge Tony Portra of Aberdeen is one-eighth Turtle Mountain Chippewa.

There is no official data on the race or ethnicity of the 38 circuit judges in South Dakota, or the five members of the state’s Supreme Court, but it appears Portra is the only one with a minority background.

Let’s leave it to the sociologists, anthropologists, and psychologists to deal with the question of how much and what sort of “minority background” is supplied by being one-eighth something or other. (There are probably many ways to be one-eighth something, but the one that I could figure out quickly [if indeed I figured correctly] is being descended from one great-great-grandparent of the category in question.) Still, if this is “diversity,” it must be pretty diluted at this level.

Since Judge Portra is all we have, let’s give him pride of place and listen to what he says.

Portra said few defendants standing before him know he is part Chippewa. To the extent that he treats everyone equally, that’s probably good, he said. But a judiciary that more closely mirrors the population it serves would be good, too, he said.

“People want a president who looks like them. They want Congress to represent the nation at large, too,” he said. “I don’t see why you wouldn’t want the judiciary to be the same. I don’t think the public wants a judiciary to be all white, or all black, or all Native American. But they want it to mirror them. It certainly would help the perception of fairness here in South Dakota.”

To the extent that he treats people equally? Does that mean that to some “extent” he doesn’t? If so, shouldn’t he be called to explain himself to whatever body in South Dakota that oversees judicial behavior?

If it were really true that “people who want a president who looks like them,” Barack Obama wouldn’t be president. But this “look like” argument is part of one of the two reasons Judge Portra offers for why the bench should be “diverse.” First, he says the bench should “mirror” the population it serves. But if that’s the case, then no judges in South Dakota (including him) should be elected; they should be appointed to fill designated population slots.

O.K., diversicrats will say at this point, the Supreme Court justices are appointed! Why not ensure “diversity” there? Well, one reason is that it would be difficult.

Since 1993, only 26 graduates from the USD School of Law listed themselves as Native Americans, said Associate Dean Tom Sorensen, and it’s difficult to say how many of them remain in the state.

But another reason is that it’s impossible. There are only five justices on the South Dakota Supreme Court. If one of those justices, i.e., 20% of the Court, were Native American, the 8% of South Dakota’s population that is Native American would be vastly over-represented. And what of the .9% of South Dakotans who are black and the 2% who are Hispanic? Don’t they deserve to be “mirrored” as well? Not to mention the 88% of South Dakotans who are white and, if Judge Portra is to be believed, must also want Supreme Court justices “who look like them.” Mirroring the population, in short, is not only difficult; it’s impossible.

But even if population mirroring were possible, it still would be objectionable. As I noted in my previous post on this subject,

“Diversity,” keep in mind, is justified by its proponents because “diverse” individuals are different in important, relevant ways from individuals who are not “diverse” — that’s why the latter need to be exposed to the former. But do we really want to institute what amounts to a quota system for judges based on the assumption that the quality and nature of the justice they dispense will vary based on their race, ethnicity, or sex? Without that assumption, however, what is the justification for “diversity” on the bench?

There is, however, another argument, though one that is no more appealing. Judge Portra’s second argument for a “diverse” bench is also a popular one: perception. Chief Justice David Gilbertson created the 11-member Equal Justice Commission in 2004, even though he knew that “the few studies that had been done revealed no inherent discrimination in areas such as sentencing.”

Still, to people such as commission co-chairman John Konenkamp, himself a Supreme Court justice, there had to be a better way to respond to the overrepresentation of Native Americans in the system when they account for only 8 percent of the state’s population.

“The only thing the studies have said loud and clear is, ‘there’s a disproportionate number of native people in the penitentiary,’” Konenkamp said. “They are not able to ascribe racism as the reason for it….

Perception, in short, rules. “Three years ago, the Equal Justice Commission … told the governor that [increasing “diversity” among state judges] would fight the perception of bias in the system among minorities.” The governor’s response:

“I think … it is an acknowledgement of what is pretty decent, common-sense advice,” Rounds said of the commission recommendation. “But I choose the person who I think would be the best judge, not the person who will get me an accolade for having done something different or unique.”

Among the diversiphiles, however, colorblind justice creates the impression of, and hence is, biased and unfair. According to Jeff Larson, a public defender, “The important thing is, perception is reality.”

But wait a minute. If “perception is reality,” then if a significant proportion of South Dakota’s population (I could say strong majority, but don’t really need to for this point) believes that imposing “diversity” is little more than quota-mongering, leading to the advancement of less qualified candidates over more qualified candidates, isn’t that perception, by diversiphile definition, “reality”?

Say What?