Obama Moves To Diversify Federal Judiciary. Why?

[NOTE:  March 7. Thanks to Roger Clegg for his generous pointers on National Review Online.

[NOTE : March 8. And to Howard Bashman for his pointers and links on his excellent blog, How Appealing.]

I have a letter in the Washington Post Thursday (March 7) criticizing the White House’s desire to “change the face” of the judiciary and its rather astounding belief that “Diversity in and of itself is a thing that is strengthening the judicial system.”

Following is a longer version of what I had been about to post before sending the abbreviated version to the Post.

“In Florida,” the Washington Post reports,

President Obama has nominated the first openly gay black man to sit on a federal district court. In New York, he has nominated the first Asian American lesbian. And his pick for the U.S. Court of Appeals for the D.C. Circuit? The first South Asian.

Reelected with strong support from women, ethnic minorities and gays, Obama is moving quickly to change the face of the federal judiciary.…

The new wave of nominations is part of an effort by Obama to … [make] the court system more closely resemble the changing society it governs, administration officials said.

“Diversity in and of itself is a thing that is strengthening the judicial system,” White House Counsel Kathryn Ruemmler said. “It enhances the bench and the performance of the bench and the quality of the discussion . . . to have different perspectives, different life experiences, different professional experiences, coming from a different station in life, if you will.”

The White House legal counsel appears not to know, or perhaps simply not to care, that promoting “diversity in and of itself” has been declared unconstitutional time and time again by the Supreme Court.

  • In his controlling opinion in Bakke Justice Powell wrote that preferential treatment “for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.”
  • In her majority opinion in City of Richmond v. Croson, Justice O’Connor endorsed Justice Powell’s opinion in Bakke that “[t]he desire to have more black medical students or doctors, standing alone, was not merely insufficiently compelling to justify a racial classification, it was ‘discrimination for its own sake,’ forbidden by the Constitution.”
  • In his majority opinion in Freeman v. Pitts, Justice Kennedy wrote that “[r]acial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation.”
  • In her majority opinion in Grutter, Justice O’Connor wrote that attempting to assure the representation of a specified percentage of members of various groups based on race or ethnicity would amount to “outright racial balancing, which is patently unconstitutional.”

The only sufficient justification for the race-conscious admissions and hiring at the core of promoting “diversity,” in short, gives no weight to what diversity is but only what it does — provide, according to its justifiers, a valid enough proxy for differences in experience, culture, attitude, whatever, where the presence of those differences is thought to be essential to the mission of the institution. As Justice O’Connor wrote for the Court  in Grutter  (quoting Freeman v. Pitts), the concept of diversity that the Court approved “is not to be achieved for its own sake” but rather “is defined by reference to the educational benefits that diversity is designed to produce.”

But “the federal judiciary” is not a college campus where exposure to “difference” can, so the theory goes, produce “educational benefits.” The  courtroom is not a classroom. Its purpose is to produce justice, not learning supposedly enriched by a kaleidoscope of different multicultural perspectives. What judicial benefits does the president intend to produce by attempting to “change the face” (and presumably the aggregate sexual preferences) of the federal judiciary? Will the nature of the justice dispensed by a judge who is an openly gay black man, an Asian American lesbian, or a south Asian be different, much less better, because of his or her race, ethnicity, or sexual preference?

Should the judiciary reflect the race, ethnicity, and sexual preferences of the population? If not, why not? What about sources of identity other than the holy trinity of race, sex, and ethnicity? With his overriding concern for “diversity,” shouldn’t the president be concerned with the drastic “underrepresentation” not only of Asians but also of Protestants, Southerners, and probably gun owners on the Supreme Court?  Who, moreover, gets to decide who represents whom? Does Justice Sotomayor, a New Yorker whose background is Puerto Rican, “resemble” Mexican-American males from California or Cuban-Americans from Miami closely enough to represent them adequately? (And while we’re at it, where are those “wise Latina” opinions she posited?)

It is hard, perhaps impossible, to exaggerate the extent and perversity of this administration’s devotion to “diversity.” The president, according to White House Counsel Ruemmler, clearly believes it trumps everything. “‘There’s a leveling-the-playing-field goal that is kind of a frame that overrides the whole endeavor,’ Ruemmler, who oversees the nominating process, said in an interview.”

The fact that race, ethnicity, or sexual preference should not disqualify anyone from service on the federal bench does not mean they should be qualifications or even “plus factors” for that service. Unless, that is, we now want Justice not to be blind but to be seen through race-, ethnicity-, and sex-tinted lenses.

Say What? (10)

  1. Michael March 8, 2013 at 8:27 am | | Reply

    There is a major fallacy to your argument, which can be understood by first looking at the effect of discrimination. When classes of society are excluded from the judiciary (no minorities, no gays, etc.), we exclude qualified individuals from those classes, and as a result, less qualified individuals from the non-excluded classes are selected instead. When we stop discriminating, and selection is made based solely on consideration of merit, the formerly excluded classes of society will be represented in the judiciary, and to use the word that is popular now, the judiciary becomes more diverse.

    One of the benefits of diversity is that described by Ms. Ruemmler. Think of it as a by-product, a gain to society from the elimination of discrimination.

    The fallacy in your article is that you attribute the benefit described by Ms. Ruemmler as the underlying reason for the administration’s nomination of the candidates in question. Your fallacious reasoning can be expressed as follows: “Since an administration official says that diversity by itself benefits the judiciary, that is the reason that these minority candidates were nominated.”

  2. Joshua March 8, 2013 at 1:21 pm | | Reply


    I believe you are assuming that the administration is only using sheer merit in making its nominations. I know for a fact that certain candidates have been ignored because they were not the correct gender. For instance, State Bar assessments ranking two male candidates higher than a female candidate, but the administration opted for the third-best pick. That is not merit selection with diversity being a by-product. That is placing a thumb on the scale for diversity’s sake.

  3. Cobra March 9, 2013 at 11:52 am | | Reply

    What “thumb” was placed on the scale when only White Males were considered?


  4. Joshua March 9, 2013 at 2:49 pm | | Reply

    That was very likely racism an sexism. That was indefensible. I assume your point is that this now makes up for those many decades/two wrongs will make things right?

  5. Cobra March 11, 2013 at 4:24 pm | | Reply

    Joshua writes:

    That was very likely racism an sexism. That was indefensible. I assume your point is that this now makes up for those many decades/two wrongs will make things right?

    Your question assumes that there is only one thumb placed on a scale at any given time. When you’ve demonstrably proven to me that racism and sexism no longer exists in American society, we can discuss the merits of repealing diversity legislation and programs.


  6. Joshua March 12, 2013 at 3:50 pm | | Reply


    I see, individual citizens should have to prove that SOCIETY no longer discriminates based on either racism or sexism before the GOVERNMENT should stop doing the same thing to correct for those societal problems. I guess that’s too bad for the individual candidate who actually does have better merits than other candidates, but doesn’t fit your racial or gender preferences.

    Incidentally, I never talked about “repealing diversity legislation and programs.” All I implied was that when the President prefers judicial candidates because of either of those factors, that is just as wrong. This is not “diversity legislation” or a governmental “program” that we’re discussing. This is a government official essentially saying that some races and (perhaps multiple) gender(s) will be plus factors, while those who do not fit that discription will not be given the same consideration.

  7. Cobra March 12, 2013 at 9:18 pm | | Reply

    Joshua writes:

    “Incidentally, I never talked about “repealing diversity legislation and programs.”

    Interesting choice of blogs to comment on then, as “Discriminations” has been “Anti-Diversity Legislation Central” on the internet, attracting nationally recognized “race warriors” like Roger Clegg, Jennifer Gratz, Steve Sailor and others to vigorously wave their flags for rolling back the clock on progress. If you don’t believe me, avail yourself of the Archives, come back, and tell me that I’m lying to you.


  8. Joshua March 12, 2013 at 10:41 pm | | Reply

    The bottom line is that I never advocated for anything other than my implying that the President should not use either race or sex as “plus factors” in his endeavor to actually appoint the best-qualified judges.

    It’s also insulting to assume that a reader agrees with the general propositions of everything he reads. Plenty of intellectuals in the McCarthy era turned books backwards on their shelves based on such assumptions.

    Good times.

  9. Cobra March 13, 2013 at 11:24 pm | | Reply

    What factors determine “best qualified judges?” in your mind, given the overwhelming precedence of American History before you?


  10. Joshua March 14, 2013 at 10:34 am | | Reply

    Probably education, professional experience, general background and familiarity with the community where they will be presiding. I’m not saying that personal background is impermissible to consider in all contexts. That would be ridiculous. But using race and/or gender for its own sake is too blunt of a method. For instance, the “South Asian” nominee who keeps getting mentioned. He’s just a terrific appellate lawyer. I believe he’s worked at the DOJ in both Republican and Democratic administrations, clerked for a Supreme Court justice, argued before many different courts around the country–including the Supreme Court and en banc panels of the circuit courts of appeals. The fact that he’s being touted as a “South Asian” nominee is simply pandering and should be viewed as an insult. His nomination stems from one thing and one thing only: merit as evidenced by his past work, education, and experience.

    Oh, and ABA ratings are usually a good gauge of these aforementioned qualities. I will admit, though, that they are often-times biased against qualified conservative nominees. See, e.g., ABA rating of now-Chief Judge Kozinski.

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