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