The Canard of Judicial Diversity

My ninth grader tried out for the high school soccer team a few weeks back.  And as I watched a practice here and there and wondered who would make the team and who would not, I could not help but think about debates over judicial diversity.

The question is this: how do you choose the eighteen best deserving players to join the team?  Is it the players who best handle the ball?  The ones with the best shot?  Or is it the ones who run fastest, or who hustle on every play?  In a nutshell: who deserves to make the team?

This is not an easy question when talking about putting together a soccer team, and nobody pretends that it is.  Yet somehow we pretend otherwise as soon as we translate this question into debates over racial diversity.  Here is an example, from Curt A. Levey, the executive director of the Committee for Justice:

Diversity is a good thing, but how do you achieve it — by quotas? . . .  Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?  The more you focus on race and gender, . . . the less you’re going to focus on other traditional qualifications — that’s simply the math of it.

This is a canard, plain and simple.  But there is no denying that it is a very effective canard.

What makes a deserving judicial candidate?  This is a very difficult question.  We ought to stop pretending otherwise.

The "New and Improved" -- and make no mistake, just as activist -- Iowa Supreme Court

This week, Iowa Republican Governor Terry Branstad appointed three new members to the state Supreme Court.  From among the nine finalists, the governor selected two state judges and a private attorney.  All were white.  All were male. Notably, these justices are filling the seats vacated by the three justices who were not retained by the Iowa electorate after their controversial ruling on gay marriage.  

To my mind, the biggest question raised by these choices is the complete lack of judicial diversity on the Supreme Court, and what that foretells for the future of the state.  The message is also clear: judicial diversity leads to bad, activist rulings, and when that happens, we must go back to our roots.  To our white, male roots.  

Much can be said about the Governor's choices.  But the one thing that caught my eye was the governor's explanation for his choices: “My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers.” 

These words echo the words of former president George W. Bush, who promised to nominate judges who were "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas." This was, is, and will always be a canard.  This is part of the general mythology to which we have grown accustomed.  What conservative judges do, we call strict constructionism, faithful legal interpretation, and respectful of separation of powers.  In a word, we call it restraint.  Liberal judges, on the other had, are leading us straight to the gates of hell.

This is all so silly yet so powerful at the same time.  If you were crafting a constitutional mythology, I don't think you could do it any better than this.  

Further Thoughts on Sotomayor and her Chicago Visit

If you have paid any attention to reports of Justice Sotomayor's visit to Chicago, you might come away with the impression that the big take-away point from her time there was her advice to students to relax more.   For the record, she did say that.  But she said more.  A lot more.

Sotomayor Comes to Chicago

Justice Sotomayor spoke at the University of Chicago recently, and the first thing that caught my eye was the picture chosen by the University of Chicago to go alongside its news release:

According to David Strauss, professor at the law School and moderator for the event, the justice "has had a remarkable and distinguished legal career as a prosecutor, a lawyer in private practice, and a judge at every level of the federal court system."  And yet, the first question that came to mind when seeing this picture was whether the law school would have invited Justice Sotomayor to join its faculty had she been a candidate.  

What's Wrong with Judicial Diversity?

President Obama is nominating women and minorities to the federal bench in unprecedented numbers. But apparently, not everyone is happy about this newfound commitment to judicial diversity. According to Stephen Presser, professor of legal history at Northwestern, “[w]hen you make law representative of America, you are undermining the objective” of a fair and impartial judiciary. . . . What you’ve got here is the opposite of John Roberts’s notion that judges ought to be umpires." To "send a message of inclusiveness . . . is a dangerous move, and it makes the court more political than it needs to be."

Now, I have been interviewed often enough to know that statements can be taken out of context, words twisted, and who knows what else. And yet, this statement, standing alone, comes off as nothing short of bizarre, particularly coming from a law professor. You don't even have to agree with me that judicial diversity in fact furthers the value of judicial independence in order to find this statement puzzling. Assume that we agree that judicial diversity "make[s] law representative of America"? I would have assumed that this representativeness was a good thing, particularly in light of studies of judicial behavior that posit judges as influenced by myriad factors, including their politics and experience. How would recognizing what judges in fact do undermine in any way the fairness and impartiality of the judiciary?

Worse, I had really thought that Roberts' analogy of judges as umpires was nothing more than a rhetorical device for the moment, aimed at those on the Senate and the public at large predisposed to agree with him. Nobody, I thought -- and I do mean nobody -- with any experience reading cases and studying courts could seriously believe the analogy had any basis in reality.

Clearly, I was wrong.

Finally -- and maybe I am being unfair on reading the statement this way -- but how could sending a message of inclusiveness ever be "a dangerous thing" and make the judiciary "more political than it needs to be"? This is one paper from Professor Presser, defending this conclusion, that I would love to read.

Let me see if I understand: appointing judges in the mold of Alito and Roberts furthers judicial fairness and impartiality, but appointing judges in the mold of Sotomayor and Kagan is "dangerous"?

I am almost speechless.