2012 Puts Judicial Diversity In Spotlight

SupremeCourtChamber As the president and potential rivals bicker about the economy, there's another 2012 debate unfolding just below the national radar: how the next commander-in-chief will handle judicial nominations.

And this question only becomes more important as three Justices draw closer to retirement age and the possibility that California's Proposition 8 heads to the Supreme Court.

Jockeying for right wing support, Mitt Romney this week signaled that he'll toe the ideological line by assembling a group of judicial advisers that includes reliably conservative former judge Robert Bork and George W. Bush's former ambassador to the Vatican, Mary Ann Glendon, a fierce anti-abortion activist.

Most of the other Republican candidates, meanwhile, have made it clear at some point or another that they oppose "activist judges" who could rule in favor of LGBT and other progressive rights. Those candidates, without a shred of irony, also vow to install their own reliably conservative judges.

And President Obama's judicial leanings are also getting attention, especially since he recently nominated his fourth openly gay federal judge.

Though only 97 of the president's nominees have been confirmed — far less that Bush and Clinton's respective total two-term confirmations,  322 and 372 –  his roster is still the most diverse in terms of race, gender and sexuality. This, of course, sets the stage for right-wing calls of preferential treatment.

"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," Curt A. Levey, head of the conservative Committee for Justice, said in today's New York Times.

He went on, echoing 90s-era arguments about affirmative action: "If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”

The White House, however, insists Obama looks for nominees who reflect the nation and know the law.

"The president wants the federal courts to look like America. He wants people who are coming to court to feel like it’s their court as well," said White House counsel Kathryn Ruemmler, before explaining, "It’s not just about race, it’s not just about gender, it’s not just about experience. We try to look at judges in a much more holistic way.”

As the 2012 race picks up pace, prepare to hear this debate about judicial diversity and alleged activism reach a fever pitch.


  1. Philo says

    It is true that no matter who the Republican candidate is, they would nominate justices in the Scalia mold, not the Sotomayor mold. There would be no difference in the kind of justice Romney or Bachmann would nominate.

  2. AdamA says

    We’re talking about a system that is institutionally white and male (not to mention straight and Judeo-Christian). If they can’t see why a minority American would look at such a system and question its fairness, then they don’t understand the first thing about the Judicial Branch’s task: protecting minorities from the tyranny of the majority.

    (To be clear, this isn’t to say that a judge’s biases are determined by their sex/gender/race/ethnicity/sexuality/religion/background. Merely that it’s a problem for an entire branch of the government to be so monolithically white and male.)

  3. Jeff M. says

    They’ve been cherry picking the majority of white, male judges for the last couple of centuries. At this point, perhaps the pool of qualified minority candidates who aren’t already judges is actually larger.

    Just sayin.

  4. Morning Tundra says

    [If they can’t see why a minority American would look at such a system and question its fairness….]

    Dubious. Most Americans of any type can’t name a single Supreme Court justice, let alone a lower-court one.

    Judges do law, not identity.

  5. Ken says

    The thought of a Republican President getting to appoint a successor for either Ginsberg or Kennedy, (the two who may be closest to retirement), is really scary. I hope the Prop 8 and DOMA cases make it to the Supreme Court soon. I know many here disagree, but I do not think Obama can win a second term and the courts will be getting a lot more conservative after 2012.

  6. Artie Rimbaud says

    Republican judicial nominations are, in general, an abomination. This is particularly true of Republican presidential candidates. Please remember that the next battles in LGBT rights will be won or lost in the courts.

  7. says

    Just picking a nit here, but while the President is the Commander-in-Chief, the President nominates judges in his/her civilian capacity. There is no military angle to the story so the C-in-C mention is a non sequitur. Unless martial law has been declared and I didn’t hear about it.

  8. says

    This is precisely why we MUST work hard to get Obama re-elected. Regardless of how you feel about his Presidency, allowing the Republicans to appoint close-minded conservative idiots to the courts (especially the SCOTUS) will set equality back years! Get the picture and realize that Obama is our only viable option in 2012. To think otherwise is downright dangerous.

  9. Redebbm says

    Elections have consequences, serious one. While Obama has not conducted his presidency quite as we predicted the man has only nominated smart, independent people to the judicial positions. These people will be making decisions that will last with us for probably the rest of our lives.

    I can’t even think how it’ll look if the Republicans manage to grab their hands on the presidency, especially if its because we do not turn out. The Supreme Court has been bad enough.

  10. Esurb says

    To me the big question is Will the seemingly gutless Obama lean the other way in EVEN A SINGLE Supreme Court nomination in the future? [That is the one area where he appears to have performed brilliantly. A single selection aimed at establishing how eager he is to compromise, and the nation is doomed! Are there more brilliant selections too appealing to refuse to approve?]