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Diversity Pool for High Court Justices Too Shallow?
Law.com ^ | 09-26-2005 | Marcia Coyle

Posted on 09/24/2005 4:31:12 AM PDT by alessandrofiaschi

If President Bush wants to make a "diversity" pick for a Supreme Court nomination, must he swim shallow or deep in the pool of conservative minority and female possibilities?

Conventional wisdom last week suggested that Bush, after tapping Judge John Roberts, a white male, for the position of chief justice, was unlikely to name another white male for the remaining high court vacancy, the seat currently held by Justice Sandra Day O'Connor, the first female justice.

Of course, conventional wisdom immediately after O'Connor announced her impending retirement held that Bush would maintain or increase diversity on the high court in filling her seat, but he initially nominated Roberts, only to renominate him as chief justice following the death of William H. Rehnquist. So much for conventional wisdom.

But speculation is a key atmospheric element for survival for many inside the Beltway, and, last week, racial, ethnic and gender diversity marked the potential candidacies of names flying on and off the White House's alleged "short list."

Some names have been on the "list" for two or three Republican administrations: for example, Edith Jones and Emilio M. Garza of the 5th U.S. Circuit Court of Appeals and U.S. District Judge Ricardo H. Hinojosa in Texas.

Others have emerged more recently by virtue of their connection to the president himself, either having worked in his administration, for example, former Deputy Attorney General Larry Thompson, now general counsel at PepsiCo Inc., or having been appointed by him to the bench, such as 9th Circuit Judge Consuelo Callahan.

"I think what happens in this process is there is an initial search and so much work is required to satisfy the competing constituencies that once a list is assembled, few people want to give it up," said Douglas Kmiec of Pepperdine University School of Law, who worked in the Reagan Justice Department. "Some of the names on the list are almost venerable by virtue of age and longevity. There is a certain comfort in going with what you know, but it may not be the best."

The pool of qualified, conservative minority and female candidates for the federal bench is better than it was a decade ago, say court scholars and former Republican administration officials, but it is much shallower than the pool of conservative white males and the Democratic pool of minority and female candidates.

In fact, when a number of conservative legal scholars and others following or involved in the nomination process were asked to name, either on or off the bench, the conservative female counterpart to the left's constitutional scholar and advocate Kathleen Sullivan, no names leapt to mind.

"There isn't anyone," echoed Bruce Fein of Washington's Fein & Fein, a former Justice Department official in the Reagan administration. "The closest may be Pamela Rhymer, [a 9th Circuit judge,] but she is not quite of the same stature in terms of analytical incisiveness."

And when the pool is divided into what Fein calls "thinkers and lawyer-types," he said, there aren't many "thinkers" like former appellate judge Robert Bork, "giants who change the philosophy of law and have spoken about changing ideas."

Candidates in the diversity pool, he explained, are mostly political nominees, appointed for the political benefit of the president as opposed to the influence they would have on the Supreme Court.

"I think that's the issue Bush has to confront. He can get people who are perfectly qualified who are minorities or women, but they won't be people who carry the influence of someone who writes like a Bork or [Justice Antonin] Scalia or [Chief Justice John] Marshall."

CREATING DIVERSITY

For now, Bush apparently is looking primarily to the federal courts for diversity nominees. "Because of the pool problem, we did carefully examine law firms and professors as well in looking for good women and minorities to appoint as district judges and appellate judges," recalled Bradford Berenson of Sidley Austin Brown & Wood, who served as associate counsel to Bush in his first term.

"For the Supreme Court, it is harder. The universe of people who are arguably credible is much, much smaller," he explained. "The candidate lists for women and minorities do tend to focus on people who already have distinguished themselves on the federal appellate bench. You hear a small handful of names of people who are practitioners or judges on state benches."

Berenson said Bush does have qualified women and minorities to choose from for the O'Connor seat. "My own hunch, given the president's own commitment to diversity on the federal bench, is that he is going to have a strong bias in favor of selecting a qualified woman or minority for this second seat," he added.

Bush's commitment to diversity on the federal courts is borne out by the numbers, said federal court scholar Sheldon Goldman, political science professor at the University of Massachusetts at Amherst. "His record has been the best record of any Republican president," said Goldman. "It exceeds his father's record. It's not as good as President Clinton's record, but it's close to President Carter's. Carter was the breakthrough administration for diversity or nontraditional appointments."

Today, 37.3 percent of all federal judges are nontraditional appointments. Women hold nearly a quarter of all federal judgeships. Representation of Asian-Americans is at less than 1 percent; no Native Americans sit on the federal bench and none has sat since 2001.

Studies have shown that diversity trumped ideology for Carter, who actually named conservative Republican women to the bench, said Goldman, noting Cornelia Kennedy on the 6th Circuit.

"For Bush, diversity is very important but ideology trumps diversity," he said, explaining, "We know that from the people he is not choosing and from those he is choosing. Key advisers and judge-pickers all have made it clear they are looking for people who share the president's judicial philosophy."

The pool of qualified conservative minority and female candidates for a Bush Supreme Court nomination is shallower overall for a number of reasons, some historical, others political.

The first generation of women and minority lawyers who had full access to equal opportunity are only now getting to the age where they could be considered for judicial appointments, said a former administration official who wished not to be named. "With respect to minorities, fewer tend to skew conservative in their political sensitivities."

But the latter may change as well as the overall pool size in 10 to 20 years, said M. Edward Whelan III, president of the Ethics and Public Policy Center and a former principal deputy assistant attorney general in the Office of Legal Counsel in the Bush Justice Department.

"It's more useful to look at the transformation that has started to occur in law schools as a result of the challenge to conventional legal thinking that Reagan judges provided," he said. "Ten or 20 years from now, you will have Scalia protégés teaching and bringing along more folks and the numbers will grow."

Whelan and conservative legal scholar Steven Calabresi of Northwestern University School of Law, who served in both the Reagan and Bush I administrations, also claimed that the growth of a conservative diversity pool has been slowed by the difficulty conservatives face in being hired by some law schools.

"I do think it is somewhat harder for conservatives to get hired in law teaching than it is for liberals," said Calabresi. "It is even harder for conservative women and minorities than white males. Conservative women and minorities are treated as objectionable because there must be self-loathing involved if you are a conservative. It's hard to generalize about, but I do think it is a problem."

Whelan said his impressions are third hand, but he's heard that there's a great deal of hostility in law schools toward conservative professors who often have to "hide their stripes" if they're not tenured.

"I have heard very good things about [Dean] Elena Kagan at Harvard and what she has done in bringing on board some top-notch conservative scholars," he said. "She seems to value quality across the board."

The Bush pool gets even smaller, however, by virtue of the hunt for conservative women and minorities who share his philosophy or who will be amenable to his conservative constituencies.

"Certain of the women and minorities in the qualified pool clearly have been brought up on charges of suspected moderation," said one former administration official. "I think [Attorney General Alberto] Gonzales would be an obvious first choice were it not for opposition by conservative groups. And then there are others who might be considered too conservative: Edith Jones is an obvious name. Politics in all directions plays a role."

Sherrilynn Ifill of the University of Maryland School of Law, who has written about diversity and judicial independence, agreed, adding, "This is not just a matter of intellectual capabilities but a matter of expressed ideology. His constituency has to be reassured. The candidate has to have expressed views, but not have expressed them in such a strident way that results in a seriously contentious and ultimately unsuccessful confirmation process. That is the president's conundrum.

"If the president is prepared to move off somebody who has an expressed ideology and to look for a moderate Republican, then it opens things up tremendously," she said.

Kevin R. Johnson, associate dean and Public Interest Professor of Law and Chicana/o Studies at the University of California, Davis School of Law, said he doesn't "buy" a pool problem with women today, since they make up 55 percent of law school applicants.

Pepperdine's Kmiec agreed: "Law schools have been producing high-ranking female graduates for over a decade. For example, Maureen Mahoney [partner at Latham & Watkins and a former deputy solicitor general] is one of the most excellent Supreme Court advocates. The mere fact she is not sitting on the District of Columbia Circuit ought not to disqualify her."

For Latinos and African-Americans, the pool is smaller than for white nominees, "especially if you limit your pool to the Federalist Society," said Johnson. "But it's not the case that Latino activist groups are going to oppose all conservative Latino nominees. If a conservative is in the mainstream, they will support a Latino because of the benefits of adding diversity to the court."

Bush and future presidents, he said, must think about diversity on the Supreme Court, if not with the O'Connor vacancy, then with future ones.

"It was a monumental move forward when Thurgood Marshall was added to the Supreme Court," he said.

"For the very first time, African-Americans were give a seat at the table on the supreme lawmaking body of the land. You can never fully represent the entire population. You can only hope to include different voices over time and not make it an exclusive enclave."


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events; Philosophy; Politics/Elections; US: District of Columbia
KEYWORDS: appointment; associatejustice; bush; chiefjustice; conservatism; conservative; conventionalwisdom; court; diversity; female; gender; justice; law; minority; nomination; nominee; oconnor; replacement; roberts; robertshearings; scotus; senate; supremecourt; university; vote
From legal scholar Steven Calabresi of Northwestern University School of Law, who served in both the Reagan and Bush I administrations:

"I do think it is somewhat harder for conservatives to get hired in law teaching than it is for liberals," said Calabresi. "It is even harder for conservative women and minorities than white males. Conservative women and minorities are treated as objectionable because there must be self-loathing involved if you are a conservative. It's hard to generalize about, but I do think it is a problem."


1 posted on 09/24/2005 4:31:13 AM PDT by alessandrofiaschi
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To: alessandrofiaschi

JRB JRB JRB


2 posted on 09/24/2005 4:35:24 AM PDT by PeteB570
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To: PeteB570

I would love JRB. Bush and Rove like Gonzales, and are afraid of fight the left and right at the same time. So its still anyones guess.


3 posted on 09/24/2005 4:38:26 AM PDT by HapaxLegamenon
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To: HapaxLegamenon

Why not Steven G. Calabresi for SCJ?


4 posted on 09/24/2005 4:43:29 AM PDT by alessandrofiaschi (Is Roberts really a conservative?)
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To: alessandrofiaschi

real diversity on the court
how about a non-lawyer?


5 posted on 09/24/2005 4:47:22 AM PDT by JohnLongIsland
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To: alessandrofiaschi

No bias or prejudice there.


6 posted on 09/24/2005 4:53:42 AM PDT by Blood of Tyrants (G-d is not a Republican. But Satan is definitely a Democrat.)
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To: alessandrofiaschi

I nominate Mark Levin! now get off the phone you dope


7 posted on 09/24/2005 4:53:47 AM PDT by Nipplemancer (Abolish the DEA !)
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To: alessandrofiaschi

Part of the problem is that the first thing they do when you get into law school is they brainwash you.


8 posted on 09/24/2005 4:59:44 AM PDT by Brilliant
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To: alessandrofiaschi
At some point, we have to stop dancing around the elephant in the living room.

The "views" that a nominee may not express, lest it lead to a "contentious and ultimately unsuccessful...process", are the views of the mainstream. They are the views that elected the President. They are the views that have elected the majority in Congress since 1994. They are the views that elected Presidents in 1968, 1972, 1980, 1984, 1988, 2000 and 2004.

They are the views that, by now, should dominate the Supreme Court.

The reason that they do not is that the Senate, on both sides of the aisle, is far, far to the left of the voters.

In our obsession with who becomes President, we are in danger of overlooking the type of persons who get elected to the Senate.

It is outrageous that a Leftist activist ten standard deviations out of the mainstream is confirmed without debate, by 96-3, while a paragon of moderation like Roberts is denied the votes of the Democrat leadership.

We need Senators who will fight. We don't have 'em.

9 posted on 09/24/2005 5:11:06 AM PDT by Jim Noble (In a time of universal deceit telling the truth is a revolutionary act - Orwell)
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To: alessandrofiaschi
The pool of qualified, conservative minority and female candidates...

...the pool of conservative white males...

...Democratic pool of minority and female candidates.

Interesting. Conservative v. Demoncrat.

10 posted on 09/24/2005 5:23:49 AM PDT by CPOSharky (The more I'm around people the better I like my dogs.)
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To: Jim Noble

Bump ity bump


11 posted on 09/24/2005 5:56:10 AM PDT by Wuli
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To: alessandrofiaschi

Let's cause Teddy K's head to explode. Ann Coulter or Laura Ingrham


12 posted on 09/24/2005 6:24:25 AM PDT by MNJohnnie ("Don't get stuck on stupid, reporters.")
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To: alessandrofiaschi

Yes, we jusst do not have a wide enough choice for nominees to the Supreme Court.

Where is the Patagonian-Ameican nominee? Why not nominate a Nigarian citizen? Or a teenager? Or a ditch-digger? And why aren't dwarfs represented? Or the mentally ill? Or a chicken?


13 posted on 09/24/2005 6:44:23 AM PDT by R.W.Ratikal
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To: MNJohnnie

Janice Rogers Brown, Janice Rogers Brown, Janice Rogers Brown, Janice Rogers Brown, Janice Rogers Brown, Janice Rogers Brown, Janice Rogers Brown, Janice Rogers Brown, Janice Rogers Brown.

That will REALLY make the swimmer's head explode.


14 posted on 09/24/2005 7:17:39 AM PDT by USS Alaska (Nuke the terrorist savages - In Honor of Standing Wolf)
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To: Jim Noble

http://www.freerepublic.com/focus/f-news/1323417/posts

The elephant being the 17th amendment.


15 posted on 09/24/2005 7:25:07 AM PDT by H.Akston (It's all about property rights)
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To: alessandrofiaschi
I am still trying to hunt down any news story that has the quote from Justice Ruth Ginsberg stating "I would rather President Bush pick a man than an inexperienced women to the high court?"

I heard the story reported on WRKO 68 AM radio Boston the other night and I cant find it in print. If anyone can help me that would be great.

16 posted on 09/24/2005 7:27:14 AM PDT by april15Bendovr
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To: alessandrofiaschi

The diversity is too shallow, there are not enough conservative lawyers.

Instead we have DOJ hacks who function as extra prosecutors, or ACLU stooges. Essentially anti-individuals.

We need a pool which has LESS left wing looneies and more mainstream conservatives.

Ginsberg should NEVER have gone beyond committee, she is just plain NUTS.


17 posted on 09/24/2005 7:28:21 AM PDT by longtermmemmory (VOTE!)
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To: H.Akston

Thanks for the link. But can you explayn why it could be useful to repeal 17th A., in order to have a "better" nominee?


18 posted on 09/24/2005 7:36:31 AM PDT by alessandrofiaschi (Is Roberts really a conservative?)
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To: april15Bendovr

Perhaps...
http://www.law.com/jsp/article.jsp?id=1127379918762&rss=newswire


19 posted on 09/24/2005 7:39:20 AM PDT by alessandrofiaschi (Is Roberts really a conservative?)
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To: longtermmemmory
Ginsberg should NEVER have gone beyond committee, she is just plain NUTS. But Republicans voted for her quite easily.


20 posted on 09/24/2005 7:40:53 AM PDT by alessandrofiaschi (Is Roberts really a conservative?)
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To: alessandrofiaschi
Thats the ticket. Thank you.

So it would seem that Ruth-less Ginsberg would rather have a liberal man than a conservative women appointed to the high court?

In other-words she isn't a feminist in its true context of the definition because she only cares for the advancement of women only if they are a liberal it would seem?

21 posted on 09/24/2005 7:46:16 AM PDT by april15Bendovr
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To: alessandrofiaschi

When you hear leftest liberals talk about diversity it means only one thing and that is their skin color, gender or sexual preference. Diversity of thought may be talked about in our schools and businesses but "thought" diversity is neither funded nor promoted. Diversity is the new term for racism against all things white, male and Christian. Businesses are now supporting organizations who make no secret of their hate for Christians and white males. Two more things Diversity teaches hate, suspicion and intolerance and there is no Business Case for Diversity all the studies show that diversity does not improve productivity.


22 posted on 09/24/2005 7:49:48 AM PDT by sasafras (Want to get rid of illegals then take away all the benefits and penalize employers who hire illegals)
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To: alessandrofiaschi
But Republicans voted for her quite easily.

Well, given that Republicans recommended her, it is only natural that they went ahead and voted for her. The question is, why did they recommend her in the first place?

23 posted on 09/24/2005 8:08:42 AM PDT by nwrep
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To: nwrep
The question is, why did they recommend her in the first place?

No, the question is, now that THEY have the power, why aren't they demanding right-wing radical bombthrowers who would correspond EXACTLY to RBG?

24 posted on 09/24/2005 8:11:26 AM PDT by Jim Noble (In a time of universal deceit telling the truth is a revolutionary act - Orwell)
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To: nwrep
Well, given that Republicans recommended her, it is only natural that they went ahead and voted for her. The question is, why did they recommend her in the first place?

Because she wasn't half as bad as that Attorney General that Clinton wanted. Shes nothing compared to Thurgood Marshall and company. It is my belief that the President generally deserves to get his nominees.

25 posted on 09/24/2005 8:13:55 AM PDT by zendari
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To: zendari

I totally agree with you on this. Brennan and Marshall were repugnant bastards, and compared to THEM, RBG is tolerable.


26 posted on 09/24/2005 8:16:48 AM PDT by nwrep
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To: PeteB570

JRB wouldn't be THE Janice Rogers Brown, would it? I mean, like, has there ever been an article to generate a bigger "Duh"? I am a bit surprised at Bruce Fein, though maybe not surprised at the article...


27 posted on 09/24/2005 8:26:15 AM PDT by guitarist
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To: alessandrofiaschi

I know of a "diversity pick" most likely headed to law school in three years. Ready for the Court in about 2029. Stay tuned...


28 posted on 09/24/2005 8:28:34 AM PDT by guitarist
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To: alessandrofiaschi

Sure.
A repeal of the 17th would make senators more sensitive to limiting the growth of the federal government at the expense of the States and 10th Amendment rights, and they would ask questions of federal court nominees such as: "Do you believe states have the right to decide whether a person has a right to die?" Better future nominees would say "yes", or at least have a record that says yes, and if not, be more likely to not be confirmed.

A proper Senate (post repeal of the 17th) will protect State legislative authority, keeping it where it belongs. They will block court nominees who would threaten to not rule in the way the majority ruled in Bush v. Gore, which protected (from a rogue liberal state supreme court) the sacred and undisputable right of the Florida legislature to choose electors for president. They might even block nominees who think that affirmative action and radical feminism (inequality for the sake of "justice") is constitutional. Those ideas are often popular, yet unconstitutional. A proper senate won't care as much as the current one does, about popularity. That's the House's job.


29 posted on 09/24/2005 9:03:16 AM PDT by H.Akston (It's all about property rights)
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To: alessandrofiaschi
What is it with all of this diversity crap? America is the land of the free, because of what remains of the Constitution. If it is incidentally diverse, great. But freedom was the goal, diversity a by-product.

Pick a judge that wants to restore and defend the Constitution, not one who adds color or contrast in a group photo.

30 posted on 09/24/2005 9:42:27 AM PDT by kcar (The UN sucks, but a runaway federal government's not much better)
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To: alessandrofiaschi
"I do think it is somewhat harder for conservatives to get hired in law teaching than it is for liberals," said Calabresi. "It is even harder for conservative women and minorities than white males. Conservative women and minorities are treated as objectionable because there must be self-loathing involved if you are a conservative."

If that's true, why can liberal white guys get a job there?

31 posted on 09/24/2005 4:36:00 PM PDT by Still Thinking (Disregard the law of unintended consequences at your own risk.)
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To: alessandrofiaschi
And then there are others who might be considered too conservative: Edith Jones is an obvious name. Politics in all directions plays a role.

Moderation in the defense or pursuit of justice is no virtue.

32 posted on 09/24/2005 4:38:55 PM PDT by Still Thinking (Disregard the law of unintended consequences at your own risk.)
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To: R.W.Ratikal
Where is the Patagonian-Ameican nominee? Why not nominate a Nigarian citizen? Or a teenager? Or a ditch-digger? And why aren't dwarfs represented? Or the mentally ill? Or a chicken?

Nah. All those guys (and things) are too busy having sex with the Senate Democratic "leadership" to fill a SCOTUS seat.

33 posted on 09/24/2005 4:42:14 PM PDT by Still Thinking (Disregard the law of unintended consequences at your own risk.)
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