Diversity and the federal bench.

• Author: Tobias, Carl W.

Justice Sonia Sotomayor's appointment was historic. She is the first Latina Supreme Court member and President Barack Obama's initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency's initial fifteen months also creates the tone. These ideas suggest that the nascent administration's judicial selection merits evaluation, which this paper conducts. Part I briefly assesses modern chief executives' divergent records in naming minority and female judges. Part II descriptively and critically evaluates the Administration's practices for choosing those jurists and the success realized. Ascertaining that Obama expeditiously nominated many well-qualified persons of color and women but the Senate approved few, the last portion offers recommendations for swift confirmation.

1. THE HISTORICAL BACKGROUND

   1. The Early History

      The early history related to diversity deserves brief analysis here, as it has been chronicled elsewhere. (1) Before 1977, minuscule numbers of ethnic minorities and very few women received appointment. In 1967, Thurgood Marshall became the first African American Justice; in 1950, William Hastie was the first African American Circuit Judge; in 1934, Florence Allen became the first female appellate judge; and in 1950, Burnita Shelton Matthews was named the first woman to serve on a U.S. District Court. (2) Minorities and women have long been underrepresented on the bench. (3) Caucasians constitute 84 percent of lower court judges. Women are one in five. African Americans comprise eight percent. only 11 of 1300 sitting judges were Asian Americans, and merely one was a Native American when Obama became President. (4) A female judge has never served on 12 of the 94 districts, while people of color have yet to be jurists in even more districts. (5)

   2. The Modern History

      Before Jimmy Carter's presidency, virtually no minorities and only a tiny number of women served as judges. (6) Carter vowed to remedy this dearth with special initiatives. He adopted a Circuit Judge Nominating Commission--which vigorously searched for, designated, and helped confirm able persons of color and women--(7) and requested that senators propose additional minority and female counsel for the trial bench and institute district selection panels to foster confirmation. (8) The Administration tendered numerous very capable minority and female attorneys and confirmed most. People of color constituted 20, and women 16, percent of its appointees. (9)

      Once Ronald Reagan captured the presidency in 1980, he argued that the election was a mandate to increase conservatism on the judiciary. (10) Reagan selected and confirmed many appellate and district jurists with ideologically conservative perspectives. He appointed practically no minorities and few women. (11) When President George H. W. Bush secured election during 1988, he essentially followed Reagan's selection philosophy and deployed analogous practices. (12) Bush named many conservative judges while forwarding and appointing small numbers of minority practitioners, but he did submit and confirm numerous female lawyers.

      After Bill Clinton won the presidency in 1992, he emphasized competence and diversity, used selection to further his centrist agenda, and instituted particular actions to choose and appoint many talented persons of color and women. (13) He wrote the Democratic senators urging them to propose very capable minority and female attorneys. (14) Thus, Clinton selected well-qualified jurists who expanded ideological balance, appointing people of color and women in record numbers. Despite his concerted endeavors, Republican and Democratic squabbling halted or delayed confirmation for a number of talented minorities and women. (15)

      President George W. Bush triumphed in 2000 partly by asserting that he would name strict constructionists, and attempts to honor this vow help explain his 2004 reelection. (16) Nonetheless, when Bush proposed lawyers whom Democrats opposed as too conservative, even invoking filibusters, this stymied appointments. (17) Charges, retorts, and paybacks vexed selection. Bush named many conservatives and numerous women but relatively few minorities. (18)

2. EARLY JUDICIAL SELECTION

   1. Descriptive Analysis

      1. General Approach

         The Administration swiftly planned selection, quickly naming Gregory Craig, an expert lawyer, as White House Counsel, (19) and calling on Vice President Joe Biden's nearly 40-year Judiciary panel experience to facilitate nominations and confirmations. (20) Obama attempted to foresee and treat potential concerns. For example, he assembled "short lists" of excellent prospects, should there be a Supreme Court vacancy. His White House, as most, retained full control over that area, much over circuit appointments, (21) and some over district choices. This Department of Justice (DOJ), like many, assumed certain responsibility for selection and much to prepare nominees. (22) Obama consulted Democratic and GOP Judiciary Committee members and senior party officials from states with vacancies before actual nominations. (23) Many of these officials use commissions that forward promising designees they recommend to Obama, who then nominates.24 Most suggested are highly competent and diverse in terms of ethnicity, gender, and ideology. (25)

         Before and after nominations, Obama cooperated with Senators Patrick Leahy (D-Vt.), the Judiciary chair, who arranges hearings and votes; Harry Reid (D-Nev.), the Majority Leader, who schedules floor action; and their GOP counterparts, Senators Jeff Sessions (R-Ala.) and Mitch McConnell (R-Ky.). (26) The panel swiftly processed nominees, yet few secured hearings before the August 7 recess. (27) The minority also routinely delayed committee votes for a week absent justification. It held over several female circuit prospects but unanimously approved them the next week and similarly treated four California District Court possibilities, while Sessions orchestrated a party-line vote against one California nominee, arguing that Magistrate Judge Edward Chen's ACLU representation might preclude him from impartially applying the law. (28)

         The chamber did not act on lower-court nominees prior to September, partly because the Supreme Court process consumed three months in which little other selection activity occurred. (29) McConnell failed to cooperate later in arranging floor consideration, even rejecting temporal accords, while individual Republicans placed anonymous holds on uncontroversial nominees, both of which delayed the process and essentially required that Democrats file cloture petitions. (30) The lawmakers have also requested much debate time for nominees they eventually supported. Illustrative is Roberto Lange. The GOP sought two hours but used only five minutes, and he was approved 100-0. (31) Persons of color and women, such as Judges Andre Davis and Beverly Martin, waited months to have floor votes. (32) Sessions and numerous GOP colleagues have deemed controversial, mainly for ideological reasons, nominees like Judges David Hamilton, Davis, and Chen, who formerly would have prompted minimal controversy. Sessions stated that Hamilton has "drive[n] a political agenda," (33) embracing the "empathy standard" and "the idea of a living Constitution;" (34) asserted that Davis "has been reversed quite a number of times;" (35) and doubted Chen would be a neutral umpire. (36) He summarized these ideas: "I think we're seeing a common DNA run through the Obama nominees, and that's the ACLU chromosome." (37) Even had Democrats invoked cloture to force earlier votes, the GOP would have secured 30 hours of debate, thus consuming precious floor time. (38)

         Obama has tapped nineteen appellate and forty-four district nominees, the Judiciary panel has approved twelve circuit and thirty-one district prospects, and the Senate has confirmed nine appellate, and eleven district, nominees. (39) The Senate confirmed Judge Sotomayor to replace Justice David Souter, who retired, giving prompt evaluation top priority. (40) Clinton appointed to the district bench ten very competent Obama appellate nominees. (41) Eleven district prospects are Magistrate Judges and thirteen are state jurists. (42)

      2. Diversity

         Obama has emphasized diversity. (43) He has instituted particular efforts to improve diversity, as reflected in tapping and appointing many people of color and women. The President has concomitantly approached less conventional entities, such as minority and women's groups that know myriad possible nominees. He has also reached out to minority and female legislators, who have identified diverse candidates and helped them negotiate the selection gauntlet.

         The White House has suggested that officials and their panels adopt special initiatives to recommend persons of color and women. Most commissions have efficaciously sought out, analyzed, and proposed a number of skilled, diverse lawyers. For example, one panel interviewed 40 candidates and sent an African American and a Latino for the Fourth Circuit, (44) while others submitted four Asian American California District Court prospects. (45) Many elected figures have pursued, assessed, and suggested numerous qualified people of color and women. For instance, the Maryland, New Jersey, and Rhode Island senators proposed African American designees for the Fourth, Third, and First Circuits, and New York's senators proffered an Asian American jurist for the Second; all four received nomination. (46)

         Obama has searched for, evaluated, tapped, and confirmed many able persons of color and women, numbers of whom are federal or state court judges. (47) His nineteen appellate court prospects include...