“In our own era, race and gender have defined so much of our politics,” said Jeffrey Toobin, author of the The Nine, an in-depth study of the Supreme Court’s history, as he opined about diversity in an article in The New Yorker last year. Toobin described the nation’s current obsession with race and gender diversity as yet another manifestation of an age old practice that began with a concern for regional diversity and evolved into a call for religious diversity.
Most of the arguments that will ensue in the coming weeks and months over Solicitor General Elena Kagan, recently chosen by President Obama as his nominee for the Supreme Court vacancy created by the retirement of Justice John Paul Stevens, will revolve around racial or gender diversity. Although Kagan was nominated despite a complete lack of judicial experience, the real battleground for diversity on the Supreme Court begins in the trenches – in our nation’s state courts and federal district courts.
The American Bar Association’s National Database on Judicial Diversity in State Courts shows that the national percentage of all minority state judges – African American, Asian, Latino, and Native American – hovers between nine and ten percent of all state court judges. Out of the almost 1,300 sitting federal judges, eight percent are African American, 11 are Asian-American and only one is a Native American. Almost two thirds of the 94 federal districts have never had a jurist who is a woman or a person of color.
Carl Tobias, a University of Richmond law professor, feels that “the federal bench is another significant field that needs increased diversity, especially in terms of ethnicity and gender.” Tobias believes President Obama understands how important it is to begin in the trenches, and sees some encouraging signs from his efforts to appoint more minorities and women to the federal bench.
A recent study by the Alliance for Justice shows that of Obama’s first 19 nominees to federal appellate benches, six were women, five were African-American, two were Asian-American and two Hispanic; only six were white males. According to the Administrative Office of the U.S. Courts, Obama has nominated 66 district and appellate judges and has 83 more vacancies to fill.
While all eyes are trained on the Senate for the expected political fight over Kagan’s Supreme Court nomination, little attention has been given to the stall tactics the GOP has used to slow President Obama’s federal court nominee confirmations to a crawl. Republican senators frequently resort to objecting to a nominee on ideological grounds, often claiming that a candidate’s views are “outside the mainstream.”
According to the Baltimore Sun, out of 66 Obama nominees, only 20 have been confirmed so far. Some of those recently seated have waited as long as three months before being confirmed to their lifetime appointments.
In her book Open House, law professor Patricia Williams recounts an anecdote that captures the essence of the often volatile and emotionally charged arguments over the supposed “radical ideologies” of Obama’s federal judgeship appointees.
A friend of Mrs. Williams, who built a national reputation as a civil rights litigator during stints at the Equal Opportunity Employment Commission and the NAACP Legal Defense Fund, went into teaching law for awhile. One of this friend’s students, a police officer going to law school to further his career, engraved her name on the side of a bullet and showed it off to his classmates “as a kind of joke.”
This anecdote is a crude reminder, both for Williams’ friend then and for us today, of the level of resistance some Americans still harbor against minorities and women, especially those who may be in line to become legitimate legal authorities of the United States of America.