July 25, 2016 | Commentary on Legal Issues, Federal Judicial Branch

Left Disappointed with "Old White Guy" Supreme Court Nominee

Once a lecturer at the University of Chicago law school, President Obama returned to his old stomping grounds to make the case for confirming his Supreme Court nominee, D.C. Circuit Chief Judge Merrick Garland. Many on the Left have bemoaned the fact that Garland is “an old white guy.” More specifically, he’s a 63-year-old Jewish, Ivy-League-educated white guy.

Several Obama supporters called the nomination “an absolute slap in the face” and “a wasted opportunity.” There were calls for Obama to nominate an African-American woman instead. (Might we suggest D.C. Circuit Judge Janice Rogers Brown?)

At the Chicago event, an audience member asked Mr. Obama what “diverse characteristics Judge Garland would bring to the Supreme Court.” Apparently his record of consistently ruling for unions and federal agencies and against political speech and gun rights isn’t enough to please liberals. In response, Mr. Obama hemmed and hawed before saying that he doesn’t think about a particular demographic for “any single seat.” Instead, he said, he simply tries to be “intentional” with every nomination, adding: “At no point did I say, ‘Oh, you know what? I need a black lesbian from Skokie in that slot. Can you find me one?’”

But what does Mr. Obama mean by “intentional”? In his view, it is more important that judges are “reflective of a changing society” than it is that they are impartial arbiters who interpret the law according to its text and original public meaning. Having already appointed two women (including a Hispanic) to the Supreme Court, Obama summed up his nomination of Garland: “[H]e's a white guy but he's a really outstanding jurist. Sorry.”  He also commented:

"[N]ot to brag, but I have transformed the federal courts from a diversity standpoint with a record that's been unmatched … We've got more African-Americans on the circuit courts than we ever had before. I've appointed more African-American women to the federal courts than any other president before. I've appointed more Latinos than any president before. I've appointed more Native Americans, more Asian-Americans, more LGBT judges than ever before"

Clearly our post-racial president couldn’t help pointing out that his record does fall in line with the Left’s racial bean-counting obsession. Indeed, Mr. Obama chose Sonia Sotomayor, a Hispanic female judge, as his first Supreme Court nominee over the protests of his former mentor, the well-known liberal law professor Laurence Tribe. Tribe called Sotomayor “a bully” and “not nearly as smart as she seems to think she is.”

Nominees for life-time judicial appointments should be selected on the basis of their fidelity to the Constitution and understanding of the proper (and limited) role of the courts—not for their race, ethnicity, or gender. Rather than heed Justice Clarence Thomas’s admonition that this sort of racial balancing “demeans us all” or Martin Luther King, Jr.’s dream that his children would “not be judged by the color of their skin but by the content of their character,” Mr. Obama has placed a premium on innate characteristics that are wholly irrelevant to the job of being a judge.

Our president does not seem particularly interested in any intellectual diversity on the federal courts. Rather, his apparent obsession with race and other “identity politics” characteristics has permeated his administration and his Justice Department, too. Under both Eric Holder and Loretta Lynch, the DOJ has fixated on race and pressed cases under the very dubious “disparate impact” theory that finds wrongdoing if there is a disproportionate effect regardless of the reason.

Would they think of targeting the National Basketball Association based on a disparate impact theory of liability because the number of black players is far higher than the proportion of black males in the general population?  Of course, not.  This sordid legal tool is a one-way ratchet.

Many in the administration believe that we are an implicitly biased society. That’s an insult to the overwhelming majority of Americans. Our country today is remarkably free of the kind of cruel prejudice found in so many other societies around the world.

Ironically, those publicly expressed claims of systemic American racism have clearly damaged race relations in this country. Polls show that “public attitudes about race relations have plummeted since the historic election of President Barack Obama.”

By bragging about the race, gender, or sexual preferences of his judicial nominees instead of their legal prowess and scholarship, the president shows just how determined he is to make sure public officials are not judged solely by the content of their character.  It is a disappointing and disheartening attitude – and it hinders the courageous and vigorous efforts we have been making since the early 1960s to entirely eliminate the kind of discrimination and prejudices that were an all too common characteristic of those times.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Elizabeth Slattery Legal Fellow and Appellate Advocacy Program Manager
Edwin Meese III Center for Legal and Judicial Studies

Originally published in Conservative Review