President Obama has said that one quality he prizes highly in his judicial appointments is empathy. “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom,” he told a Planned Parenthood conference way back in 2007. “The empathy to understand what it’s like to be poor or African-American or gay or disabled or old. And that’s the criteria by which I’m going to be selecting my judges.”
Alas, according to the American Bar Association, empathy isn’t good enough. Last week, news leaked that the ABA has secretly informed the White House that it rated 14 out of a potential 185 nominees for federal judgeships “unqualified” — most of them women and minorities put forth in the name of “diversity.”
Fourteen may not seem like many, but The New York Times (which broke the story) reports that it’s more than the combined number of judges the ABA “flunked” during the administrations of Bill Clinton and George W. Bush (who stopped submitting his nominations to the ABA).
After some huffing about racism and discrimination against women, the administration chose not to nominate any of the 14. With Republicans continuing to block many of Obama’s choices, it’s no time for another losing fight.
But this won’t stop Obama & Co.’s mad pursuit of “diversity” (narrowly defined in terms of race and sex) or from elevating politically correct “empathy” over what should be a judge’s chief consideration, fidelity to the law.
As of August, the Senate had confirmed 97 of Obama’s federal judicial nominees; nearly half of them have been women, a fifth African-American and 11 percent Hispanic.
“The president wants the federal courts to look like America,” explained the White House counsel, Kathryn Ruemmler. “He wants people who are coming to court to feel like it’s their court as well.”
That’s the problem: By dividing Americans up into the crudest “identity” categories and apportioning spoils roughly according to favored-population proportions, the administration is fostering disunity and resentment.
The ugly underbelly of this fake high-mindedness is its unstated premise that in the past the courts were systemically and incorrigibly unfair to women and minorities and that now it’s payback time. But to say that only a woman can give another woman real justice or only a black man can judge another black man is to undermine the very foundation of the American judicial system, which proclaims “equal justice under the law.”
Since the 15th century, the figure of Justice in Western societies has been blindfolded for a good reason — precisely to prevent empathy or identity from coloring the dispassionate application of the law.
Have we always lived up to that high standard? Manifestly not. But perfection should not be the enemy of the good. Nor should even egregious lapses like the Dred Scott decision undermine the entire system.
Further, “diversity” turns out to be pretty much meaningless. How “diverse” were Obama’s Supreme Court appointments of Sonia Sotomayor (the Court’s first “wise Latina”) and Elena Kagan? True, they added two women to the court, but they also added two more Ivy League lawyers — Yale (Sotomayor) and Harvard (Kagan).
In fact, every sitting justice studied law at either Harvard or Yale. There’s nary a one from a state university or even from another Ivy League school. With six Catholics and three Jews, not a single member of the founding WASP establishment sits on the court. How’s that for diversity?
You see how silly this gets.
Obama ought to take the ABA’s rebuke as a wake-up call, cease his social engineering and get back to nominating judges on merit, experience, judicial temperament, personal and professional ethics and scholarly achievement.
No one expects him to put conservatives on the bench; the right to name ideologically sympathetic judges comes with victory at the polls. But at least his liberals should be there for the right reasons — as jurists, not quotas.