Why Didn't Obama Nominate a Black Lesbian From Skokie?
Throughout the past eight years, President Obama has worked slowly but surely to bring greater diversity to the federal courts, the president assured law students at the University of Chicago Law School earlier this month. But when it came time to picking his third Supreme Court nominee, he told the crowd, "at no point did I say: 'I need a black lesbian from Skokie in that slot.'"
Why not?
Well, Maybe Not From Skokie...
Obama's comment came after an audience member cited the lack of minority and LGBT perspectives on the Supreme Court. The president pushed back, saying "that's just not how I've approached it."
Just minutes after his comment, Skokie started trending on Twitter. Internet commentators pointed out the difficulty of finding a black lesbian in the northern Chicago suburb, let alone one with significant legal experience. (Skokie, with only about 65, 000 residents, is known for its large Jewish population. It was under 10 percent African American in the 2010 census.)
A Chance to Diversify the High Court
But a black lesbian would have been a truly historic nomination. First, another woman would mean four female justices, the most ever. Another black justice would double the African American voices on the Court -- and maybe even provide another minority voice in oral arguments. (After speaking once this term, Justice Thomas has gone back to his traditional silence.)
And a lesbian! Well, that would be the first openly gay Justice ever. (There's long been talk about confirmed bachelor and former justice, David Souter, but he lost his chance. We kid, of course. And Justice Kennedy's honorific designation as the Court's first gay justice doesn't count either.)
Plus, it would have inspired a lot of Obama's liberal base.
Benefits of Diversity, Beyond the Numbers
And, of course, a more diverse nominee would have aided the Court ways that can't be measured by firsts, seconds, or fourths.
Shortly after President Obama's talk, Justice Sotomayor addressed the same topic with law students at Rutgers. Increased diversity allows the Court to see issues in a new way, she said, according to the Daily Targum:
To be able to represent all of these people, it's helpful when the justices have present among themselves as much and as varied of experiences as the country does. [It] is a personal ability to explain an argument that your colleagues haven't had that your voice can let them see in a different way.
Justice Sotomayor's own experiences growing up as a poor, minority woman in the Bronx were credited with helping save college affirmative action programs, for example. In the 2012 challenge to the University of Texas's race-conscious admissions program, Sotomayor penned a harsh dissent, emphasizing the majority's disconnect from the realities of minority students.
It was strong enough to sway the rest of the justices -- and it was never published. (Hers may have been a short-lived victory, though. The Court is expected to rule on the case again, very soon.)
Not Here to Lead, Here to Get out of the Way
But an extremely qualified, if traditional, candidate like Merrick Garland is much more President Obama's style. For, despite criticism from conservatives, the president doesn't view the federal court system as a place where change happens.
In "The Audacity of Hope," the future president "wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy." That is, the Court should not push the country forward, but it should also be willing to get out of the way when the democratic process forges ahead, as with Obamacare.
Merrick Garland, a moderate judge with a deferential attitude to agency decisions, is a great match for that philosophy.
And the President's view of the courts certainly doesn't work against more diverse nominees. Of the more than 300 federal judicial appointments President Obama has made, there has been a clear and consistent push to create a judiciary that better reflects America's demographics. That's resulted in the most diverse federal judiciary ever. Or, as the Washington Post's Wonkblog puts it, "the number of white dudes becoming federal judges has plummeted under Obama."
But when it comes to picking a Supreme Court justice, sometimes a white dude is good enough.
Related Resources:
- Who Said It: Merrick Garland or Judy Garland? (Mother Jones)
- Where Merrick Garland Stands Out: Guns, Criminal Law, Environment (FindLaw's U.S. Supreme Court Blog)
- Why Is There So Little Diversity Among SCOTUS Clerks? (FindLaw's U.S. Supreme Court Blog)
- Fisher Args: Breyer Fears, Kennedy Grouses, Scalia Plays Trump (FindLaw's U.S. Supreme Court Blog)