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Judge Sonia Sotomayor was confirmed as the 111th justice of the Supreme Court today — the first Hispanic and the third female to serve on the court. Meanwhile, Senator Ron Wyden has been criticized for recommending five straight, white men to open federal judgeships. After the outcry from the legal community he added one more, Washington County Circut Court Judge, Marco Hernandez. But concern remains. Mark Johnson wrote on Blue Oregon:
I applied for these appointments, and I was not granted the courtesy of an interview. Based on my qualifications and the makeup of the committee, I presume that the reason is either (1) because I have represented unpopular causes on behalf of my community or (2) because I am "too gay." I hope that the other candidates will speak up as well. In the meantime, I hope that "Ron" will do what he should have done when he received the committee's recommendations, which is to reject them and start over.
In response to the criticism, Wyden's chief of staff Josh Kardon said:
Senator Wyden had nine appointments to the judicial election committee, and six of his nine choices were women and people of color.... [A]fter devoting well over a hundred hours each to the task, they voted for the individuals who they believed were best qualified for the federal bench. No one was more disappointed to see no women, no minorities, and no representatives of the GLBT community merge from this process than Senator Wyden.... Senator Wyden is 100% committed to fighting for equality for all of America's people, and recognizes that the struggle for equality must continue every day at every level of public and private enterprise. He has chosen precisely four federal judges over the course of his career. Of those four, one was the first African-American judge ever appointed to the Oregon bench and two were the first two women appointed to the Oregon bench.
Apart from Senator Wyden's decisions, how important is diversity among judges? Have you ever stood before a judge and felt that race or gender or sexual orientation played a factor in understanding or decision making? Or do you believe that the law is blind to these factors? How important is diversity among our judges?
GUESTS:
- Heather Van Meter: Co-president of Oregon Women Lawyers
- Josh Kardon: Chief of staff for Senator Ron Wyden
- Hala Gores: Attorney, former chair of the Multnomah Bar Association Committee to Advance Equality in the Law
- Rives Kistler: Associate justice, Oregon Supreme Court
Tagged as: gender · law · race
Photo credit: lumierefl / Creative Commons
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In any situation where decisions need to be made by humans, either individually or as a group, it has been my experience that it is best for the decision makers to have a broad range of experiences, knowledge, and exposures. In a group like a panel of judges, assuming we draw from a pool of highly qualified candidates, having people from varying cultures, classes, geographies, genders, etc, seems like a good goal. But depending on our specific knowledge of the people involved, this may not be the only criterion. My goal would not be specifically for judges to match the population they serve, but to have the collective wisdom to make just decisions under the law.
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I have been startled at the overt racism that had been demonstrated since the nomination of this most recent supreme court justice. The ethnicity or gender of this person is irrelevant to the position. Further should it ever be a consideration by this Justice in a decision this person (or any) must recues themselves, ethically.
To continually point out that, this person is the first of this gender or that ethnicity is nothing short of racism, UNLESS it has something to do with the job; in this case it does not. -
The points you brought out in your comment do trouble me. But I think there is a difference of positive and negative that might be important. If you chose a judge because you feel their race/ethnicity will add something good you are allegedly using race in the positive. This is different then not choosing a candidate because of race, because you feel that race is somehow inferior.
I realize by choosing race in the positive, you are excluding other candidates by proxy because of their race, but you are not exactly (I think) saying something bad about their race either. You are not saying we are not picking you because "we think white people are bad or inferior." Perhaps, the intent is important and maybe there is some conceptual difference in that, that makes one kind of racism different from another.
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Josh Kardon misspoke when he described Senator Wyden's appointment of Ann Aiken to the federal bench as the "first woman federal judge in Oregon." She is not. Judge Helen Frye preceded Judge Aiken.
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A significant problem is Oregon begins not with the Bar and legal organizations like OWLS. It really begins with the clients. The business community here talks about diversity but in the provision of services the business community does not insist on diversity in their professional providers.
As a result when you have a selection like this that considers candidates exerieince, although the pool was relatively diverse, the diverse candidates are outstripped by the white male candidates in terms of the quality and depth of their experience.
Women are better off in this circumstance than people of color. So the focus should be broader than just gender balance.
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I think Mark Johnson contradicts himself.
He says: And to tell us that the process was inherently fair because there were women and minorities voting is, bluntly, sexist and racist. It's judging individuals based on stereotypes and it is wrong.
But Mr. Johnson commits a similar error when he says: Based on my qualifications and the makeup of the committee, I presume that the reason is either (1) because I have represented unpopular causes on behalf of my community or (2) because I am "too gay."What is Mr. Johnson's point? That because he is gay he was not chosen. But he is also saying because there were no minorities chosen then there must be something wrong with that choice. Isn't suggesting that a group of white men can't do the job the same as "judging individuals based on stereotypes and it is wrong?"
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Also extend the conversation to include why prosecutors offices are not racially diverse ( Given Josh's comment about needing prosecutors of color to apply for the US Atty Position)
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What bothers me about this whole discussion is the assumption that diversity of opinion, thought process, background, or whatever the heck it is we supposedly are seeking, is reflected in, and only in, diversity of sex, race and sexual preference. That seems to assume that all white males think alike and that all gay women think alike, which I doubt is the case. It also excludes all of the other demarcations one can make in society that seem equally likely to reflect diversity of opinion, thought, etc. -- income, geographic origin, marital status, family size, pet ownership, hobbies, sports, reading interests, hair color, etc.
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If court decisions were based solely on law--and perspective didn't factor in--all "opinions" would be unanimous. The problem is dominants in society operate from the assumption that their world view is golden; they enjoy not only advantage but the power of enforcement. Most people are accustomed to going along with authority--how could they know any different? All of our institutions are all based on top down authority. We are not all equal if we rely on status quo.
Diversity matters.
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No one seems bothered by the age clustering of the candidates. The youngest judge candidate is (probably) older than the median age of the populace. Don't children and retired people count? (/satire)
I object to the premise of this program, in that the ONLY objection to any of the selected candidates is their color and gender.
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"I object to the premise of this program, in that the ONLY objection to any of the selected candidates is their color and gender."
Bardly,
I disagree that that was a premise of the program. We based the show on an existing conversation, one sparked by people who indeed had a relatively narrow set of objections to the apparent homogeneity of the recommended candidates. As you note, they were focused on race and gender.
It's actually worth noting that in the course of the show we also ended up talking about religion, sexual orientation, and eve geography, with Wyden's chief of staff mentioning his disappointment in the fact that four of the five candidates, in his words, live within five miles of each other.
But I hope we didn't imply that those would be the ONLY objections someone might have to the candidates. For one thing, we didn't really touch at all on judicial philosophy!
Dave
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I missed the program this morning, but I hope there was some discussion of the Oregon Judicial Department, in addition to federal judges.
On a state level, judges from county-level circuit courts on up to the Supreme Court are either appointed by the Governor, or elected by the public (depending on the timing of a vacancy).
In 2006, I managed Judge Albrecht's campaign for a position on Multnomah County circuit court. In the course of that campaign, I repeatedly encountered confusion about why judges are on a popular ballot to begin with – and how a voter should go about assessing the quality of the candidates.
My personal conclusion was that the current system is pretty good. Yes, we often wind up with candidates that are not thoroughly vetted by the public that elects them; and yes, political forces can influence that equation. But there are also extensive politics behind appointments. I believe there is an appropriate balance that results from both the public and the Governor having influence over the composition of the OJD.
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Josh Kardon said:
"There is a disconnect in getting women more fully active in the process. We need at a very early stage, get out in front of women lawyers all across the state and get them to envision themselves competing for these jobs. I can tell you that probably six of the men who made it to the final eleven had for decades envisioned themselves as federal judges... [W]e need to actively encourage women all across the state to think about preparing their careers and their resume's to serve on the federal bench."
Do we really only want candidates who have "for decades envisioned themselves as federal judges" and "prepare their resumes" accordingly? I think Mr. Kardon's comments highlight the real problem with the selection process. It's not the racial/gender diversity of the committee, it's that only politicians seem to get selected for these positions.
What about the lawyer who devoted her career, not to her own personal ambition and self aggrandizement, but to being a good lawyer for the sake of her clients? Wouldn't that lawyer make a better federal judge than the politician?
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Comments are now closed.
I found some irony between the choice of Sotomayor, and then our response to her famous quote. Because she was clearly nominated because of race and sex---which no one disputes; but then when she spoke about her racial background being preferable (under whatever circumstance) we took issue, but yet we chose her because her race was "preferable" in the sense it was what we needed in a candidate.
Although, we justify this preference because it gives the appearance of equity by having a diverse court. Equity in what though? The racial/sexual makeup of the court? Or in how that makeup will effect the courts decisions? But then we box ourselves into a corner because race isn't suppose to matter at all, there isn't suppose to be a difference. So are we saying judges are that superficial that they need race, sexual, or cultural background in order to think clearly about the law or to treat cases equitably. I think this need to balance the court says something terrible about us as a people: We can't trust ourselves!