President Obama is nominating women and minorities to the federal bench in unprecedented numbers. But apparently, not everyone is happy about this newfound commitment to judicial diversity. According to Stephen Presser, professor of legal history at Northwestern, “[w]hen you make law representative of America, you are undermining the objective” of a fair and impartial judiciary. . . . What you’ve got here is the opposite of John Roberts’s notion that judges ought to be umpires." To "send a message of inclusiveness . . . is a dangerous move, and it makes the court more political than it needs to be."
Now, I have been interviewed often enough to know that statements can be taken out of context, words twisted, and who knows what else. And yet, this statement, standing alone, comes off as nothing short of bizarre, particularly coming from a law professor. You don't even have to agree with me that judicial diversity in fact furthers the value of judicial independence in order to find this statement puzzling. Assume that we agree that judicial diversity "make[s] law representative of America"? I would have assumed that this representativeness was a good thing, particularly in light of studies of judicial behavior that posit judges as influenced by myriad factors, including their politics and experience. How would recognizing what judges in fact do undermine in any way the fairness and impartiality of the judiciary?
Worse, I had really thought that Roberts' analogy of judges as umpires was nothing more than a rhetorical device for the moment, aimed at those on the Senate and the public at large predisposed to agree with him. Nobody, I thought -- and I do mean nobody -- with any experience reading cases and studying courts could seriously believe the analogy had any basis in reality.
Clearly, I was wrong.
Finally -- and maybe I am being unfair on reading the statement this way -- but how could sending a message of inclusiveness ever be "a dangerous thing" and make the judiciary "more political than it needs to be"? This is one paper from Professor Presser, defending this conclusion, that I would love to read.
Let me see if I understand: appointing judges in the mold of Alito and Roberts furthers judicial fairness and impartiality, but appointing judges in the mold of Sotomayor and Kagan is "dangerous"?
I am almost speechless.