Document Type

Article

Publication Date

2008

Abstract

This article explores the difficulties encountered in diversifying the federal bench and why the partisanship of the confirmation process decreases the diversity of viewpoints on the bench. Presidents value diversity in nominating judges. While Bill Clinton and George W. Bush had very contrasting political styles and judicial philosophies, the judges appointed by these two presidents now account for almost 80% of the current active federal minority judges. There has been progress in the area of descriptive diversity; currently 18% of the active federal bench is made up of minority judges according to data compiled from the Judicial Center. However, there is less diversity of viewpoints. Recent judicial behavioralist studies show that there is very little difference in the judging outcomes between white and Latina/o judges appointed by Presidents Clinton and W Bush. In hot button areas of civil rights, voting behavior of this cohort of white and minority judges is almost identical. This article posits that the unbridled partisanship of the confirmation process has resulted in less diversity among minority judges. Analyzing the confirmation wars of the W. Bush and Clinton administrations, this article posits that minorities face an additional burden in the confirmation process -- how they and partisan opponents depict a nominee's racial identity. Even if nominees do not trumpet their racial identity as a reason as to why they should qualify for ascent to the federal court, partisans will deploy meanings as to a nominee's racial identity as part of their strategy to either defeat or confirm the nominee. Minority nominees must perform a public racial identity that is appealing, and does not stir controversy. They must avoid triggering stereotypes that make them appear as being too liberal and therefore out of step with America; or conversely, of being too conservative and posing the threat of another Clarence Thomas. The article concludes that the confirmation process should not weed out diversity among minority voices, just as the process should not weed out judges who are too conservative, too gifted, or too prone to write down their thoughts.

Publication Citation

83 Ind. L.J. 1423 (2008).