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Judicial Bean Games
Race, sex, and the parties.


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According to the Washington Post, “Some GOP officials said this week that the White House has a strategy of nominating Republican women, Hispanics and African Americans for lifetime federal judgeships partly to force Senate Democrats to appear to oppose diversity if they block conservative choices.” This “will help the [Republican] party reach minority voters.”

But the bean-counting is not just about bashing Democrats, declare White House officials. It also reflects “Bush’s commitment to expanding gender and racial diversity on the federal bench,” says the Post, quoting one such official: “‘The diversity thing is a constant with him.’” Indeed, “Legal sources said the White House is so focused on finding minority nominees that after officials have exhausted their personal networks in particular geographic areas, they have scoured the directories of federal and state judges, and even the rosters of major law firms, in the quest for qualified minorities they may have overlooked.”

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It’s too bad that neither party wants to admit the good news, which is that neither of them has any problem with female or minority judges. It was dirty, low politics for Democrats to say or insinuate that Republicans were racist or sexist when they voted against Clinton nominees who happened to be black or Latino or female. Republicans want non-activist judges and don’t want activist ones; they couldn’t care less what color or sex they are, and the Democrats know it. (Most Republicans have long believed what Nan Aron, president of the liberal Alliance for Justice, has belatedly and ironically acknowledged, namely, that it’s the beliefs of judges that matter, not whether “nominees have been diverse in terms of sex and race.”)

Democrats are not racist or sexist either, but it is true nonetheless that race and sex matter more to them than to the Republicans. Democrats have no objection to minority or female judges per se, but the case can be made that they are more enraged by minority or female Republican nominees than by white male ones, for two reasons. First, it puts the lie to their political article of faith that they alone can speak for women and, especially, minorities. How can they peddle that message if there are a lot of very visible Clarence Thomas types out there? Second, they know that it will be harder for them to play the race card (which they love to deal to any Republican nominee) against, say, a Miguel Estrada, if and when he’s nominated to the Supreme Court, so it’s best to keep him off a lower-court stepping stone.

But perhaps the relative praise that I have given the Republicans so far should be written in the past tense, at least if the Washington Post is to be believed. (To be fair, Republican presidents Reagan and Bush 41 weren’t perfect, either.) Bush is bean-counting, too, and he’s also planning to play the race-and-sex card. Of course, this will probably backfire in the long run. If it becomes accepted that, when you vote against a nominee who happens to be black, it must have been because he was black, then Republicans are going to get beaten over their heads more than Democrats. The unhappy truth is that there are more people prepared to believe that Republicans are racist and sexist than are prepared to believe that Democrats are, and there are a lot more minority and female candidates that the Democrats will be willing to put on the bench than the Republicans are.

In deciding to play this silly game, perhaps the Bush administration was simply making a virtue of necessity. The White House knew that if it didn’t nominate a judiciary that looks like America, the Democrats would harp on that, so Bush figured he’d send up a Rainbow Judiciary, and if the Democrats didn’t confirm them, then Republicans would make race an issue. Two can play this game, and one consequence is that racial politics becomes ever more deeply ingrained.

The other reason that both parties have injected race and sex into the judicial-confirmation struggle is that neither one is entirely confident arguing about what is really at stake: the judicial philosophy of the federal bench. Republicans want non-activist judges (i.e., judges who won’t ignore legal texts, like the Constitution), and Democrats want activist judges (judges who will substitute their own policy preferences for those legal texts). The trouble is, the Republicans know that their approach is vulnerable to rhetorical attacks, and the Democrats know that theirs is unprincipled. Democrats will assert, for instance, that the textual approach means that abortion should not be a constitutional right (and they’re correct), and Republicans will assert that judges shouldn’t just make up the law, even if it’s politically popular law (and they’re correct, too). Since both parties sense, justifiably, that a debate strictly on judicial philosophy could hurt them politically with some key groups, they’ve decided to focus on red herrings — such as who’s racist and sexist, who wants a judicial shortage, who’s obstructionist, and so on.

It’s all rather depressing. The control of the judiciary is extremely important, and there is no doubt that the country will be much better off with a non-activist bench. But the Democrats disagree — vehemently — and will do anything to stop Bush. The only solution may be to have 60 Republican senators.

Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.



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