At Law & Liberty, law professor John McGinnis has a superb essay on the theoretical and practical problems with the Left’s heavy emphasis on diversity, or representativeness, as a criterion in selecting judges. As he explains, that heavy emphasis views judges as policymakers and race, ethnicity, and gender as proxies for policy views. But “race, ethnicity, and gender are only a few of the factors that reflect a diverse polity, and progressives are generally unconcerned with any other categories.” Worse, “many if not most progressives count as ‘diverse’ only candidates with progressive views.” This shows that for many progressives “the definition of representativeness is simply instrumental to advancing their political positions.” Indeed:
The connection between politics and representativeness explains the reason that President Biden has announced that he will first nominate a black woman to the Supreme Court. On a straightforward representativeness ideal, this decision is odd. African Americans comprise 13 percent of the country and one justice out of nine is African American—a close approximation to the proportion of the population. In contrast, Asian Americans have no representation on the Court and never have.
But Justice Clarence Thomas is not a progressive.
As McGinnis discusses, a fuller account of representativeness would include family status, religion, and social class. But:
it is impossible to construct a representative Supreme Court or even a representative circuit court on any fair definition of the representativeness that might matter to policy. The numbers are simply too small. Indeed, focusing on one dimension of representativeness may make a court less representative on a different dimension.
McGinnis highlights the silver lining for conservatives to the Left’s obsession with diversity—a silver lining that I think is evident in how prominently Judge Ketanji Brown Jackson is discussed as a candidate for one of the existing D.C. Circuit vacancies and for the next Supreme Court seat:
If representativeness is an idea impossible to achieve in practice and unattractive in theory, it is at least heartening that the left’s obsession with a narrow view of representativeness will almost certainly undermine their goal of moving the judiciary leftward. Selecting on the axis of identity will make it less likely that the best and most articulate champions of progressive jurisprudence will get on the bench.
It is not, of course, that there are no such effective champions among people of all races, ethnicities, and genders. But the process of becoming a federal judge requires running a gauntlet that discourages many even from trying. Only lawyers of a certain experience are eligible. Home-state senators of the President’s own party have influence on nominees for both the district and appellate courts and senators of the other party have influence on the district courts. The process has become so polarized that even writings during college can be deemed disqualifying. Adding yet another screen of representativeness makes it even harder to get the most outstanding nominees.