FedSoc Blog

Do Obama’s “Diversity” Appointments to the Federal Bench Constitute Illegal Discrimination?

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by Publius
Posted March 07, 2013, 5:51 PM

John S. Rosenberg, author of the Discriminations blog, writes in a letter to the Washington Post:

In nominating “the first openly gay black man,” “the first Asian American lesbian” and “the first South Asian” to judgeships, The Post reported March 4, President Obama is “moving quickly to change the face of the federal judiciary” [“Obama remolds federal bench,” front page]. According to White House Counsel Kathryn Ruemmler, “Diversity in and of itself is a thing that is strengthening the judicial system.”

The White House appears not to know that taking race, ethnicity or sex into account to produce “diversity in and of itself” has been declared unconstitutional time and again by the Supreme Court.

Preferring candidates “for no reason other than race or ethnic origin is discrimination for its own sake,” Justice Lewis F. Powell Jr. wrote in his controlling Regents of the University of California v. Bakke opinion. “This the Constitution forbids.” In Grutter v. Bollinger, Justice Sandra Day O’Connor’s majority opinion held that the diversity the court approved “is not to be achieved for its own sake” but “is defined by reference to the educational benefits that diversity is designed to produce.”

But the courtroom is not a classroom; its purpose is to produce justice. What judicial benefits does the president intend to produce by attempting to “change the face” (and presumably the aggregate sexual preferences) of the federal judiciary? How will the justice dispensed by an openly gay black man, an Asian American lesbian or a South Asian be different, much less better, because of his or her race, ethnicity or sexual preference?

The fact that race, ethnicity or sexual preference should not disqualify anyone from service on the federal bench does not mean they should be qualifications or even “plus factors” for that service — unless, that is, we now want justice not to be blind but to be seen through race-, ethnicity- and sex-tinted lenses.

 

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