Thursday, June 9, 2011

Courting Discrimination: Senate Republicans Thwart Minority Judicial Nominees

I have written before, most recently here and here, about the crisis caused by the growing vacancy rate in the federal courts due to Republican intransigence, and how the Democrats have allowed the Republicans to stymie their tepid efforts to confirm President Obama's judicial nominations.  As the American Constitution Society points out, in an important piece which they have kindly permitted me to cross-post, GOP opposition to prospective federal judges has been most strenuous when the nominees are non-white and non-male.

Obstructionism Targets Minority Judicial Selections

Originally posted on American Constitution Society's blog, June 8, 2011.

President Obama’s judicial selections have faced unprecedented obstruction in the Senate, but it is the president’s minority nominees who have been the primary victims of the obstructionism, ACS Executive Director Caroline Fredrickson says.

“The president has tried to diversify the federal bench, but this effort has hit a wall of Republican obstructionism in the Senate,” Fredrickson said. “Professor Goodwin Liu, born in Georgia to parents who came to the U.S. from Taiwan, is only the latest example of Senate Republicans’ unwarranted opposition to non-white or female nominees. Professor Liu, by the way, would have enriched our federal bench. Of the 160 active judges on the federal court of appeals, there is not one active Asian Pacific American judge on the Ninth Circuit.”

Fredrickson noted that Senate Republicans have also slowed the confirmation process for women, African and Native Americans, and openly gay nominees.

“Jane Branstetter Stranch, for example, was confirmed to the federal appeals court bench last fall, but only after her nomination had suffered numerous delays for more than a year,” Fredrickson said. “This obstructionism is the cause of the increasing vacancies on the federal bench, with many reaching emergency levels, but it is also depriving our federal court bench of diversity that is long overdue.”

In a fall 2010 study issued by the Administrative Office of the U.S. Courts showed that the federal bench is still dominated by men. The study revealed that since 1998 the number of female judges has risen, but still significantly lower than male judges. The number of women judges, since 1998, has increased to 496 from 302. In 2009 male judges exceeded 1,500.

People For the American Way’s Marge Baker recently noted that a “review of the confirmation process faced by President Obama’s judicial nominees makes clear that there is a correlation between a nominee’s sex, race and ethnicity and how he or she is treated by the Senate Republican minority.”

Baker also highlighted Republican Sen. Charles Grassley’s comments deriding Liu during last month’s cloture vote. Grassley during a speech on the Senate floor said Liu wanted to turn America into “Communist-run China.”

Baker said, “Putting aside Sen. Grassley’s gross mischaracterization of Liu’s record, the idea that a Taiwanese-American legal scholar, supported by public figures across the ideological spectrum, can be casually tarred with racially charged accusations by a senior member of the Judiciary Committee is deeply disturbing. The fact that Sen. Grassley’s behavior represents just another data point in the GOPs attacks on women and people of color nominated by President Obama is even worse.”

Following an ACS event exploring the need to diversify the federal bench, University of Maryland School of Law Professor Sherrilyn Ifill told ACSblog that judicial decision-making is improved by judges “who represent and are reflective of the larger society.”

In a piece for the Root, Ifill also commended the president for trying to bring diversity, both racially and professionally, to the federal courts. As an example, Ifill noted the confirmation of then-U.S. District Court Judge Andre Davis to the U.S. Court of Appeals for the Fourth Circuit, and the nomination to the same Circuit of Judge James Wynn, whose legal background included work as a public defender.

“President Obama’s focus on bringing diversity to the Court is admirable,” Ifill wrote. “These candidates bring not only racial diversity, but professional diversity as well: Former public defenders like Wynn are rarely selected to serve on federal courts of appeal. The inclusion of former state court judges on the Circuit courts is yet another important infusion of diversity into appellate judicial decision making.”

Earlier this year the ACS Maryland Chapter hosted an event exploring the need for a diverse federal bench, with Judge Davis’s participation. Video of the discussion is available here.

For more news and commentary on the confirmation of the president selections for the federal bench, visit


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