November 05, 2009

Southern White Males Need Not Apply to Circuit Courts?

Yesterday, President Obama nominated Albert Diaz and James A. Wynn of North Carolina to the Fourth Circuit of the second highest court in the land, the United States Court of Appeals. Their nominations raise two interesting questions:

1) Do Democrats view southern white men as unfit for the U.S. Court of Appeals?

In June of 2007, as Senate Democrats attempted to block Fifth Circuit nominee Leslie Southwick of Mississippi – with Sen. Barack Obama leading the way – Committee for Justice executive director Curt Levey noted that Southwick’s biggest problem was being a southern white male:
“Seven times President Bush has nominated a southern white male to the appeals courts, and seven times Senate Democrats have tried to block the nomination. Worse yet, each of the seven have been subjected to a campaign of personal destruction. With one exception … the attacks focus on charges that the nominee is insensitive to the rights of minorities, women, gays, and/or the disabled. Democrats and their allies cynically play to the stereotype that southerners are racist or otherwise bigoted.”
Several months later, as the end of the Bush Presidency drew closer, Senate Judiciary Chairman Patrick Leahy began to block nearly all circuit court nominees by denying them hearings, thus ending the debate over whether Democrats were singling out southern white males for disfavor. However, yesterday’s nomination of Wynn and Diaz once again puts a spotlight on the issue.

Their nominations bring to six the number of U.S. Court of Appeals nominees President Obama has named to the southern circuits – the Fourth, Fifth, and Eleventh – and to the handful of southern seats outside those circuits (note that circuit nominees virtually always hail from the state to which the corresponding circuit seat is informally assigned). None of these six southerners is a white male. So once again we have to wonder whether a Democratic bias against southern white men serving on the federal appeals courts is at work. (In addition to Diaz and Wynn, the six include Andre M. Davis, Barbara Milano Keenan, Beverly Baldwin Martin, and Jane Branstetter Stranch).

Does President Obama or his advisors believe that southern white men are likely to be bigoted, making them unfit to serve on the second most powerful court in the land? We hope not and readily concede that it is difficult to know if any such stereotype lurks in the White House. The absence of southern white male circuit nominees could, instead, be an innocent coincidence or the not-so-innocent byproduct of a judicial selection process dominated by racial and gender preferences.

But regardless of the reason for the pattern we noted in 2007 and again now, even the appearance that Democrats are biased against southern white men is a potential problem for the party generally, and for President Obama’s goal of transcending old racial divisions. At the very least, the pattern merits further thought and discussion, both outside and inside the White House.

2) Should the GOP apply a tougher standard to an Obama judicial nominees when the vacancy resulted from Democrats’ obstruction of Bush nominees?

President Obama’s four nominations to the 15-seat Fourth Circuit – with more to follow – will soon transform this reliably conservative circuit into a solidly liberal one. The game-changing opportunity presented by five Fourth Circuit vacancies is a direct result of Senate Democrats focusing their obstruction of President Bush’s appellate nominees on this circuit more than any other.

In 2001, George W. Bush nominated U.S. District Judge Terrence Boyle to one of the North Carolina Fourth Circuit seats filled yesterday by Obama. Boyle’s nomination languished for more than five years, while Senate Democrats successfully prevented him from ever getting an up-or-down vote. Another Bush nominee to the Fourth Circuit, William Haynes of Virginia, languished similarly for more than three years. And three of President Bush’s 2007 nominees to the circuit – Rod Rosenstein, Bob Conrad, and Steve Matthews – had yet to be given a hearing by Chairman Leahy when the President left office in January 2009.

Recall that in the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. Obama could have returned the favor by re-nominating one or more of the five highly qualified Fourth Circuit nominees mentioned above. Instead, he has chosen to maximize the partisan rewards reaped from the Democrats’ obstruction of Fourth Circuit nominees.

As a result, Senate Republicans have to ask themselves a question. Should they ratify the Democrats’ cynical power grab in the Fourth Circuit, or should they do everything in their power to slow it down?

We think the answer depends on whether the GOP’s opposition to Fourth Circuit nominees is principled. Republicans should not engage in the politics of personal destruction that reached its zenith with Senate Democrats’ treatment of Fourth Circuit nominees. More generally, the GOP should not block these nominees simply to prove they can be as obstructionist as the Democrats.

Instead, Senate Republicans should subject Obama’s Fourth Circuit nominees to tougher, more thorough and more time-consuming scrutiny only to the extent that it sends a useful message – namely that neither party should be allowed to cynically and easily reap the rewards of its own obstruction. If consistently delivered over the long term, it’s a message that could help to tone down some of the hyper-partisanship that has infected the judicial confirmation process.


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