March 04, 2013

Halligan, Gun Rights & Racial Preferences

The Committee for Justice is scoring this Wednesday’s expected cloture vote on uber-controversial D.C. Circuit nominee Caitlin Halligan.  It will be the first judicial vote in CFJ’s newly established constitutional scorecard for Senators.

In a December 2011 press release (“Urgent: Gun Rights at Stake in Halligan Vote”) just before the Senate’s first cloture vote on Halligan, we warned:
"Never before have we used the word ‘urgent’ in this space, but Senate Democrats are just a few days away from putting Caitlin Halligan – a committed opponent of gun rights, an apologist for enemy combatants and an all-around judicial activist – on the U.S. Court of Appeals for the D.C. Circuit."
For details on Halligan’s disturbing record, see the 2011 press release. But the bottom line is that nothing about Halligan has changed in the fifteen months since she was defeated in the first cloture vote, except for President Obama’s stubborness in renominating her.
Perhaps Democrats believe that their campaign for increased gun control makes Halligan look a little less extreme this time around. To the contrary, we suspect it has made GOP senators more sensitive to the Second Amendment records of judicial nominees who, if confirmed, will determine the constitutionality of any new gun laws.
One exception may be South Carolina’s Lindsey Graham, who voted “pass” when Halligan was voted out of the Judiciary Committee last month. It’s worth reminding him that the D.C. Circuit, to which Halligan was nominated, plays a crucial role in national security, Graham’s highest priority.
Another exception may be Lisa Murkowski, the only Republican to vote for cloture on Halligan the last time around.  Identifying other weak points among GOP senators is more speculative, but we’re guessing that John McCain (AZ), Lamar Alexander (TN), Susan Collins (ME), and Mark Kirk (IL) could use some reminding about the importance of stopping Halligan.  Call (202) 224-3121 to be connected with any Senate office.
Racial preferences
A front page article on judicial diversity in today’s Washington Post includes this from CFJ’s Curt Levey:
“If [the Obama Administration is] talking about achieving [diversity] through aggressive identification of minority candidates, then that’s their prerogative. If they’re talking about doing it through preferences, having a lower threshold of qualifications for minorities, then I don’t approve. And it’s hard to know which they’re doing.”
After reading the Post article, it appears that the White House is engaging in racial preferences rather than just an aggressive search for minority candidates.  White House Counsel Kathryn Ruemmler, who oversees judicial nominations, tells the Post that “There’s a leveling-the-playing-field goal that is kind of a frame that overrides the whole endeavor.”  “Leveling the playing field” is typically nothing more than a euphemism for applying a lower standard to minorities candidates.  Worse yet, Ruemmler tells us that this system of minority preferences “overrides the whole endeavor” of nominating judges.
Supporters of preferences argue that they’re justified when used to correct an underrepresentation of minorities resulting from past discrimination.  Whatever one thinks of that “two wrongs make a right” rationale, it doesn’t apply here because, the Post reports, “Of the 874 federal judgeships, 39 percent are held by women and 37 percent are held by non-whites, according to data kept by the Federal Judicial Center.”
In other words, non-whites are not underrepresented in the federal judiciary.  In fact, going by the Federal Judicial Center’s figure of 37%, non-whites are overrepresented on the federal bench by a factor of about three. Minorities make up just 10% of the legal profession – the pool from which judges are selected – or about 14% of the pool if the White House limits its search to the nation's largest law firms.
Nonetheless, Obama’s affirmative action policy for judicial nominees continues in full force. The article reminds us that just six of Obama’s 35 pending judicial nominees are straight white men, according to White House statistics. So, despite making up roughly half of the legal profession, straight white men account for just 17% of the nominees.
Perhaps the Obama Administration has adopted the novel diversity theory of Nancy Zirkin of the Leadership Conference on Civil and Human Rights, who says in the Post article that “It’s very, very important that these courts reflect the diversity of what’s coming in terms of demographics” (emphasis added).  In other words, affirmative action should be used not just to achieve racial proportionality – a controversial proposition in its own right – but also to attain a racial balance that matches the future demographics of America.

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