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
(“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
. 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.
A front page article on judicial diversity in today’s Washington Post
includes this from CFJ’s
“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%
the legal profession – the pool from which judges are selected – or about 14%
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.