Monday, March 15, 2021

Should Lady Justice be Blind to Identity When Judges Are Selected? A Response to Professor McGinnis

 By Eric Segall

At the Law and Liberty Website last Thursday, Professor John McGinnis of Northwestern University posted an essay about the relationship between judicial nominations, identity, and Lady Justice. McGinnis seems quite troubled by President Biden's pledge to appoint more diverse judges to the federal bench and the "left's obsession" with "representativeness." There is a lot wrong with this essay, which covers numerous broad topics relating to judging but in the interests of time and space I will just point out a few of the more outrageous claims in McGinnis' post.

He begins by pointing out that to legal formalists, the identity of the judge is or should be irrelevant to case outcomes. He says the following:

A formalist believes that the material of written law—the text as understood in the context of rules of interpretation and sometimes supplemented by precedent also applied according to formal rules—generates decisions. Thus, judges have little, if any, policy discretion in reaching decisions. To be sure, there may be easier and harder cases, but there is still no room for personal policy views in deciding them. If legal correctness of a more formal kind is the goal of judging, the focus in judicial appointments should be on the candidates’ legal acumen and legal fidelity, including a fierce determination to put aside irrelevant considerations like race, ethnicity, and gender (emphasis added).

McGinnis concedes that common law judges do make policy, act somewhat like legislators, and therefore "representativeness might have more of a role in state courts than federal courts, because state courts have common law responsibilities.... But federal courts have almost no common law responsibilities, being charged with interpreting constitutional and statutory text."

Most of McGinnis' post relates to the federal judiciary and his arguments that ethnic and gender identity should have no role in federal judicial nominations. But his descriptive account of what federal judges do and do not do is riddled with absurdity. Federal judges, especially court of appeals judges and Supreme Court justices, make policy and do not just decide cases based on prior written law.

Readers of this blog are probably all too familiar with my legal realist arguments along these lines but it should be obvious that, at least as a descriptive matter, text and other legal materials do not generate either Supreme Court decisions or appellate opinions where there is no binding Supreme Court precedent. As I've written before, text barely matters at all to the Supreme Court, as evidenced by the Justices' robust non-textual limitations on Congress, such as the anti-commandeering doctrine, Shelby County's infamous equal state sovereignty principle, the Court's Eleventh Amendment jurisprudence, and on the other side of the political ledger, the Court's made up federal equal protection clause. Moreover, the Court's convoluted first amendment jurisprudence is nothing more nor less than the Court's construction of complicated common law type rules that cannot in any sane world be linked to the "material of the written law." The premise of McGinnis' argument, that Lady Justice should be blind to identity because federal judges decide or should decide cases based on paper materials alone, is far removed from how such judges decide cases in real life.

Since McGinnis concedes that what he calls "representativeness" might be appropriate for common law judges, and since, as David Strauss has shown persuasively, the Supreme Court acts like a common law court, McGinnis' opposition to President Biden considering identity when nominating judges, fails on his own terms. But there is more to discuss regarding McGinnis' essay.

Throughout his piece, McGinnis refers to the progressive idea that identity matters to judging in insulting and demeaning ways as well as criticizing President Biden for promising to appoint a Black woman to the Supreme Court (there has never been one). But this linking of identity to judicial nominations is hardly a progressive idea. Perhaps McGinnis forgot that Ronald Reagan promised during his 1980 campaign to nominate the first woman to the Supreme Court, and then he did. Was it wrong in 1980 to believe that it was well-past time for a woman to have a seat on our highest Court? Of course not. 

Furthermore, if McGinnis thinks that it was just sheer coincidence that President George H.W. Bush nominated Clarence Thomas to replace Thurgood Marshall, and that identity had nothing to do with that decision, then I'd like to sell him a beautiful bridge in Brooklyn. Even more recently, President Trump did not hide the fact that he was always hopeful that he could replace Justice Ruth Bader Ginsburg with a conservative woman such as Amy Coney Barrett. Does McGinnis think gender had nothing to do with that decision?  Focusing on identity politics in judicial nominations is not in any way just the record of progressives, contrary to McGinnis' snide suggestions.

Should identity matter to federal judicial nominations? Although President Trump served only one term, he appointed almost as many circuit court judges as President Obama did in two terms: Obama appointed 55 in 8 years whereas Trump appointed 54 in 4 years. Of the 54 court of appeals judges Trump nominated, none were Black (Obama nominated 9). Trump did nominate a number of Black district court judges but far fewer than recent Democratic Presidents. As far as women go, 24% of Trump's judges were women as opposed to 42% of Obama's judges. 

Of course identity should matter to how our federal judiciary is staffed. I wonder whether Professor McGinnis cares that Trump appointed 54 appellate judges, with none of them being Black (one is Hispanic). These court of appeals judges, who have the final say over 99% of federal cases, wield enormous power and influence. The complete exclusion of Blacks from these positions for four years is quite simply unacceptable. Does McGinnis think there is not a single Black lawyer or judge in America who has the legal skills to be a circuit court judge? Does he think our federal judiciary should be only one quarter female?

Identity matters because people should have faith in government. When the Grutter and Gratz affirmative action cases were pending before the Supreme Court in 2003, former President Gerald Ford recruited a number of former Generals to join an amicus brief urging the Court not to abolish racial preferences at colleges and universities, including the elite military ones, because to "fulfill its mission, the military must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting." The Court cited these words in its Grutter opinion. The military needs a racially diverse officer corps for many different reasons, including the need for the American people to believe in the military. The same is true for federal judges.

Identity matters because federal judges deciding hard legal questions have, contrary to McGinnis' implications, enormous discretion, and that discretion is affected by values, politics, and life experiences, and not always in the ways McGinnis unfairly caricatures. As I've detailed on this blog, Justice Clarence Thomas has said that the motivations of university administrators who favor slight minority preferences in admissions are indistinguishable from the motivations of segregationists. Thomas admits that this view was formed in part by his experiences at Yale Law School in the early 1970's where he suffered great condescension. That experience undoubtedly affected Thomas' complete opposition as a constitutional matter to affirmative action. Who knows what views he would have on that hard issue had he had different life experiences? 

Life experiences generate values and values matter. It is still sadly true that the life experiences of whites and blacks are very different as are the experiences of men and women. It is of course important that judges possess top-notch legal skills but it is also important their life experiences and resulting values reflect the experiences of a diverse America. No amount of intellectualizing can justify the complete exclusion of Blacks from Trump's 54 circuit court nominations.

In a perfect world, Lady Justice might well be blind but in that fantasy world, she wouldn't just live the white male experience. McGinnis ends his essay by lamenting that we once valued the "rule of law not men." When I teach Marbury v. Madison, and cite Chief Justice's Marshall famous paragraph using that phrase, I point out that today it would be the "rule of law not people." That is not identity politics, that's democracy.

Federal judges have substantial discretion. People with different experiences will decide cases differently. I sincerely hope President Biden keeps his promise to appoint the first Black Woman to the Supreme Court. He should be applauded for that effort, not criticized.

9 comments:

  1. I appreciated the Prof. Nourse interview on the author's podcast

    https://news.gsu.edu/podcast/episode-27-professor-victoria-nourse/

    I also think the Supreme Court (sic) is a common law court* in practice (bound in some fashion -- limited as it might be -- by certain texts) and either way judges are humans. Identity matters there. I recall when Sotomayor was nominated that we had some stupid debate over "empathy" and I had a debate with one or more people on how empathy (not the same thing as one-sided sympathy either) can be a helpful thing.

    What "representing" means is not one thing either. It is a matter of profession, life experiences, part of the country, personal identity and a lot more. Someone like Amy Coney-Barrett, for example, provides certain things that someone else with her basic judicial views would not.

    And, you can examine that side of things to some degree. If all of this stuff isn't important what is with the standard process where we hear about the personalities and personal experiences of the nominees? No matter who is in power at the time.

    ---

    * "We have a dead Constitution! dead! dead dead!"

    E pur si muove

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  2. I keep coming back to parallels in policing.

    In a diverse community, there's a compelling interest in having the police force look basically like the population. And that's because it's the best way to establish and build trust in the trenches. Familiarity with varied experiences can be the difference between police who serve, vs those who occupy (think of a police force of all white males in an urban center, many of whom live outside the city).

    Why would interpretation of big, aspirational and indeterminate constitutional clauses be any different? The guard rails on those principles are broad, open to conflicting interpretations that are often reasonable. It's the infusion of human perspective that builds out the baseline - not some idiotic notion that it's just balls and strikes.

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  4. egarber brought up police departments in the academic affirmative action discussion and it is a well put comment.

    It brings to mind the Second Amendment -- the "militia" was thought to bring local people's perspective, and not just a select group, in "policing" and it was seen as an essential thing as compared to the possible alternative of a select group.

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  5. Good point Joe. You also triggered thoughts about Federalist 78 by Hamilton, regarding the judiciary:

    "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

    I don't think it's trivial that he speaks of the "people" as the fountainhead - as opposed to some fixed and formal object. That reference arguably makes the whole thing a human exercise.

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  6. The less said about having a military officer corps that resembles in even the slightest fashion the enlisted force, the less I'll have to demand that McGinnis get down and give me 25 pages (that's 20 for me and 5 for the Air Force). My own saving grace was the thick glasses, which kept me from looking too much like a recruiting poster for Captain America in the years shortly after the fall of Saigon, when a substantial proportion of the senior NCOs had been draftees.

    If the only kinds of disputes that you'll face as a CO — or judge — are between people who look just like you do, diversity possibly doesn't matter. That's... not congruent with reality, and hasn't been since the Founders wisely included the Religious Test Clause.

    My strong suspicion is that McGinnis has never had to encounter the messy problem of "disputes are between people, not contract clauses."

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  7. It's frustrating just how truly bad McGinnis' argument is. His arguments are the same tired arguments used against representation in any form of employment since Jim Crow.

    For instance, in his section on "Who is Representative?" McGinnis provides a variety of dimensions on which judges' representation could be measured. That's a reasonable argument, and I would agree with him that other dimensions like religion could be valuable to consider as well. Is McGinnis' conclusion then that we should aim to make the courts representative along a variety of meaningful perspectives? Nope. He concludes that because courts cannot be perfectly representative, we should not even try to make them minimally representative. Talk about making perfect the enemy of the good!

    McGinnis follows up this ridiculous conclusion with his real argument in the section on "Representation and Quality," which (reading between the lines) is that there are not nearly enough qualified jurists, and that restricting them on the basis of race (or any other aspect of representation) will mean hiring unqualified individuals. While I can't speak to the federal judiciary specifically, I can say that in most situations I have been in, there was often a surplus of qualified applicants, although those applicants may not be perfectly statistically representative of the US population as a whole. Selecting applicants with an eye to improve diversity is usually possible without blindly selecting unqualified applicants. Furthermore, the applicants who would be considered diverse are often actually stronger than their white male counterparts, likely because of the challenges they have already had to overcome.

    One of the most important aspects of diversity that McGinnis completely misses is that diversity is a long game. 50% of medical school graduates today are female, but that wasn't a change that happened overnight, it took generations. Each generation saw more female physicians, which caused young women to see themselves as potentially becoming doctors, which resulted in more women applying to medical school, which resulted in more women being accepted, which resulted in more new women physicians. The federal judiciary is currently undergoing the same kind of change, and it will similarly take generations to become truly representative. Maybe there currently aren't enough qualified applicants to be "perfectly diverse," if such a thing is even possible, but President Biden is right to give things a nudge in the right direction by considering diversity, in all its dimensions. The belief that only white males are qualified, as McGinnis seems to strongly imply, is incredibly outdated, and hard to believe coming from anyone considered a serious thinker. One would have thought that Justices Marshall, O'Connor, Thomas, and Ginsburg would have put this idea to rest years ago, but apparently not.

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