For The Left, It's All About "Diversity"

In separate expressions of dismay, written this past weekend, over President Bush’s selection for the Supreme Court, Anita Hill and Susan Estrich did their best to try to distract public attention away from what should be at issue when considering a nominee for the High Court, or, for that matter, the federal bench at any level.

Writing for Newsday, Ms. Hill bemoaned the fact that while President Bush had the “opportunity” to place another woman, and possibly a minority, on the high court, the person he in fact did nominate was neither. For her part, Ms. Estrich, whose column appeared at Newsmax.com complained that looking at “traditional legal criteria,” as President Bush did, does not necessarily produce a diverse group. The goal of the nomination, where these writers are concerned, should have been to “celebrate diversity.”

To “support” this belief, Ms. Estrich notes that a recent USA Today Poll, taken before the announcement of John Roberts’ nomination found that “65 percent of Americans thought it would be a good idea to name a woman, and 63 percent thought it would be a good idea to name a Hispanic.” Interesting how she fails to mention what the response was to the question of whether it would be a good idea to nominate someone who, regardless of race or gender, would be absolutely faithful to the Constitution – as written – in rendering their decisions. Instead, the chief concern of the left is over the possibility, as stated by Ms. Hill of “a return to an all-white-male Supreme Court.”

Setting aside for now the idea that certain seats on the Court must now be considered “reserved” for certain groups, the notion that merely looking at the legal and judicial qualifications of a candidate will fail to produce a diverse population of judges is one that fails to rise to the level of serious debate for at least a couple of reasons.

First, while such considerations are certainly no guarantee that the courts will be manned by people with a wide range of ethnic backgrounds, it is certainly no guarantee that they won’t either. Unless, of course, one is willing to assert that people with some backgrounds may not be able to meet the same qualifications as people with other backgrounds.

Second, diversity on the bench is a non-issue where the law is concerned anyway. The presumption of the Constitutional process for placing judges on the federal bench is that it will produce those who are dedicated to the concept of equal protection under the law. It shouldn’t matter to the average American if the Supreme Court is made up of nine white males or nine black females. If the law says what it says, and those on the bench are faithful to it, why should such minor differences as color of skin or gender matter to the person who seeks protection from those charged with applying it? Quite frankly, this writer would feel much more comfortable having a case decided by a Janice Rogers Brown than he would having it decided by a Steven Breyer, despite the fact that Mr. Breyer looks a lot more like him than does Ms. Brown.

When it comes to doing their constitutional duty, the courts should represent anything but diversity. There should be unanimity by those in such positions of authority on the supremacy of the written law as intended by those who write, or wrote, it. One would like to think that any person who stands in a courtroom can expect to be treated the same as anyone else, regardless of the race of the person on either side of the bench. Instead, what we hear from the Anita Hills and Susan Estrichs is that justice should be blind, but not colorblind.