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Diversity Comes to Judiciary

Bench Makeup Could Be Hallmark for Obama

Senate confirmation of the first openly gay judge last week could portend greater diversity on the federal bench, something President Barack Obama has made a priority.

The Senate voted last Monday, 80-13, to confirm J. Paul Oetken to serve as a federal district court judge in the Southern District of New York.

lThe chamber will begin its workweek by taking up the nominations of Paul Engelmayer to be a U.S. district judge for the Southern District of New York and Ramona Villagomez Manglona to be a judge for the district court for the Northern Mariana Islands.

"It's obviously been of great importance to this administration to ensure that historically under-represented groups have more representation on the federal bench and they have had some success in achieving that goal," said Caroline Fredrickson, executive director of the American Constitution Society for Law and Policy.

"I think it is important to have diversity in all sectors of government whether it be judicial, executive or legislative," Sen. Mark Pryor (D-Ark.) said.

Pryor and Sen. John Boozman (R-Ark.) last week recommended that the White House consider three women for a vacant federal judgeship in the Eastern District of Arkansas.

The three are Jane Duke, the first assistant U.S. attorney in Little Rock, Ark.; Kristine Baker, a partner in the Arkansas law firm Quattlebaum, Grooms, Tull & Burrow; and Colette Honorable, chairwoman of the Arkansas Public Service Commission. Honorable is African-American.

"They all have different backgrounds and bring good things to the table," Pryor said. "I think people, in my state at least, are fine with diversity on the bench. I think they see the value in it. They understand that it's good for the system and it's good to have a court that looks like Arkansas."

The Senator said he was unaware Oetken was openly gay until after he was confirmed.

"I think that tells you something about American society," Pryor said. "It's just not the issue it used to be."

As of July 18, Obama has had a total of 62 percent of his circuit and district court nominees confirmed, according to statistics compiled by the ACS. That compares with 70 percent under President George W. Bush and 84 percent under President Bill Clinton.

Conservatives contend that Obama's nominees have liberal judicial philosophies, the reason for his relatively low record on confirmations.

"With a number of the nominees, it has been questions about judicial philosophy and total years of experience — these sorts of things," said Robert Alt, deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation.

He pointed to the nomination of Goodwin Liu. The Senate rejected cloture on the 9th Circuit Court of Appeals nominee in May.

"He had an extensive written record promoting very liberal judicial views," Alt said. "When he came before the Judiciary Committee, he said he wouldn't rule from the bench necessarily the way he had written. That is always an unconvincing answer, quite frankly."

Fredrickson saw a lost opportunity.

"Goodwin Liu would have been the only Asian-American on the [Court of Appeals for] the 9th Circuit," she said. "That was disappointing in terms of diversifying the bench."

Fredrickson added, "The administration has also looked to increase the numbers of women, African-Americans, Latinos, Asian-Americans and Native American nominees."

According to the White House, Obama has nominated three openly gay judges: Oetken, former White House associate counsel Alison Nathan to serve as a judge in the Southern District of New York and Edward DuMont, a partner at WilmerHale, to serve on the U.S. Court of Appeals for the Federal Circuit.

Obama has nominated half of the Asian-Americans on the federal bench, the White House said. They include the first Vietnamese-American to serve as federal judge, Jacqeuline Nyen, who serves in the Central District of California; the first Chinese-American woman to serve as federal judge, Dolly Gee, also of the Central District of California; and the first Korean-American woman to serve as federal judge, Lucy Koh, of the Northern District of California.

Obama has also nominated Arvo Mikkanen to be a judge in the Northern District of Oklahoma. If confirmed, Mikkanen would be the only Native American on the federal bench.

"There are actually no Native Americans on the federal bench at all right now, so that remains an area where there has not been any success as of yet," Fredrickson said.

She added that Obama's judicial nominations are more diverse than his predecessors.

"President Clinton also nominated more women than other presidents, but certainly with respect to African-Americans, Latinos and Asian-Americans, President Obama has had a significant percentage of his nominees having been members of those groups," Fredrickson said.

Democrats argue that diversity on the federal bench is important because people bring their particular perspectives to the job.

Alt said he doesn't wish to impugn any president's motives for nominating minorities, but he added, "We would advocate for a race-neutral decision-making process, as much as would be possible."

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