The Stuff of Legacy — Obama’s Filibuster Victory Means Diversity Can Trump Ideology


Obama’s victory yesterday, with the Senatechanging its filibuster rules, gives him the best chance yet for a lasting legacy — diversifying the federal bench.  If past behavior predicts future, Obama will now stuff the federal courts full of judges based on diversity, not ideology.

I found in my book Out of Many, One that “only 29 percent of the federal court judges Obama appointed in his first two years in office were white, presumably straight, men.”  A full 71 percent of the judges were “other” – that is, other than SLAMs or SCAMs, who have forever dominated the federal judiciary.

To fill a large majority of the bench with others, the Obama administration reached far outside the halls of the judiciary, talking with minority and women’s groups to see whom they could recommend. They hoped to “negotiate the selection gauntlet,” one law professor relayed, going so far as proposing “that officials and their panels adopt special initiatives to recommend persons of color and women.”

Obama is counting on the new federal judges to be “norm generators.” Women, and people from all races, reflecting all sexualities, will have a chance to create norms.

What is more, if Obama does indeed pass the presidential torch to Hillary Clinton, he can count on her maintaining this diversity on the court.  The Tea Party must be livid — purple, really.  And Rush Limbaugh must be apoplectic.  No doubt absurd “reverse affirmative action” accusations about the federal judiciary will abound.  Let them.

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About Ruth O'Brien

Professor Ruth O'Brien, The Graduate Center, The City University of New York (CUNY) & Honorary Unaffiliated Academic Book Series Editor for The Public Square, Princeton University Press & Heretical Thought, Oxford University Press, USA Last book: Out of Many, One: Obama & the Third American Political Tradition (U of Chicago 2013). Nickname: Professorette by Rush Limbaugh (see

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