Obama’s Diversity and Empathy on the Federal Bench

Posted on June 4, 2013 by Ruth O’Brien

In a bold move, Obama will send not one butthree nominees for federal-court judgeshipsto the Senate.  He is putting forth Patricia A. Millett, a longtime appellate attorney; Cornelia T. L. Pillard, a professor from Georgetown University Law Center; and Robert L. Wilkins, an African-American judge on the U.S. District Court for the District of Columbia.  A frustrated Obama hopes that in proposing three at once, he might break through the Senate obstruction.  But whoObama is nominating is not new:  Obama is returning to his policy of reform through inclusivity and diversity.

Only 29 percent of the federal-court judges Obama appointed in his first two years in office were white (and presumably straight) men. In Out of Many, One: Obama and the Third American Political Tradition, I explain that Obama privileges diversity and inclusivity in terms of “empathy,” or the language of caregiving.  One could assume, Obama argues, that this type of judge has “struggled” in life. “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.”

Obama’s definition of diversity achieves several goals.  First, it remedies systemic discrimination by the presidents who chose federal-court judges in the past. Second, by the process of including all those groups symbolized by their exclusion in the past, it does the reverse: It creates a new process of symbolizing their inclusion. And finally, it opens up the judicial decision-making process, ensuring that all voices are heard. And more voices—be those of African Americans, Africans, Mexicans, Hispanics, or LGBTers—are valuable, since they have different perspectives. And more voices, in high and low tones, of women who are also African American or Mexican, or gay white men, and even gay African men, should be heard or registered in such a chorus. As one law professor has written, Obama is “the first president to rely exclusively on the theory of substantive representation to justify his diversity policy for the federal courts.”