Bush’s Court-Nominee ‘Diversity’ Is a Cynical Ploy

President Bush is no fool. He knows that to ensure his reelection in 2004 he not only has to hold his strongly conservative base but also raise his numbers among other groups as well -- Latinos, African Americans, Arab Americans, Catholics and women. If at the same time he can cause trouble for the Democrats with these groups, that doesn’t hurt either.

To that end, Bush is doing something that Republicans generally don’t like to do: He’s seeking broad diversity on the federal bench. In his first 14 nominations to vacancies on the U.S. federal appeals courts, the president has actively looked for candidates who do not reflect the traditional, mostly white male mien of the federal courts.

But don’t get excited. There is a catch -- and a cynical one at that. Although he’s chosen diverse nominees, Bush has also gone far, far out of his way to pick some of the most conservative nonwhite and/or female jurists in the nation. This, he hopes, will win him votes (although without really doing much for the groups he claims to be benefiting) and it also puts Democrats in the awkward position of being charged with racism and sexism if they oppose his nominees.

For instance, he nominated Miguel Estrada, a Latino described by co-workers as a right-wing “ideologue.” Estrada was forced by firm opposition to withdraw as nominee to the D.C. Circuit Court of Appeals.

Justice Janice Rogers Brown, Bush’s newest nominee for the prestigious D.C. Circuit, is an African American, a Californian and a woman -- but she too is a right-wing conservative who says the court decisions that upheld the New Deal mark “the triumph of our socialist revolution” and believes that age discrimination protections provide no public benefit.

Also out of the mainstream are Henry Saad, an Arab American from Michigan, nominated to the 6th Circuit seat; William Pryor, a Catholic picked for the 11th Circuit; and two women, Priscilla Owen (5th Circuit) and Carolyn Kuhl (9th Circuit). In fact, Charles Pickering (5th Circuit) is the only nominee who doesn’t fall into any of these categories.

Presidents have a right to nominate candidates who share certain ideological beliefs, broadly speaking. But this is just plain cynical. Because these candidates don’t reflect the ethnic and racial groups they come from and because (in searching high and low for, say, right-wing African Americans) Bush has had to sacrifice quality, Democrats -- who have long been the ones speaking out most strongly for diversity -- have felt obliged to oppose many of these nominees.

Democrats have argued that these appeals court nominees are fringe thinkers who should be withdrawn in favor of moderates so the courts will better reflect mainstream U.S. opinion. Unfortunately, they are talking to themselves. The White House ignores all substantive argument and fires back with name-calling: Opponents to Estrada were bashed by the administration as anti-Latino, just as critics of Pryor are denounced as anti-Catholic. Already, those opposing Brown are being labeled racist and sexist.

As a founder of the California Assn. of Black Lawyers, I know this pattern well. It was clearly visible as long ago as the appointment of Justice Clarence Thomas in 1991. And it’s dangerous.

Where performance is ignored and personal characteristics become the criteria, we are in very dangerous waters. Debate over judicial nominees should focus above all on the qualifications of the candidates, and on whether or not they will follow the law -- not upon immutable aspects like race, gender and ethnicity. Any other course demeans both the nominee and the federal court system.

If the personal factor is considered at all, it should be in relation to substance, so that the nominee reflects the prevalent views of the group. Estrada, for example, was demonstrably hostile to the positions of most Latino organizations. Similarly, very, very few African Americans subscribe to the ultraconservative opinions expressed by Brown. To court our votes cynically with these nominees is a condescending insult, suggesting that we haven’t got the sense to recognize our own best interests.

The Bush administration, however, is not relying on the facts of the matter but on the heat of the controversy. In urging the White House to name moderates so as to end the current rancor, Democrats have completely missed the point. The controversy is the point. Moderate nominees of any race or heritage would generate much less news coverage and therefore many fewer opportunities for the administration to accuse Democrats of prejudice against the nominees’ race, gender or religion.

In the twisted logic of this White House, voters will remember next November those nods in their direction, whether or not the nominees are ever confirmed. And from the Bush perspective, that will be success enough.

Robert L. Harris is a former president of the National Bar Assn. and a founder of the California Assn. of Black Lawyers.