Diversifying the Bench

A recent Washington Post article tracks the recent crop of judicial nominees by the Obama administration, highlighting the historic nature of many potential appointees. Members of many racial and sexual orientation minority groups  have been nominated to occupy the numerous vacancies that went unfilled during the President’s first term. The administration’s stated goal in selecting these nominees is a bold, progressive push for “diversity in and of itself,” says White House Counsel Kathryn Ruemmler, as quoted in the aforementioned article. “It enhances the bench and the performance of the bench and the quality of the discussion . . . to have different perspectives, different life experiences, different professional experiences, coming from a different station in life, if you will.”

It seems as if the administration has confused the role of a lawyer with the role of a judge. As a representative of a unique, involved party, a lawyer who shares that party’s background and can articulate his client’s cause better, connect with his audience, and highlight what really matters to the people involved. Diversity among lawyers encourages effective representation of a wide array of parties involved in a lawsuit. A lawyer’s key job is to take a story, colored with individual experience, and make it applicable to a law founded on an abstract principle.

On the other hand, a judge represents nothing but the law of the land. The law of the land has no attachment to overcoming economic and social barriers (a specific quality sought after by the administration in their judicial nominees) nor any minority cultural background to represent. Its goal is to be as neutral and fair as possible, equally applying the law to all citizens through an unbiased process which makes justice as free from personal preference as possible. If anything about a judge’s personal experience colors his application of law in the case, he’s moved away from the role of impartial arbiter. The existence of effective representatives in lawyers saves our judiciary from trying to balance personal appeals and the rule of law.

A common response cites how important it is for our judiciary to reflect the demographics of our shifting nation. To whatever extent this is desirable, it certainly cannot outweigh the benefit of a legal system that promotes justice for all people. Whatever specific characteristics about a judge, there is no legitimate role for their personal background to play in their decisions from the bench. Is the answer to social issues to match victims up with judges who “feel their pain”? Any role a judge plays that is tied to his specific background undermines the rule of law by encouraging judges of different experience to apply the law in a new way to a select group with whom they closely identify. This cannot be all parties in all cases. Equal application of law will not survive under this judicial model.  The only role the legal system should play in social issues is to provide a consistent, fair outlet to enforce our communities’ codes. As the Senate considers a group of historic nominees, we should be asking whether their backgrounds should have anything at all to do with their role as a judge.