On Judicial Diversity, I'm with Clarence

by Matt Kelley

categories: Race, Supreme Court

Published October 29, 2009 @ 07:16AM PT

In a talk last week at the University of Alabama, Supreme Court Justice Clarence Thomas said he wants to see more diversity (geographic diversity, at least) on the Supreme Court, and presumably, on lower courts throughout the land.

"My goal is to have a court that is fair, and I think it's fair when we are fair in selecting people from all parts of the country, from all walks of life," Thomas said. He went on to say that he prefers to hire clerks from modest backgrounds.

It's an odd sentiment to hear from the mouth of an outspoken opponent of affirmative action.

To his credit, Thomas has stuck to his philosophy of supporting people who may not have had a gilded path to the Ivy League. His beef is with racial quotas; he does support casting a wide net and looking past the traditional (white, male, wealthy) candidates for law schools, clerkships and the federal bench. But if he really supports diversity on the federal bench, isn't he splitting hairs?

I wrote recently that President Obama is off to a strong start on racial and gender diversity with his first 16 picks for the federal courts. In a great post yesterday at the Brennan Center, Ciara Torres-Spelliscy expanded on this meme:

With 96 federal judgeships vacant, President Obama has a golden opportunity to continue to diversify the bench in many dimensions. As Professor David Fontana has suggested, President Obama could grow the ranks of future legal leaders by appointing younger judges to the federal bench. As Justice Thomas suggests, good judges can come from all over the country. But race and gender do still matter.  So Obama should draw from more than the pool of sitting judges since the feeder courts at the state level often lack diversity. As the Brennan Center has pointed out, judicial diversity is in need of improvement, since 24 state supreme courts are all white and two are all male.

Obama should seize this opportunity, and there are signs that this is exactly what he's beginning to do. If getting a more diverse federal bench means passing over a few well-qualified white men from Ivy League schools, so be it.