Diversity On The High Court: Does It Matter?

Harvard Law School Professors Charles Ogletree and Lani Guinier, along with former U.S. Attorney General Alberto Gonzales, discuss whether President Obama should take race, ethnicity and gender into account when nominating a replacement for Supreme Court Justice David Souter. They also share views on which professional and personal attributes make for an ideal appointment to the high court.

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MICHEL MARTIN, host:

We're going to bring in our voices now and we hope you'll be able to stay with us for a few more minutes. Joining us now is Harvard Law Professor Charles Ogletree. He is also the founder and executive director of the Charles Hamilton Houston Institute for Race and Justice. Also with us is Harvard Law Professor Lani Guinier. Welcome to you both.

Professor LANI GUINIER (Law, Harvard Law School): Thank you.

Professor CHARLES OGLETREE (Law, Harvard Law School): Good to be with you.

MARTIN: Professor Ogletree, when President Obama says he wants someone who has empathy, someone who can go beyond really the facts of the case, and understand the effect on people in the real world. What's he talking about?

Prof. OGLETREE: He's talking about a justice who has a sense about life and, in the constitution, not having to stop being effective hundreds of years ago, but has some true meaning today just like this court even with conservatives have decided cases like not to execute juveniles, not to execute the mentally retarded and other issues that are part of a living document. And he also talked about people who I think are going to be young, smart, independent and able to have a big impact on the court for decades. And I think, given the fact that he is a constitutional scholar, he is in a better position than anyone I can think of in memory to pick the right person to do the right job.

MARTIN: Professor Guinier, what about this question of gender or ethnicity. Should that be part of the discussion. What should the president's priorities be in making this choice.

Prof. GUINIER: Well, Michel, I think in some ways the way you're asking the question makes it seem as if this is the first time or one of the only times that a president would be considering things that might influence either their judicial philosophy as Alberto Gonzales has talked about. But even more important, the sense that this court is democratically legitimate in a very diverse country. So the question of race or ethnicity is not a question of whether a particular interest group or a particular ethnicity has a right to a seat on the court, but whether when the court issues a judgment, do the people of United States have confidence that that judgment reflects the best interests of the people and the most reasonable interpretation of the constitution on behalf of all of the people not just some of the people.

MARTIN: So, what role should gender or ethnicity or age or these other attributes play in this discussion, no matter who's making the choice?

Prof. GUINIER: Well, my point is that they play in naturally in the same way that regional representation played in the selection for Supreme Court justices during the 19th century. So you had justices from the south who own slaves and that was a big part of the decision by certain presidents to appoint them because they wanted to represent the southern interests.

MARTIN: What about this question of age. Professor Ogletree, I want to hear from you on this as well. Professor Ogletree mentioned age, someone should be, you know, smart, of course and talented, but also young. What do you think about that?

Prof. GUINIER: What do I think about that?

MARTIN: Yeah.

Prof. GUINIER: Oh, well, that's again a political consideration. Because just as Alberto Gonzales said, the appointment of a nominee, of a person to the Supreme Court is the president's most lasting and symbolic legacy. And the given the fact that the person has life tenure, if you want your legacy to extend over a long period of time, you want to have it represented by somebody who's going to live for a long period of time.

MARTIN: Professor Ogletree, we need to take a short break in just a minute. But when we come back, I'm going to ask you the same question. A recent Washington Post opinion piece which I'm sure you read entitled, "The Best Judges Obama Can't Pick" by Benjamin Wittes talks about how the drive to get diversity on the bench and also to extend the president's legacy might be disqualifying some very talented individuals because of their age or their demographics. And I wanted to ask you about that when we come back.

We're going to take a short break in a moment. We're going to continue this conversation with Harvard Law professors Charles Ogletree and Lani Guinier. We're also joined by former United States Attorney General Alberto Gonzales. I'm Michel Martin and this is TELL ME MORE from NPR News. Please stay with us.

(Soundbite of music)

MARTIN: I'm Michel Martin and this is TELL ME MORE from NPR News.

Coming up, President Obama's new education budget could cut more than $70 million in aid to historically black colleges and universities. We'll ask why he's contemplating that cut. And we'll talk about how the HBCs plan to cope. That in just a few minutes.

But first, we're going to continue our conversation about filling the upcoming vacancy on the Supreme Court. Justice David Souter's resignation earlier this month sparked intense debate over who President Obama should select as his successor. On most shortlist of potential nominees are several names that would represent historic firsts on the court - the first Latino justice, the first African-American woman. But this conversation has some observers worrying that too much attention is being paid to building diversity and too little to the judge's actual track record.

Joining us to talk more about this are Harvard Law professors Charles Ogletree and Lani Guinier. Also with us is former United States Attorney General Alberto Gonzales. Professor Ogletree, before we took our break, I was sighting a piece in The Washington Post opinion pages entitled, "The Best Judges Obama Can't Pick" by Benjamin Wittes who talked about how this drive for ethnic or gender diversity and age - a younger justice in part to counter the effect of justices Alito and Chief Justice Roberts may be causing the Obama administration to overlook some extremely talented and effective candidates. What's your take on this?

Prof. OGLETREE: Well, it's laughable. I mean it's an outrage that in the year 2009 we have one woman on the Supreme Court when women represent over 50 percent of the population. And it's laughable to think that white males are being excluded when they represent the majority of the court. They've always represented the majority of court and they were the only people on the court until Justice O'Connor became the first woman in 1981 and Thurgood Marshall, the first African-American, in 1967. So it's not - it's sort of an issue that's irrelevant.

And the reality is that this president is in a position to find the best person possible. It's not a popularity contest. We don't have anybody from Iowa. We don't have anybody from the large state of California. It's not that kind of representative democracy. It's a Congress of one, it's Barack H. Obama. He'll pick the right person. And I'm very convinced - knowing him and knowing his judgment - that we're all going to ultimately be pleased that he is diversifying the court. And the idea of race, gender, sexual orientation, all those issues are important. And I'm certain he won't ignore those in this choice or what I suspect will be other choices for the Supreme Court while he's president.

MARTIN: How does he decide what is most important since so many of these issues are important to someone? How does he decide to prioritize these questions?

Prof. GUINIER: It's pretty easy. If you think about how he put together his Cabinet and you think about the fact that he (unintelligible) and how can I impact something that will have an effect long after I'm gone. And that's how he prioritizes it in saying that there's talent in all shape, sizes and colors and genders. And I think that's going to be no surprise that he's going to find people who are extremely talented, extremely gifted, and who will be terrific justices for the next 30 or 40 years.

MARTIN: I wanted to ask our other guest, Judge Sonia Sotomayor seems to be a frontrunner at least in terms of media mentions, but she's also received a good deal of negative press. In a recent article in The New Republic, Jeffrey Rosen interviewed several clerks who, quote - anonymously former colleagues, one of them said that she was, quote, "not that smart, kind of a bully on the bench." And, of course, there's been a lot of response to this like people saying that these unnamed sources are inappropriate, and that you can always find people to criticize people anonymously.

I wanted to ask, Mr. Gonzales, you were the focus of this kind of media discussion about the possibility of your being named to the court, ultimately you were not. But I wanted to ask what role does this kind of mentioning play in the process? And I also wanted to ask if you feel that minority candidates are subject to special attention.

Mr. ALBERTO GONZALES (Former United Stats Attorney General): I think that, again, as I indicated earlier, this is a very important decision. And so, people are going to have very strong views about the qualifications of potential nominees. And if you are a frontrunner, it just comes with the territory, there's going to be an extra scrutiny on you. In a sense, quite frankly, these kinds of stories are helpful to the White House because you don't want to have the president nominate someone and be surprised by something in the person's background.

And so oftentimes, the White House will themselves leak a name or two in terms of people under consideration and see what kind of stories are generated. And so that kind of scrutiny I think is helpful to the process. I think it's not wise for a president to try to make a surprise pick. I think it's a good thing to have someone - the president nominates someone who people have thought about, people have considered, this is someone who's well-qualified. Their background has been vetted because there have been a source of speculation about potential nomination. So I think all this - this is actually quite helpful. Obviously, it's uncomfortable for a potential nominee, but this is the big leagues. And if you're going to serve on the Supreme Court, this is what you have to go through.

MARTIN: Professor Guinier, the same question to you. Back in 1993, when you were nominated by President Clinton as assistant attorney general for civil rights, your nomination was subjected to intense scrutiny, both political and media scrutiny. I wanted to ask what really you think the media coverage plays in this process.

Prof. GUINIER: Well, I frankly think that the media coverage is a distraction and that the real question, going back to what Charles Ogletree was saying is, what are the qualities that this person is going to bring to the bench that are currently missing from the bench? And one of the things that you haven't raised in terms of putting this in context is that Republicans lost the last election and yet a Republican president has nominated seven of the nine justices who currently serve on the court including Justice Souter. And so, the real question is what does President Obama need to do in terms of bringing some context and legitimacy to the court so that it is functioning in a way that is responsive to where the country is right now. That's number one.

Number two, I think that the most important thing that a justice appointed by President Obama will do is to be a passionate dissenter because frankly there are five reliable conservative votes on the court. And it's unlikely that whomever President Obama appoints is going to be riding a lot of very liberal majority opinions. But they can speak to a constituency of accountability to give people a sense that there is hope, there are alternative ways of mobilizing to change the rulings of this conservative majority.

So I think we are focusing on the wrong issues in terms of just the ethnicity or the race or the gender of the candidate. Although obviously those are important, I think they have to be seen in context, will this person speak in a voice that the people can understand and that's going to give them a sense that the court is actually speaking democratically or encouraging them to act democratically about the issues that most (unintelligible).

MARTIN: And when you say context of legitimacy, what do you mean? Are you suggesting because the majority of the justices were named by Republican presidents that they're not seen as legitimate by the country or…

Prof. GUINIER: No, I…

MARTIN: What do you mean?

Prof. GUINIER: …mean that because the majority of the justices were named by Republican presidents, you have a very conservative majority on the court without regard to whom President Obama picks to take the Souter, number one. Number two, two of the people that are considered part of the so-called liberal minority were appointed by Republicans and they are frankly moderate Republicans. These are not passionate liberals. So when we're thinking about the composition of the court, we really have to think about how the court reflects the composition of the country and not just the particular qualities of, you know, an individual justice in terms of his or her race or ethnicity for that matter.

MARTIN: I wanted to again sight the president's words when he said, I view the quality of empathy of understanding and identifying what people's hopes and struggles as an essential quality for arriving at just decisions and outcomes. I wanted to ask you, Attorney General Gonzales, do you think that - do agree with that? Do you think that's appropriate?

Mr. GONZALES: Well, I think everyone wants to think that their government officials are kind, compassionate people. And I think someone having that kind of image is certainly helpful in confirmation hearing. I do worry a little bit - well, I worry about justices on the court making decisions based on what they think makes them feel good. I don't think it's fair to expect society to anticipate the outcome of a case based upon what makes a justice feel good.

In essence, what you're saying, I think, is that - I don't care what the law says, I'm going to pursue an outcome that I think is fair and just. I'm going to rewrite the law. And I think that's dangerous. And so again, I agree that we want our justice to be compassionate, to be kind people. But I think their job as a member of the court, quite frankly, is to apply the law. And I think the notion that we worry about the - you know, I serve as a justice in the Supreme Court of Texas, and sometimes I reached decisions where I didn't like the outcome, but I felt that I had a duty to my oath of office to respect the words of the statute that I was interpreting.

MARTIN: Professor Guinier, what do you think the president means? And do you agree with his perspective on this?

Ms. GUINIER: Well, I think that what President Obama means is, and here I would take some issue with what Alberto Gonzales just said, that there are many cases in which the law is very clear and in which the weight of precedent moves in a very certain direction. But there are also many cases which are controversial, in which the law is ambiguous and in which the justices bring their own lived experience to the resolution of this ambiguity. And the best example I can think of is Ruth Bader Ginsburg bringing her experience as an advocate for women before she came on the Court. And then in the case of Lilly Ledbetter, issuing a very powerful, very passionate oral dissent, saying that the way in which her male colleagues had interpreted a provision of a congressional statute was obviously tone-deaf to the experience of women, especially women who are the first woman in an all-male workplace.

So this was a pay-equity case, and she was speaking on behalf of the experience of women that was not being considered, in her view, by her colleagues. And she called on Congress to change the law, to make it clear what it meant. And in fact that was the first piece of legislation that President Obama signed when he became president, the Lilly Ledbetter Fair Pay Act. And I think that's what he's talking about is somebody who understands the lived experience of ordinary Americans.

MARTIN: Okay, final thought from you, Professor Ogletree.

Mr. OGLETREE: Yes. First of all, the idea that empathy is a liberal term is crazy. What the president's talking about is someone who understands and can see from the point of view of someone different. And his model of a great justice was Earl Warren, a Republican from California, the former governor, who was responsible, in some respects, for the internment of 100,000 Japanese-Americans during the second World War. But he was empathetic because he, it is told, drove to Virginia with his driver, thinking about the Brown decision and came out the next morning and saw his driver in the car and said, what are you doing here?

The driver said, well, sir, I can't sleep at a hotel here because I'm black. It gave Earl Warren a sense about the reality of America. It wasn't just a technical case. It was about a person who could not be treated right and fair because of his race. And I think this president, given his own background, his history and his brilliance as a constitutional scholar, will pick the right person who will be empathetic but in a way that understands it. It's not liberal or conservative, it's empathy, understanding the other person's point of view. And I'm very excited about what he will be doing quite soon.

MARTIN: Charles Ogletree is a professor at Harvard Law School. And he's the founder and executive director of the Charles Hamilton Houston Institute for Race and Justice. He joined us from the university's studios.

Also joining us today was fellow Harvard law professor Lani Guinier - gee, I wonder if that's a sexist term - also a professor at Harvard Law School, Lani Guinier. She joined us by phone from California.

Here with me in our Washington, D.C., studios, the former attorney general of the United States, Alberto Gonzales. Thank you all so much for speaking with us.

Ms. GUINIER: Thank you.

Mr. OGLETREE: Thank you.

Mr. GONZALES: Thank you.

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For The Next Justice, Let's Have A Latino

Hector Sanchez

Hector Sanchez is the director of policy and research for the Labor Council for Latin American Advancement. Courtesy of Hector Sanchez hide caption

itoggle caption Courtesy of Hector Sanchez
Gabriela Lemus

Dr. Gabriela Lemus is the executive director of the Labor Council for Latin American Advancement. Courtesy of Hector Sanchez hide caption

itoggle caption Courtesy of Hector Sanchez

There are a number of issues to consider when replacing Justice David Souter on the Supreme Court, but the opportunity to diversify the bench by appointing a Latino is particularly compelling. Never in its 220-year history has a Latino sat on that bench.

The judicial branch is the least diverse of the three branches of government. Only four percent of federal judges are of Hispanic-origin. And, the current Supreme Court is one of the least diverse in history. Of the nine justices, eight are men. All were on appeals courts. Six of them graduated from Harvard Law School and only one of them is a person of color.

It is not just about having a Latino on the Supreme Court for the sake of it. It is about having someone on the highest court who can speak about the law as it affects Latinos and do so with the empathy and authority that can only come from first-hand experience.

The urgency to appoint a Latino stems from the unique challenges that Latinos — both U.S. citizens and immigrants — face today: a steady rise in human and civil rights violations; the rapid growth in detentions and subsequent criminalization of the community; invalid deportations; a drastic increase in hate crimes; a growing tide of racial profiling by local police; and de facto exclusion and bias in the public-policy and political arenas.

But, this is not about politics. The Supreme Court plays a central role in the legitimacy of the country, and the fact that we have never had a Latino hurts democracy. A diverse judiciary would increase public confidence in the legal system. It would also more subtly increase respect for the law by reducing the visible bias against minorities and by providing role models for minority children.

And, there is a significant pool of candidates from which to draw — a deep bench of women and people of color with strong legal qualifications, integrity and the judicial temperament necessary to make it through Senate confirmation.

If President Obama were to appoint a Latino or a Latina, it would send a powerful message similar to the one sent in 1967 when President Lyndon Johnson appointed Thurgood Marshall, the first African-American to serve on the Supreme Court. Until he retired, Marshall strove to protect the rights of all citizens, but particularly the voiceless. A little more than 50 years later, President Obama can break barriers once again. Our nation is stronger because of its diversity, but not always sensitive to injustice. This is not just a fight for Latinos, it is a fight for the heart of the entire nation.

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