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For Obama, diversity but delays on judicial confirmations

By John Schwartz

New York Times News Service

Published: Saturday, Aug. 6 2011 10:31 p.m. MDT

President Barack Obama made history when he nominated Sonia Sotomayor, the first Hispanic justice on the Supreme Court. He did it again with his second nominee, Elena Kagan, raising the number of women on the nation's highest court to three.

And Obama has also added judicial diversity further down the federal ladder. His administration has placed a higher percentage of ethnic minorities among his nominees into federal judgeships than any other president.

So far, Obama has had 97 of his judicial nominees confirmed — compared with 322 for President George W. Bush and 372 for President Bill Clinton, who each served two terms. So far in Obama's presidency, nearly half of the confirmed nominees are women, compared with 23 percent and 29 percent in the Bush and Clinton years.

Some 21 percent are black, compared with 7 percent under Bush and 16 percent under Clinton. And 11 percent are Hispanic, compared with 9 percent under Bush and 7 percent under Clinton. Of the nearly two dozen nominees awaiting a Senate confirmation vote, more than half are women, ethnic minorities or both.

Race is not the only measure of diversity under consideration by the administration — for example, J. Paul Oetken was the first openly gay man to be confirmed to the federal judiciary, in his case in the Southern District of New York. Obama has presented three other openly gay nominees to the Senate as well.

"The president wants the federal courts to look like America," said Kathryn Ruemmler, the White House counsel. "He wants people who are coming to court to feel like it's their court as well."

Curt A. Levey, executive director of the Committee for Justice, a conservative legal organization that often speaks out on judicial nominations, said discussions of diversity tracked old debates over affirmative action.

"Diversity is a good thing, but how do you achieve it — by quotas?" he said. "Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?"

"The more you focus on race and gender," Levey added, "the less you're going to focus on other traditional qualifications — that's simply the math of it."

Besides, he said, "If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed."

Thomas H. Dupree Jr., former principal deputy attorney general in the George W. Bush administration, said ethnic diversity was one factor that should be weighed with other factors.

"It is important to think about how a candidate's past experience in the law may give them knowledge or a perspective that can strengthen our judiciary," he said.

"A judge who has spent his career as a prosecutor may bring a different perspective to applying the law than a judge who has been a law professor," he added, "just as a judge who spent her prior legal career as a litigator may see things differently from someone who worked at a public interest firm."

Dupree, who has signed on with a group advising Mitt Romney, the Republican presidential candidate, on judicial selection, emphasized that he was speaking only for himself.

Ruemmler said the administration seeks a broad range of life experiences in nominees.

"It's not just about race, it's not just about gender, it's not just about experience," she said. "We try to look at judges in a much more holistic way."

Getting nominees confirmed has proved a challenge for the administration. A recent report from the Constitutional Accountability Center in Washington said the federal judiciary had had more than 750 days with at least 80 vacancies on the federal bench, which adds to the workload of an already overburdened judiciary.

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