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If President Bush wants to make a “diversity” pick for a Supreme Court nomination, must he swim shallow or deep in the pool of conservative minority and female possibilities? Conventional wisdom last week suggested that Bush, after tapping Judge John Roberts, a white male, for the position of chief justice, was unlikely to name another white male for the remaining high court vacancy, the seat currently held by Justice Sandra Day O’Connor, the first female justice. Of course, conventional wisdom immediately after O’Connor announced her impending retirement held that Bush would maintain or increase diversity on the high court in filling her seat, but he initially nominated Roberts, only to renominate him as chief justice following the death of William H. Rehnquist. So much for conventional wisdom. But speculation is a key atmospheric element for survival for many inside the Beltway, and, last week, racial, ethnic and gender diversity marked the potential candidacies of names flying on and off the White House’s alleged “short list.” Some names have been on the “list” for two or three Republican administrations: for example, Edith Jones and Emilio M. Garza of the 5th U.S. Circuit Court of Appeals and U.S. District Judge Ricardo H. Hinojosa in Texas. Others have emerged more recently by virtue of their connection to the president himself, either having worked in his administration, for example, former Deputy Attorney General Larry Thompson, now general counsel at PepsiCo Inc., or having been appointed by him to the bench, such as 9th Circuit Judge Consuelo Callahan. “I think what happens in this process is there is an initial search and so much work is required to satisfy the competing constituencies that once a list is assembled, few people want to give it up,” said Douglas Kmiec of Pepperdine University School of Law, who worked in the Reagan Justice Department. “Some of the names on the list are almost venerable by virtue of age and longevity. There is a certain comfort in going with what you know, but it may not be the best.” The pool of qualified, conservative minority and female candidates for the federal bench is better than it was a decade ago, say court scholars and former Republican administration officials, but it is much shallower than the pool of conservative white males and the Democratic pool of minority and female candidates. In fact, when a number of conservative legal scholars and others following or involved in the nomination process were asked to name, either on or off the bench, the conservative female counterpart to the left’s constitutional scholar and advocate Kathleen Sullivan, no names leapt to mind. “There isn’t anyone,” echoed Bruce Fein of Washington’s Fein & Fein, a former Justice Department official in the Reagan administration. “The closest may be Pamela Rhymer, [a 9th Circuit judge,] but she is not quite of the same stature in terms of analytical incisiveness.” And when the pool is divided into what Fein calls “thinkers and lawyer-types,” he said, there aren’t many “thinkers” like former appellate judge Robert Bork, “giants who change the philosophy of law and have spoken about changing ideas.” Candidates in the diversity pool, he explained, are mostly political nominees, appointed for the political benefit of the president as opposed to the influence they would have on the Supreme Court. “I think that’s the issue Bush has to confront. He can get people who are perfectly qualified who are minorities or women, but they won’t be people who carry the influence of someone who writes like a Bork or [Justice Antonin] Scalia or [Chief Justice John] Marshall.” CREATING DIVERSITY For now, Bush apparently is looking primarily to the federal courts for diversity nominees. “Because of the pool problem, we did carefully examine law firms and professors as well in looking for good women and minorities to appoint as district judges and appellate judges,” recalled Bradford Berenson of Sidley Austin Brown & Wood, who served as associate counsel to Bush in his first term. “For the Supreme Court, it is harder. The universe of people who are arguably credible is much, much smaller,” he explained. “The candidate lists for women and minorities do tend to focus on people who already have distinguished themselves on the federal appellate bench. You hear a small handful of names of people who are practitioners or judges on state benches.” Berenson said Bush does have qualified women and minorities to choose from for the O’Connor seat. “My own hunch, given the president’s own commitment to diversity on the federal bench, is that he is going to have a strong bias in favor of selecting a qualified woman or minority for this second seat,” he added. Bush’s commitment to diversity on the federal courts is borne out by the numbers, said federal court scholar Sheldon Goldman, political science professor at the University of Massachusetts at Amherst. “His record has been the best record of any Republican president,” said Goldman. “It exceeds his father’s record. It’s not as good as President Clinton’s record, but it’s close to President Carter’s. Carter was the breakthrough administration for diversity or nontraditional appointments.” Today, 37.3 percent of all federal judges are nontraditional appointments. Women hold nearly a quarter of all federal judgeships. Representation of Asian-Americans is at less than 1 percent; no Native Americans sit on the federal bench and none has sat since 2001. Studies have shown that diversity trumped ideology for Carter, who actually named conservative Republican women to the bench, said Goldman, noting Cornelia Kennedy on the 6th Circuit. “For Bush, diversity is very important but ideology trumps diversity,” he said, explaining, “We know that from the people he is not choosing and from those he is choosing. Key advisers and judge-pickers all have made it clear they are looking for people who share the president’s judicial philosophy.” The pool of qualified conservative minority and female candidates for a Bush Supreme Court nomination is shallower overall for a number of reasons, some historical, others political. The first generation of women and minority lawyers who had full access to equal opportunity are only now getting to the age where they could be considered for judicial appointments, said a former administration official who wished not to be named. “With respect to minorities, fewer tend to skew conservative in their political sensitivities.” But the latter may change as well as the overall pool size in 10 to 20 years, said M. Edward Whelan III, president of the Ethics and Public Policy Center and a former principal deputy assistant attorney general in the Office of Legal Counsel in the Bush Justice Department. “It’s more useful to look at the transformation that has started to occur in law schools as a result of the challenge to conventional legal thinking that Reagan judges provided,” he said. “Ten or 20 years from now, you will have Scalia prot�g�s teaching and bringing along more folks and the numbers will grow.” Whelan and conservative legal scholar Steven Calabresi of Northwestern University School of Law, who served in both the Reagan and Bush I administrations, also claimed that the growth of a conservative diversity pool has been slowed by the difficulty conservatives face in being hired by some law schools. “I do think it is somewhat harder for conservatives to get hired in law teaching than it is for liberals,” said Calabresi. “It is even harder for conservative women and minorities than white males. Conservative women and minorities are treated as objectionable because there must be self-loathing involved if you are a conservative. It’s hard to generalize about, but I do think it is a problem.” Whelan said his impressions are third hand, but he’s heard that there’s a great deal of hostility in law schools toward conservative professors who often have to “hide their stripes” if they’re not tenured. “I have heard very good things about [Dean] Elena Kagan at Harvard and what she has done in bringing on board some top-notch conservative scholars,” he said. “She seems to value quality across the board.” The Bush pool gets even smaller, however, by virtue of the hunt for conservative women and minorities who share his philosophy or who will be amenable to his conservative constituencies. “Certain of the women and minorities in the qualified pool clearly have been brought up on charges of suspected moderation,” said one former administration official. “I think [Attorney General Alberto] Gonzales would be an obvious first choice were it not for opposition by conservative groups. And then there are others who might be considered too conservative: Edith Jones is an obvious name. Politics in all directions plays a role.” Sherrilynn Ifill of the University of Maryland School of Law, who has written about diversity and judicial independence, agreed, adding, “This is not just a matter of intellectual capabilities but a matter of expressed ideology. His constituency has to be reassured. The candidate has to have expressed views, but not have expressed them in such a strident way that results in a seriously contentious and ultimately unsuccessful confirmation process. That is the president’s conundrum. “If the president is prepared to move off somebody who has an expressed ideology and to look for a moderate Republican, then it opens things up tremendously,” she said. Kevin R. Johnson, associate dean and Public Interest Professor of Law and Chicana/o Studies at the University of California, Davis School of Law, said he doesn’t “buy” a pool problem with women today, since they make up 55 percent of law school applicants. Pepperdine’s Kmiec agreed: “Law schools have been producing high-ranking female graduates for over a decade. For example, Maureen Mahoney [partner at Latham & Watkins and a former deputy solicitor general] is one of the most excellent Supreme Court advocates. The mere fact she is not sitting on the District of Columbia Circuit ought not to disqualify her.” For Latinos and African-Americans, the pool is smaller than for white nominees, “especially if you limit your pool to the Federalist Society,” said Johnson. “But it’s not the case that Latino activist groups are going to oppose all conservative Latino nominees. If a conservative is in the mainstream, they will support a Latino because of the benefits of adding diversity to the court.” Bush and future presidents, he said, must think about diversity on the Supreme Court, if not with the O’Connor vacancy, then with future ones. “It was a monumental move forward when Thurgood Marshall was added to the Supreme Court,” he said. “For the very first time, African-Americans were give a seat at the table on the supreme lawmaking body of the land. You can never fully represent the entire population. You can only hope to include different voices over time and not make it an exclusive enclave.”

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