Last week, the House Judiciary Committee held a hearing on “The Importance of a Diverse Federal Judiciary.” The title of the hearing shows that the Committee had already reached the conclusion that a “diverse” federal judiciary is quite important. It brings to mind the old Johnny Carson show gag in which Ed McMahon might ask: “How important is it, Johnny?”
One of the Committee’s witnesses didn’t go along with the gag. Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit included the following observations in his prepared remarks:
Once everyone has had full and fair opportunity to be considered, you pick on the merits. Both the Constitution and the Civil Rights Act make clear that it is wrong to hire people based on race.
That’s the law for a wide range of jobs. But it would be especially wrong to select judges based on race.
It is true that I am the only Asian American on my court. I’m also the only immigrant on my court.
But I would never suggest that a wise Asian would, more often than not, reach a better conclusion than a white judge. That would be antithetical to our legal system, and poisonous to civil society. No one should ever assume that I’m more likely to favor Asians or immigrants or anyone else—or that my colleagues are less likely to. . . .
I don’t say this because I think race is no longer an issue in our country. I’ve received racist hate mail and racially disparaging remarks because of positions I’ve taken in my career. I’ve been treated differently because of who I’m married to. And I also remember, back in high school, my college admissions adviser telling me that my grades, SAT scores, and activities were all strong enough to get me into my top choice of schools—if I wasn’t Asian.
Now, I’m not saying any of this here to complain. Whatever negative experiences I’ve had, they pale in comparison to my many blessings living in this great country. I was not born an American. But I thank God every day that I will die an American.
My point is just that I don’t come to my views because I think racism is behind us. Rather, I come to my views precisely because racism is not behind us. The last thing we should do is divide people by race. The last thing we should do is suggest that the racists are right. We don’t achieve equality of opportunity by denying it to anyone—we achieve it by securing it for everyone.
So make no mistake: It would be profoundly offensive—and un-American—to tell the world that you’re restricting a judgeship to members of only one race. It’s offensive to people of other races. And it’s offensive to people of that race—because you’re suggesting that the only way they’ll get the job is if you rig the rules in their favor.
Judge Ho is a superstar. He was nominated to the Fifth Circuit by President Trump. Notwithstanding his stellar qualifications and his “diversity,” only three Democrats (Donnelly, Heitkamp, and McCaskill) voted to confirm him. None of the three is still in the Senate.