The importance of a fairly-selected judiciary

Richard E. Myers II is the Chief District Judge of the United States District Court, Eastern District of North Carolina. He was nominated by Donald Trump and took office on January 1, 2021.

Judge Meyers was born in Jamaica. He is of mixed race.

Today, he testified before a congressional committee on the subject of “The Importance of a Diverse Federal Judiciary: The Selection and Confirmation Process.” I found his testimony insightful and moving. Here are excerpts:

First, a fairly-selected judiciary is crucial because of the messages it sends regarding equal opportunity, access to the courts, and the fairness of our judicial system. I am certain that everyone on this panel agrees that absolute equality of opportunity is essential to judicial selection, and to the public’s faith in the judiciary. No American should believe that “someone like me” can’t get fair consideration for any position of public service. Because I believe that people of good faith agree with the goal, I want to talk a little about the path to a diverse judiciary, and the collateral consequences of the choices we make along the way.

I am a Jamaican immigrant, of mixed ancestry. . .I am a wobbler on the color line – there are people eager to place me into a racial category for reasons of their own, but my background and appearance defy simple categorization. . . .

At every career stop, I was encouraged to select particular boxes on personnel forms to ensure that the organization hiring me got credit for diversity hiring. All of this was troubling to me, because it fostered the perception that I would be treated as a representation of some category, not as a unique individual with my own talents, goals and dreams.

Fortunately, I felt none of this racial pressure when I was selected as a candidate to be a federal judge. . .At the time, I was a law professor at the University of North Carolina School of Law. I brought a specific kind of diversity there too – I was an outspoken advocate of textualism, originalism and judicial restraint within the increasingly liberal legal academy.

I can happily say that at no time during my selection and nomination process was I asked about my race – until after my confirmation hearing. Ironically, as I was walking out of the hearing, a reporter pointedly asked me what race I was and told me that the President was criticized — by people who had never met me — for failing to select a diverse candidate.

Looking forward: Racism is real – I have personal experience with it. But I also believe that justice is blind and all judges wear the same black robes for a reason. We need to strive–selfconsciously and mightily – to achieve Martin Luther King’s dream – to create the day when we all are judged not by the color of our skin but by the content of our character.

Justice Clarence Thomas’s concurrence in Adarand 1 accurately captures my views on this issue. “Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.”

This is my chosen country. I have taken multiple oaths to uphold and defend the constitution of the United States: at my naturalization ceremony, again when I became an Assistant United States Attorney, and yet again when I became a federal judge. We have amended our Constitution multiple times to further commit us to principle that all people are equal before the law. We still have much work to do to fully accomplish that goal. As a judge I strive every day to find neutral principles of law and apply them neutrally — to all of the people who appear before me, without fear or favor.

Discriminating on the basis of immutable characteristics damages and deprives those who choose to discriminate. And it damages those excluded – or chosen – for that reason. If the public reasonably believes that a potential judge was excluded – or chosen – because of an immutable characteristic, then we as a nation lose faith that the choosers understand the real qualifications they are seeking, and that the judge chosen was truly the best choice among all of those available.

There are many people in this country, from widely diverse backgrounds, who have the capacity to be great federal judges. I encourage our leaders to remain committed to the proposition that all people are equal before the law, to consider every potential candidate as an individual, with all of the nuance that that requires, and to seek the best candidates without fear or favor.

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