Arnold's Judges And The Ethnic Diversity Fallacy

This story by Bill Ainsworth of the San Diego Union-Tribune (click here) about Governor Schwarzenegger's judicial picks reveals the benefits of having a non-establishment politician who is outside the traditional right-left axis picking judges.

The governor is picking people who never had a chance to become judges during the Gray Davis administration: defense attorneys. (An encouraging fact to this criminal appellate defense attorney, by the way.) Davis was compelled by politics to pick prosecutors for judges. As an establishment Democrat he had to protect his right flank from Republican attacks of being soft on crime. He did so by ignoring defense attorneys and picking prosecutors. Arnold's political career puts him outside the traditional left-right axis and frees him to pick defense attorneys to sit as judges.

In another sign of the freedom he has by coming from outside traditional politics, out of 70 judicial picks 37 have been Republicans and 25 Democrats.

What's telling about politics in this country, however, is the focus in the article on the ethnic diversity of the candidates. The Governator's judicial picks are not as ethnically diverse as Davis's picks were. Although Arnold's picks apparently reflect the ethnic percentages of the state bar, those percentages are less than Davis's and less than the percentages of California's population.

Naturally, Arnold is criticized for failing the diversity test. A past-president of the California Women Lawyers calls the lower percentage of female appointees under Arnold "worrisome." And as Chris Arriola of La Raza Lawyers of California puts it, "If the bench is not reflective of the community, it loses credibility. People need to feel they can participate and their voices will be heard."

There you see the problem with the racial diversity advocates. Here we have a governor who is promoting true diversity on California's bench by appointing defense attorneys not just prosecutors, men and women from both political parties, and a mix of races, yet he is criticized because he is not picking enough people with the right skin color or sex organs.

The criticisms reveal the shallowness of diversity advocates. For them, skin color and sex say more about the qualifications to be judge than the type of law the judge practiced before rising to the bench.

Thus, at the end of the article, speculation about who will replace departing Justice Janice Rogers Brown is all about whether her replacement will be African-American or Latina. Arriola, the advocate from La Raza, pushes a specific Latina, who used to be a prosecutor and is now a Court of Appeal justice, saying "If he (Arnold) wants to blow up boxes, how about appointing the first Latina to serve on the Supreme Court." Brown among them, six of the seven justices on California's Supreme Court were prosecutors at one time in their careers. (Click here for bios on Supreme Court's website.) Thus, the irony is that Arriola, by focusing on race and sex, fails to see that he is not promoting true diversity on the Supreme Court because his favored candidate is, yet again, a former prosecutor.

-tdr