[guest post by Dana]
As readers here know, Ed Whelan is a stand-up guy. Principled, insightful and one from whom everyone can learn something. So when I read Matt Yglesias’s recent smear of him, I thought I would bring it to your attention.
Yglesias’s made two false accusations today. First, he claimed that President Trump promised that he would create a whiter judiciary. He does not provide any quotes from the president to support this claim because the president never said this. Apparently, Yglesias believes that Trump’s disparaging smear of Judge Gonzalo Curiel, when Trump called the judge overseeing his Trump University case a “hater,” as well as calling into question his ethnicity, provides the necessary proof. The second inaccurate comment Yglesias made was that President Trump has since delivered on his promise of a whiter judiciary – with the enthusiastic and explicit support of Ed Whelan.. (Since his declaration that Trump promised a whiter judiciary is untrue, it goes without saying that his conclusion of Trump having delivered on this promise is also false. You can’t deliver that which you haven’t promised. That’s not to say he hasn’t selected white nominees. We know he has. But instead of jumping to a racial accusation, Yglesias should consider that it is the judicial philosophy of the individual that has landed them a nod. Yglesias is correct that, as far as I know, Trump has not apologized to Curiel for his ugly comments.)
Yglesias points to Whelan’s Bench Memoes post, Trump’s Judicial Picks And ‘Diversity,’ published in May of this year to back up his accusations.
In his post, Whelan opts to lay out his “stand-alone account” of his views on the subject of judicial selection and where diversity fits in. He does some “bean counting,” using the the left’s own approved diversity statistics:
Of Trump’s confirmed nominees, 76% are male and 24% are female. Of his other nominees (both pending and withdrawn), 74% are male and 26% are female. Combining the numbers yields an aggregate of 75% male and 25% female.
According to AFJ’s numbers, for their confirmed nominees over the entirety of their presidencies, Barack Obama had a 58/42 split, George W. Bush had a 78/22 split, and Bill Clinton had a 71/29 split. So Trump’s numbers are in the same ballpark as Bush’s and Clinton’s—a slightly higher percentage of women than Bush and a slightly lower percentage than Clinton.
On race/ethnicity: Of Trump’s confirmed nominees, 9%—three “Asian Pacific American” appointees—are minorities. Of his other nominees, 9% are minorities: three Hispanics, two Asian Pacific Americans, and one African American (who, by the way, has been awaiting a Senate floor vote since December).
Nearly 36% of Obama’s judicial appointees were minorities. The figure for Bush was 18% and for Clinton 25%. So Trump’s percentage of minority nominees is only half of Bush’s figure and far below Obama’s and Clinton’s.
Then Whelan looked at the “diversity” question itself, in light of the Trump presidency:
hat “diversity statistics” should we expect in a president’s judicial nominations? Well, some with a very robust quota mentality (like this law professor and—surprise!—former clerk to Justice Sotomayor) seem to think that the goal should be to have different subgroups “represented on the bench” in accordance with their numbers in the population. I won’t join argument on that position here, but will instead note it and set it aside.
He expands on his views of what a president should be able to take into consideration, and have leeway in when making his selection of a judicial nominee:
My own take is that a president is entitled to select nominees who share his Administration’s judicial philosophy and who are supporters of—or, at the very least, who are not critics of—the president. Further, I’d expect candidates to be broadly in the age range of 40 to 55 and to have the sort of professional qualifications that would generate a favorable rating from the American Bar Association.
So far I don’t see any place where Whelan has supported any purported intentional creation of a whiter judiciary, not enthusiastically, and certainly not explicitly. Let’s look further at his examination of the selection of the judiciary. Acknowledging that it’s difficult to be completely accurate about where a pool of candidates would land on the diversity scale, he nonetheless sticks to the known quantities:
According to 2018 data from the ABA, 64% of active attorneys are male and 36% are female. Further, 85% are white and only 15% are minorities. (I haven’t found a breakdown by age. Perhaps the female and minority numbers are somewhat higher in the 40-to-55 age bracket, but it seems at least as plausible that the higher numbers are in the younger age bracket.)
One study concludes (see figure 3 here and accompanying text) that female lawyers are “significantly more liberal” than male lawyers, “even when controlling for a number of other salient characteristics like years since bar passage.” (I’d guess the same is true for minority lawyers versus white lawyers.)
Women lawyers “are much more likely [than male lawyers] to exit the workforce in order to focus on childcare.” It’s a safe bet that the disparity is even greater between conservative women lawyers and conservative men lawyers.
In the 2016 election, 52% of men voted for Trump, while only 41% of women did; 57% of whites voted for Trump, while only 8% of African Americans, 28% of Hispanics, and 27% of Asians did.
Again, it’s too complicated a matter for me to try to integrate all these statistics to estimate the demographics of the Trump judicial-candidate pool. But I’d be surprised if any serious effort would yield numbers higher than 25% female and 9% minority.
Again, I’m not seeing any sort of endorsement for a whiter judiciary.
Whelan addresses what some may have seen as an “indictment of conservative judicial philosophy”. Pfft! says Whelan:
Some on Twitter imagine that these numbers are somehow an indictment of conservative judicial philosophy. Take Ian Millhiser—please! But this is a massive non sequitur. Set aside the oddity that Millhiser seems to think that the only women whose views count are liberal women. The soundness of an idea or of a philosophy does not turn on the number of people who embrace it.
Further, the percentage of women in the hypothetical candidate pool does not speak meaningfully, if at all, to the percentage of highly educated women lawyers (or of women more generally) who support conservative judicial philosophy. As noted, conservative women are much more likely than conservative men to take time off in the formative years of their careers to give birth and to raise their kids. They also might well be more likely to pursue fields with predictable or flexible hours and little out-of-town travel. They might be more likely to face discrimination from legal academia. I’m not going to try to quantify the cumulative effect of such factors. I’ll limit myself to the observation that even if one were to assume an even male-female split among proponents of conservative judicial philosophy, there is ample reason to expect a much more skewed candidate pool.
Whelan concludes by sharing with readers that from what he’s heard, this White House is making a concerted effort for female and minority candidates. And he reminds readers that the statistics don’t contradict this.
Yglesias is a fool to make such false accusations against someone with a stellar reputation of honesty and precision. I will assume it’s the Vox way: manipulate and manufacture smears as necessary. By making the judicial selection of individuals about race and diversity, it detracts from the more basic and important matter of a nominee’s judicial philosophy. Bright, shiny object and all that.
For his part, Whelan came out swinging. I’ll just leave his Twitter exchange with Yglesias here. It’s what we would expect from Whelan, measured and to the point:
(Cross-posted at The Jury Talks Back.)