Opinion
Obama’s Fight to Confirm Judges
“Challenging People to Shape
a Better Future Now”
B ERNIE F OSTER
Founder/Publisher
B OBBIE D ORE F OSTER
Executive Editor
T ED B ANKS
Advertising Manager
J ERRY F OSTER
Account Executive
L ISA L OVING
News Editor
H ELEN S ILVIS
Multimedia Editor
B RUCE P OINSETTE
Reporter
D AVID K IDD
Graphic Designer
M ONICA J. F OSTER
Seattle Office Coordinator
J ULIE K EEFE
S USAN F RIED
Photographers
The Skanner Newspaper, established
in October 1975, is a weekly publica-
tion, published each Wednesday by
IMM Publications Inc.,
415 N. Killingsworth St.,
P.O. Box 5455, Portland, OR 97228.
T
he next major showdown in
Washington may not be
over how best to reduce the
deficit or involve another Obama
cabinet appointment. Look for
sparks to fly over the president’s
constitutional prerogative to nom-
inee federal judges and the Sen-
ate’s responsibility to either
confirm or reject those nominees.
The latest manifestation of this
is President Obama’s decision to
fill three vacancies on the U.S.
Court of Appeals for the District of
Columbia Circuit, a frequent step-
ping stone to the Supreme Court.
The president said he is merely
fulfilling his constitutional respon-
sibility as president, but Republi-
cans are accusing him of “packing
the court.”
Clearly, the courts are anything
but packed. In fact, more than 10
percent of all judgeships are
unfilled. There are 87 vacancies,
up from the 55 when Obama first
took office.
To fully appreciate the signifi-
cance of this standoff, it is impor-
tant to remember that in their
effort to radically shift the nation
to the right over the past two
decades, Republicans have gone
all out to control the federal judici-
ary by placing young, arch conser-
vatives on the bench.
According to a March 5 report
by the Alliance for Justice titled,
“The State of the Judiciary: Judi-
cial Selection At the Beginning of
President Obama’s Second Term,”
Republican appointees still control
the federal judiciary.
However, the study found,
“Since the end of the Bush Admin-
istration, the percentage of Repub-
lican-appointed circuit judges
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T HE C URRY
R EPORT
George E.
Curry
dropped from 61.3% to 51.2%,
and the percentage of Republican-
appointed district court judges
dropped from 58.6% to 53.6%.”
May 2, titled, “President Obama’s
First Term U.S. Circuit and Dis-
trict Court Nominations: An
Analysis and Comparison with
Presidents Since Reagan.”
It noted, “President Obama is
the only one of the five most
recent Presidents for whom, dur-
ing his first term, both the average
and median waiting time from
nomination to confirmation for
circuit and district court nominees
was greater than half a calendar
year (i.e., more than 182 days).”
There is plenty of blame to go
Republicans have gone all out to
control the federal judiciary by
placing young, arch conservatives on
the bench.
Political affiliation isn’t the only
thing that is changing.
“President Obama’s nominees
have been the most diverse in
terms of race and gender in Amer-
ican history,” according to the
report. “Forty-one percent of his
appointees have been women and
36% have been people of color, a
far higher percentage than any of
his predecessors.”
Bill Clinton had the second-best
record, with 29 percent of his
appointees women and 24 percent
people of color.
Obama’s record would have
been even more impressive had he
made nominations at the same
pace of his immediate predeces-
sors.
The Congressional Research
Service (CRS) issued a report on
around for such a slow confirma-
tion pace, beginning with Obama.
“… Of the 81 circuit or district
court vacancies that existed at the
end of President Obama’s first
term, 50 (or 61.7%) were vacan-
cies for which, as of January 19,
2013, the President had not select-
ed a nominee,” the CRS study
found.
And even when Obama did sub-
mit names, the study found, his
confirmation rate was lower than
most of his immediate predeces-
sors.
“Among the first five Presidents
during their first terms… Presi-
dent G.H.W. Bush had the greatest
number of circuit court nominees
confirmed, 42. President Reagan
had the greatest percentage of cir-
cuit nominees confirmed during
his first term (86.8%). In contrast,
President Obama had the second-
lowest percentage of circuit court
nominees confirmed (71.4%) and
is tied with President Clinton for
having the lowest number of cir-
cuit nominees confirmed, 30.”
There was a similar pattern with
district court nominees, with
Obama having the second-lowest
number and percentage confirmed.
Although Obama has done an
impressive job appointing nomi-
nees who reflect racial and gender
diversity, he has not done as well
with
professional
diversity,
according to the report by the
Alliance for Justice. While Obama
has appointed 99 ex-prosecutors,
he has nominated only 33 former
public defenders and 16 former
academics.
Á professionally diverse judici-
ary better reflects the range of
legal and societal experiences that
judges bring to the bench,” the
report observed. “A judiciary
heavily slanted toward former cor-
porate attorneys and prosecutors
lack the perspective of lawyers
who have represented clients in
criminal defense, consumer and
environmental protection, person-
al injury, and other public interest
fields.”
Unlike Republicans, Obama has
tended to nominate older candi-
dates to the bench, averaging 51.3
years old. That’s typically 2-5
years older than Republican
appointees. And that could come
back to haunt Democrats in the
future.
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Is ‘Big Brother’ Racially Biased?
W
hen George Orwell
wrote the novel 1984, he
envisioned a character,
real or imagined “Big Brother”
who was a know-all, see-all,
omnipotent and elusive presence
that intruded into lives because he
could. Those who knew about
“him” were told that they did not
exist, but in many ways, Big
Brother may not have existed,
either. The omnipotence had taken
on a life of its own.
Orwell’s book was a book ahead
of its time. At a different time, his
book could have been dismissed
as psychedelic fantasy. Today, he
is just a step behind the reality in
which we live. Verizon is sharing
telephone records. The Depart-
ment of Justice is monitoring jour-
nalists, and the IRS is playing
games with those who seek non-
profit status. People pulled over
for a minor traffic violation will
have to submit fingerprints to find
out if they have broken other laws.
Big Brother is alive and well in too
many layers of our lives,
Meanwhile, market researchers
are segmenting populations by zip
code and consumer patterns. They
can tell you what percentage of
Whites, African Americans or
Latinos live in a certain zip
code. They can tell you what you
earn, what you are worth, and how
many of your neighbors have
criminal records. The zip code
data drives marketers. Does it also
Page 4 The Portland Skanner June 12, 2013
B ENNETT
C OLLEGE
Julianne
Malveaux
drive law enforcement?
A recent study indicated that
African Americans are between 2
and 6 percent more likely to be
arrested for marijuana violations
that Whites. I guess it is easier to
arrest from a corner than from a
is a lot easier to pick up a few cit-
izens enjoying marijuana in a park
than banging down the doors of an
elite country club. Yet data about
marijuana usages suggests that
there is little to distinguish the
habits of African Americans from
those of Whites. The only differ-
ence is the arrest rate.
Big Brother knows.
Big Brother has driven the kind
of demographic that will tell you
where you can find low-income,
highly unemployed individuals,
regardless of race. Big Brother
can tell you who can afford
lawyers and who cannot. Big
Differences in marijuana arrests raise
real questions about the many ways
that data may be used to
discriminate
country club. The rate of arrests
for marijuana possession is 716
per 100,000 for African Ameri-
cans, compared to 192 per 100,000
for Whites. The disparity is much
higher in some counties.
Does this mean that African
Americans are breaking more
laws, or that law enforcement offi-
cers are targeting some zip codes
or communities more regularly? It
Brother can drive police to investi-
gate the least and the left out,
those who are most vulnerable,
while deciding to allow others to
slink behind their space of class
and privilege. Big Brother can
play bang for buck games that
make it more profitable to arrest
those with few resources in the
hood instead of those with home-
based protection.
Data collection seems to be a
race-neutral process. While data
collection is an input, arrests are
an output. Between input and out-
put there is the opportunity for
racial bias to show up. If White
folk and Black folk take an equal
toke, why are Black folk more
likely to be arrested? Are zip
codes driving public safety offi-
cers to one place and deterring
them from another?
Differences in marijuana arrests
raise real questions about the
many ways that data may be used
to discriminate. Instead of struc-
tural racism, intrinsic racism, and
other forms of racism, we now
have a data-based racism that is
only logical when we ask how data
is collected. Simply put, the zip
code data leads people to discrim-
inate, if only because they are
being led to single out a certain
population.
In other words you can be a non-
racial racist. You can let the data,
warped though it may be, lead you
to biased conclusions. Data-based
racism is as corrosive as emotion-
based racism. Big Brother’s
racial biases is nothing more than
par for the course.
Julianne Malveaux is a Wash-
ington, D.C.-based economist and
writer. She is President Emerita of
Bennett College for Women in
Greensboro, N.C.