For some, Supreme Court nod is a ‘wasted opportunity’ for diversity

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Digital reporter/producer, Race Matters and education

President Barack Obama announces Judge Merrick Garland as his nominee to the U.S. Supreme Court, in the White House Rose Garden. Photo by Kevin Lamarque/Reuters

President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court Wednesday left some scratching their heads. Considering his historic election as the first African-American president, some pundits expected that Mr. Obama’s presumably last opportunity to affect the highest court in the land would likely include another monumental first.

For weeks there was speculation that Judge Sri Srinivasan of D.C.’s circuit court would become the nation’s first Indian-American nominee. Others raised the names of women such as U.S. Attorney General Loretta Lynch or California Attorney General Kamala Harris. In its 227-year history, there has never been an African-American woman nominated to the Supreme Court, prompting the National Organization for Women (NOW) to criticize President Obama’s choice of Garland as “unfortunate.”

“We have to continue to wait for the first African-American woman to be named,” NOW President Terry O’Neill said in a statement. “For this nomination, the so-called political experts ruled that the best choice for the highest court in the nation was a cipher — a real nowhere man.”

On social media, NOW’s sentiments were echoed by those in the political realm who felt the nomination was a missed opportunity.

But even critics of President Obama’s decision joined in analysis that perhaps Garland’s nomination was tactical. Considered by many to be a moderate, Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, could be considered a compromise. According to President Obama, even Republicans have acknowledged Garland “would be very well supported by all sides.” He specifically pointed to Republican Sen. Orrin Hatch of Utah saying in the past that “there would be ‘no question’ Merrick would be confirmed with bipartisan support” when Garland was being considered for his current post.

Then there’s the “sacrificial lamb” theory. Some speculated that Garland’s nomination came amid expected obstructionism by the GOP. Just minutes after the president’s announcement, members of the Republican-led House and Senate vowed not to vote on Garland’s nomination, some even pledged not to hold a hearing until the next president takes office next year.

So while some pundits expressed disappointment at the choice of a 63-year-old, white man with an Ivy League background, others recognized the potential strategy of saving a more liberal nominee for if Democratic Sen. Bernie Sanders or Hillary Clinton win the general election in November.

Since the founding of the Supreme Court in 1789, only seven non-white men and women have been nominated to the Supreme Court, and of those, six were confirmed. In terms of gender diversity, five women of any race have been nominated (Judge Harriet Miers withdrew her nomination). Together, ethnic and gender minorities have made up less than 1 percent of all Supreme Court nominees. In context, that’s 25 percent since Thurgood Marshall became the first African-American justice in 1967. The following are all the non-white and women Supreme Court nominees in the Court’s history:

  • 1967: Thurgood Marshall – nominated by Pres. Lyndon Johnson (Confirmed)
  • 1981: Sandra Day O’Connor – nominated by Pres. Ronald Reagan (Confirmed)
  • 1991: Clarence Thomas – nominated by Pres. George H.W. Bush (Confirmed)
  • 1993: Ruth Bader Ginsburg – nominated by Pres. William Clinton (Confirmed)
  • 2005: Harriet Miers – nominated by Pres. George W. Bush (Withdrew)
  • 2009: Sonia Sotomayor – nominated by Pres. Barack Obama (Confirmed)
  • 2010: Elena Kagan – nominated by Pres. Barack Obama (Confirmed)

Source: U.S. Senate

For those seeking a change, the wait just got a little longer.

Judy Woodruff spoke to Marcia Coyle of the National Law Journal and former Solicitor General Seth Waxman about President Barack Obama’s nomination of chief D.C. Circuit appeals judge Merrick Garland to the Supreme Court. Also, Gwen Ifill talked to Sens. Orrin Hatch, R-Utah, and Al Franken, D-Minn., for some insight into how Congress will respond.