The Best Judges Obama Can’t Pick

The Washington Post, May 3, 2009

What do Merrick Garland, David Tatel and Jose Cabranes have in common?

All are sitting federal court of appeals judges who were nominated by Democratic presidents. All three are deeply admired by their colleagues and are among a small group of the very finest federal judges in the country. And all three have names you probably won’t hear often in public discussions about whom President Obama should tap to replace retiring Justice David H. Souter.

Garland: white guy. Tatel: white guy and, at 67, too old. Cabranes: Hispanic, sure, but even older.

I have nothing against the people whose names have so far been floated as possible nominees (some of them are excellent), and I’m not against diversity on the high court. Far from it: It’s important to have a court that looks like America, and it is particularly important that following Sandra Day O’Connor’s retirement in 2005 an additional woman join the high court.

That said, there are significant costs to the nominating system that we have developed, in which gender, ethnicity and age have, from the very start of the search for Souter’s replacement, placed off-limits many lawyers and judges whose colleagues regard as some of the best in their profession. The dirty little secret is that the conservative talent pool on the federal courts these days is larger and deeper than the liberal one, mainly because Republicans have been in power far longer than Democrats recently and have therefore had more opportunity to cultivate a strong bench on the bench.

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