Editorial Article: The Role of Diversity in Selecting the Next Nominee for the Federal Circuit

In the newest Patently-O Patent Law Journal article published today, Gregory Landis and Loria Yeadon discuss the role of ethnic diversity in the process of choosing upcoming nominees for the Court of Appeals for the Federal Circuit. The authors suggest that diversity should play a role in the judicial selection and that diversity likely will play such a role. 

Read Gregory P. Landis & Loria B. Yeadon, Selecting the Next Nominee for the Federal Circuit: Patently Obvious to Consider Diversity, 2010 Patently-O Patent L.J. 1 (2010) here: [Nominee Diversity]

The Patently-O Patent Law Journal publishes short, timely essays on patent law focused topics. The published essays are typically fewer than 2000 words.  Feel free to submit essays to me: dcrouch@patentlyo.com. 

70 thoughts on “Editorial Article: The Role of Diversity in Selecting the Next Nominee for the Federal Circuit

  1. 70

    “…crusade against affirmative action.”

    Nice strawman.

    Please see my actual comments regarding affirmative action above.

    This situation is NOT one of those instances (as far as I know – no one has postualted that, in fact, it has been consistently postulated that race is affirmatively (pun intended) a non-subtantive feature).

    You can change the posting name, but the examiner’s tricks still shine through.

    IANAE – what you learned on Diversity Day may not be the lesson they were trying to teach – or maybe soomething has been lost in translation. It appears from your pithy statement that being color-blind is like being ignorant and that we actually need to be acutely aware of color in order to fight “colorism”. – I reject that stand, as so applying “colorism” can only perpetuate the very evil you wish to stamp out.

  2. 69

    “…especially in regards to the beloved MLK’s dream of color-blindness…”

    I suspect that Dr. King would say that it’s a bit premature to talk about color-blindness, so I personally would hesitate to enlist his authority in a crusade against affirmative action. See, e.g.,
    link to lipmagazine.org . Not that it hasn’t been tried before.

  3. 68

    “We don’t have to pretend we’re color blind. That’s fighting ignorance with more ignorance.”

    I learned that at Diversity Day.

    You don’t have to believe every (or any) stereotype to accept that people who grow up in different environments and cultures generally have different life experiences and a different approach to the issues of the day. Nobody is saying to select the “most stereotypical” black or hispanic candidate, and a 9-person panel will never be a complete cross-section of the US population. This is simply about accepting that the country isn’t all rich white people, and that people from other cultural backgrounds might have something unique to contribute.

    Can’t we discuss this like reasonable people without pigeonholing everyone into the affirmative action camp and the racist camp? There’s a pretty big gray area in between those two.

  4. 67

    Is “affirmative action” to be equated with “giving them something”? Is a preference in a tie break also, like, “giving them something”. When is “giving them something” (like, education) OK, and when is it not OK?

    I find these questions quite hard. I don’t practise answering them nearly enough.

    Noise, what if you Google SarcMark?

    Now, back to my prosecution file.

  5. 66

    MaxDrei – somehow you missed my sarcasm switch. I know I don’t have that funky doodad punctuation mark, but I haven’t seen it in stores yet. I cannot see how you even try to reach your statement of “no point in giving them anything” from what I said. The given conditions above are that the tie-breaker features (be it ethnicity or legal-realism) are NOT substantive.

    As someone suggested to me: lighten up. I am NOT serious about the “better wake up” idea. I was merely contrasting the use of one of any particular feature over another when neither feature bears on the immediate qualifications at hand, especially in regards to the beloved MLK’s dream of color-blindness. Extend the race issue to any other non-substantive feature (when the substantive features are all equal), and anyone has any number of equally valid reasons for promoting the use of said non-substantive feature. When the features under consideration are non-substantive, thinking that Race alone is more than simply race is a bit racist.

    IANAE – those legal-realist criteria are just as inherent as any other given the fact that globally-(mis)applied race-based features are truly as just as non-inherent to a particular individual – that is, unless you believe that all stereotyping is true.

  6. 65

    why not use ANY particular feature exalted over those features that have substance.

    Thanks for ignoring my point, which is that deciding based on substance will probably never clearly single out one candidate in a field of highly qualified candidates.

    There is a saying from the legal-realists that the law is made by judges based on what they had for breakfast…. At that point, what’s wrong with using breakfast/sleep well/grumpy as a tiebreaker?

    Those criteria aren’t inherent to the person under consideration, so you’d be better off legislating bedtimes, mattress quality and breakfast content for all federal judges. And let the perennially grumpy ones run for elected office or something.

  7. 64

    Reading Noise on the subject of one tie-breaker(one egg or two) being just as good as any other (ethnicity), I recall what certain persons of European origin used to say about their fellow citizens in South Africa; that there’s no point in giving them anything (you know, like, education) because they only go and break it anyway.

    Noise are you saying that there is no “substance” in ethnicity? Suggest you get yourself a copy of something like Prof. A. Sen on “The Idea of Justice” and see how Euro-centric (and therefore, deficient) much current Western thinking still is.

    Noise, are we better off with Professor Amartrya(?) Sen or with his WASP tie-breaker competitor?

  8. 63

    best line from that link:

    “One of the lessons of US history is that racial categories are anything but meaningful scientific classifications.”

    Apply this liberally.

    Pun intended.

    At that point, what’s wrong with using ethnic/gender/religious/geographic diversity as a tiebreaker?”
    – why not use ANY particular feature exalted over those features that have substance. There is a saying from the legal-realists that the law is made by judges based on what they had for breakfast…. At that point, what’s wrong with using breakfast/sleep well/grumpy as a tiebreaker?

    /off sarcasm.

  9. 62

    “Whites will soon be less than 49% of the population, but they will still be the largest minority and they will still disproportionately hold the reins of power.”

    Sure, if by “soon” you mean “in a long time,” and if you use the same definition of “white people” as the Aryan Nation.

    BigGuy posted this link earlier:

    link to boston.com

  10. 61

    “The qualifications for a position of this nature are so subjective and unquantifiable that the best you can hope for is to identify a group of excellent candidates and choose more or less randomly from among them. At that point, what’s wrong with using ethnic/gender/religious/geographic diversity as a tiebreaker?”

    Nothing.

  11. 60

    Whites will soon be less than 49% of the population, but they will still be the largest minority and they will still disproportionately hold the reins of power.

  12. 59

    I can’t help thinking that any member of a visible minority who can be reasonably considered for a seat on the Supreme Court bench is probably one of the country’s least-disadvantaged minorities.

    Even so, I would disagree with BJA’s statement that “no two candidates are ever dead equal. People are different, and when you interview them (as in a real interview), one will always turn out to be better for the job.

    The qualifications for a position of this nature are so subjective and unquantifiable that the best you can hope for is to identify a group of excellent candidates and choose more or less randomly from among them. At that point, what’s wrong with using ethnic/gender/religious/geographic diversity as a tiebreaker?

  13. 58

    “Aren’t white people now less than 1/2 the population of the US?”

    Nope. Where does this nonsense come from.

  14. 57

    Lionel Hutz says: “I agree with Mooney”

    LOL

    Hutz IS Mooney.

    What a bunch of sock puppet chikanery to promote a silly agenda.

  15. 55

    Bad Joke Ahead: 1
    Malcom Mooney: 0

    How’s about we skip all of this “cultural” or “race” stuff, and just proceed to genotyping someone as part of the application process???

    How’s YOUR melanin expression level????

  16. 53

    Even if one agrees with the premise that cultural diversity is an important thing, that is NOT what the authors are arguing–they argue that it is AT LEAST AS SIGNIFICANT AS PROFESSIONAL QUALIFICATIONS to the functioning of a FedCir justice.

    From the article: “Besides these important factors, however, the Administration should take
    into consideration other characteristics which are no less significant. Since
    the Court of Appeals for the Federal Circuit was formed in 1982, while there
    has been evidence of diversity in terms of professional background, the same
    cannot be said for cultural diversity.”

    Let’s say we accept, arguendo, the cultural imbalances claimed to exist. So what? Where is the cogent argument, or any argument for that matter, that within the specific context of a position on the FedCir bench, cultural heritage is AS SIGNIFICANT as professional qualifications?

    Rubbish piece of writing.

  17. 52

    KR: some would say that, in the long run (although I have to say, in the long run we are all dead) affirmative action actually does more harm than good to under-represented minorities.

    The more interesting question is whether, in conditions of perfect equality of opportunity, there would still be fewer female than male lawyers. Has any commentator here actually taken the time to read Pinker’s Blank Slate?

  18. 51

    All: I thought the idea behind affirmitive action was to help minorities become better represented in general. Am I missing something?

  19. 50

    Actually, I wonder if anyone else had run into these companies? Some of them are in the business of taking patents and trying to get companies to take licenses.

    Does anyone have a pointer to a good article about what constitutes UPL in patent law?

  20. 49

    I agree with Mooney today.

    Ethnicity can and should be a factor in selecting justices. The decision-makers in our legal system should be reflective of the society around them.

    I do not believe anyone here will say that Sotomayer was not qualified. She had great credentials. Did the fact that she was hispanic weigh in her favor? Absolutely. Anything wrong with that? Considering she was the first hispanic Supreme Court Justice ever, NO!

    To suggest that favoring her for her ethnicity is comparable to the centuries of land-owning white guy rule in this country is incredibly ign0rant or stewpit

    Bad Joke Ahead appears to be just that, a bad joke.

  21. 48

    Thanks for the explanation Brian. Actually, I am curious what the boundaries are as I have seen a number of companies performing services without lawyers.

  22. 47

    “I recall some white guys with reputations for making racist comments saying such things (like Rush Limbaugh, whom I’m sure you despise) but most people felt she was the best person for the job. She’s going to be a great Justice, I think. I just don’t think she’s going to last as long as Stevens did (or Roberts will), which will be a shame.”

    I don’t recall ANYBODY thinking she was the ‘best’ person for the job. She’s qualified. That’s it. Plenty of others were as qualified, or perhaps more qualified. She got the nod because she happened to have the right ethnicity.

    Are you really meaning to tell me you think her ethnicity had nothing at all to do with her appointment?

    I am very far from racist, btw. I just think people should be judged in a race blind manner. If that means we end up with an all black scotus, so be it. If it means we end up with a ‘wise latina’ on the bench, good. But when someone’s ethnicity gets them the appointment, that’s when I get upset.

  23. 45

    Odd that you have “Patent Law” in the name of your company in that you do not have a law degree.

    You should be aware of the abilities of patent agents to practice a particular subset of law in this country. They have, after all, passed a bar exam.

    I have looked at Brian’s site and would dissuade against the subjective hint that your questions above pose. Agents can indeed “do” patent law – to a degree. Brian’s site is forthright about this.

    Well, thank you both for looking at my site. NWPA, no offense taken, for your question is asked quite reasonably (at least I choose to believe so).

    In fact, per State of Florida v. Perry, decided in the 60’s, I do practice patent law. I am guided by the (overly strict) rules of the PTO, and I abide by them completely and I say as much on my website. Thanks for your statements, NAL.

    A little more background. I have been an agent for eight years now, and I also am an inventor and tech executive. The innovation and invention processes are core to my whole career trajectory. At the same time, I have made a considerable study of law far beyond the narrow confines of passing the patent bar (which was easy). Even though I disagree (for example) that opining on infringement is different than opining on patentability (“that which would infringe, if later, anticipates, if earlier”). It is the same subject matter, but I reluctantly bow to OED statements that narrowly interpret the law.

    But that doesn’t mean I have to agree with them…

    It is somewhat absurd, given that I must remain current on all case law to ensure I draft cases and prosecute them in full view of what happens to them after the PTO (I acknowledge that I know some agents who don’t do this, but then I know some attorneys who don’t either).

    The only time I bristle is when lawyers imply (which has happened several times over the years) that I am in some second class, or that my views are due less respect, because of a lack of a law degree. But then, underestimating me does me a bit of a service, so I get over it. My clients don’t underestimate me.

    I actually do feel the legal profession is due for some reform, but I have neither time nor inclination to instigate or lead such reform. In the old days, lawyers “read the law” and studied and took the bar. Now you have to go to an ABA-accredited school, which I don’t have time to do at my age and with my other obligations. There should still be alternative routes, because THIS kind of diversity would do the legal field some good. Having a fully licensed patent practitioner who (a) has invented in several fields, (b) has run large tech companies and startups (and nuclear warships), and (c) has a deep and abiding love of the law, would add something to the mix. As it is, I can’t even join AIPLA as less than a second-class citizen (hence I choose not to join). This is an archaic system and does not serve clients’ interests, but only lawyers’.

    The fact that people talk about “closing law schools” to throttle supply speaks volumes about the guild-like approach to law practice that prevails today. I would prefer to open it up, with strict enforcement of ethics rules (which of course include rules about competence), and let the market prevail. Bad lawyers should move to some other field, and good “non law school” lawyers should be able to make their way in full subjection to market forces, undistorted by professional protectionism.

    Nevertheless, even though I don’t like the present system, I am content to operate within it.

    In summary, I do not engage in UPL, and my firm is aptly named and appropriately licensed. I follow the rules, under (mild and not particularly intense) protest.

  24. 44

    Is it going to hurt someone personally because they get the judgement from someone of color? Or from someone that is from across the ocean? Get real. Anyone that knocks diversity is a racist pure and simple. If we didn’t have racism this would not be a topic. But unfortunately we do.

    I didn’t mean to imply that I would care what the sex, or color, or national origin of the person on the bench who passes judgment would be. I don’t. I don’t mind working with, for, or over people from any background. Never have.

    I just want well-qualified judges who come from a variety of formative experiences/backgrounds in terms of the relevant subjects (not just patent law, but several very specialized fields of law). Where they are physically or genetically is utterly irrelevant. Where they are from experientially is crucial.

  25. 43

    Didn’t we just get a SCOTUS judge because she happened to be the right ethnicity?

    I recall some white guys with reputations for making racist comments saying such things (like Rush Limbaugh, whom I’m sure you despise) but most people felt she was the best person for the job. She’s going to be a great Justice, I think. I just don’t think she’s going to last as long as Stevens did (or Roberts will), which will be a shame.

    whether that be a gay midget black woman, or a white anglo saxan protestant man?

    Last three Supreme’s appointed were Catholics, including Sotomayor, bringing the total to six. In the history of the Supremes, there has been only one Justice not known to be associated with any religion (David Davis 1862-1877).

  26. 42

    NWPA,

    You should be aware of the abilities of patent agents to practice a particular subset of law in this country. They have, after all, passed a bar exam.

    I have looked at Brian’s site and would dissuade against the subjective hint that your questions above pose. Agents can indeed “do” patent law – to a degree. Brian’s site is forthright about this.

    Furthermore, I feel that Brian has put more “truth” into his post concerning the subject of this thread than quite a few others posting here.

    Sarah,
    it is not the knocking of diversity – “Anyone that knocks diversity is a racist pure and simple” – that is the issue. It is the false notion that diveristy MUST be forced by a quota system. It is the epitome of racism to value race over substance. It is also very telling when one camp uses the if-you-even-disagree-then-you-must-be-racist card. Color-blind does not mean quotas. It does not mean diveristy for the sake of diversity. I am not against affirmative action as there are contexts in which real barriers to color-blindness must be forcefully overcome. Even so, there are other contexts where enforcing “diveristy” for its own sake is simply naked racism. Reverse-discrimination is a misnomer. It means exactly the same thing as discrimination – one particular feature exalted over those features that have substance.

    Take another look at The Dream.

  27. 41

    “I am actually curious if a non attorney (and patent agent) can use “law” in the name of a company the way you have.”

    NWPA, here’s a better question for you. (Seriously.) Can someone who is neither a patent agent nor an attorney set up a business and advertise that it:

    “… has done literally hundreds of prior art searches, and worked numerous litigation defenses, providing technical claim construction & infringement analysis, preparing claim charts, and briefings on relevant technical issues and how those issues may play out in court.”

    A related question: Can a registered patent agent form a partnership with such a business, to offer patent prosecution services?

  28. 40

    “In fact, in many industries now, black people in particular are disproportionately represented in management relative to their percentage of the local population.”

    Could you identify a few of these “many industries,” please? And while you’re at it, please tell us what percentage of GDP these industries represent.

  29. 39

    “I thought a while back that while [sic] people became a minority in the US. Aren’t white people now less than 1/2 the population of the US? If so, this PC minority BS just ran aground.”

    You might want to step outside your compound once in a while and actually look around. The answer is no. Rather, at least 66% of the population are “white people,” even if you refuse to accept the self-identification of an additional 14% who identify themselves as white Hispanics.

    link to boston.com

  30. 38

    Didn’t we just get a SCOTUS judge because she happened to be the right ethnicity? What ever happened to finding the most qualified person, whether that be a gay midget black woman, or a white anglo saxan protestant man?

    This country disgusts me at times.

  31. 37

    Bad joke ahead: Malcom, Night Writer, you guys don’t have children right?

    I can’t tell you how disturbing it is to have my name and the baboon’s in the same sentence.

    But, yes I have children and I think affirmative action will help. Look at what the armed services have to say about affirmative action. I think they have it right.

  32. 36

    And, I am not trying to fry you or anything over politics Brian. I am actually curious if a non attorney (and patent agent) can use “law” in the name of a company the way you have.

  33. 35

    MaxDrei, if you are from England, then you certainly have all the problems we do. And caused an aweful lot of the problems we and the world have. Although, boy, you sure do speak nice.

  34. 34

    >>Brian Galvin

    Odd that you have “Patent Law” in the name of your company in that you do not have a law degree.

  35. 33

    When corporate america really wants diversity in the patent bar, they will get diversity. It is a buyer’s market. I think that the government can promote diversity in the bar by creating diversity on the bench. There are good diversity candidates out there: Judge Sleet in Delaware, Larry Thompson GC of Pepsico, Hilda Galvan from Jones Day, and others. Diversity won’t happen in the patent bar unless it is created by the Court and corporate clients.

  36. 32

    I live on the West coast and would like to see more diversity of another kind … more representation of the different parts of the country, who are different and often think differently. Courts of national import (including the Supreme Court) seem to be reserved for judges of north-eastern or central eastern extraction.

  37. 31

    Here Here Brian. But on the other hand if Justice is fair, and balanced, and the scale represents Justice. Then why not value the balance of all the people. Is it going to hurt someone personally because they get the judgement from someone of color? Or from someone that is from across the ocean? Get real. Anyone that knocks diversity is a racist pure and simple. If we didn’t have racism this would not be a topic. But unfortunately we do.

  38. 30

    Diversity is the politically correct term for “affirmative action”. Appoint based strictly on the qualifications of the individual.

  39. 29

    I don’t feel I have ever been discriminated against. I was bussed to an inner city junior high school that was all black (because of a court order), and I thrived and enjoyed it. I later moved to southwestern Virginia, and graduated high school there. While I’m bright, I am pretty sure I wouldn’t have gotten into Harvard if I had been from New York, yet I did, as one of the “back country public school kids”. Of course, if I had grown up in New York as a bright kid, I would have had better opportunities, and maybe then I would have been competitive with the kids from Bronx High School of Science and Stuyvesant. So what? If I had been born a Kennedy, I would have had MUCH better opportunities. That is life.

    I don’t expect someone else to fix it for me.

    Malcolm, I spent a lot of time in Japan over the years, including some while in the Navy. I have been turned away from restaurants because I wasn’t Japanese. Yes it was very unpleasant. But then, I never thought it wouldn’t have been unpleasant to have been discriminated against if I had been a black man in America. Again, so what?

    Now on slavery etc. My ancestors were busy being starved into submission by the English, to whom I hold no animosity (actually I love England). I am no more responsible for what happened with slavery in America than Obama was a victim of it. I didn’t mess with the Indians. I resent being classed by commentators such as Malcolm who seem to assume, when this topic comes up, that all white men are feeling put upon (I don’t) or discriminated against (I’m not). I do think political correctness, or orthodoxy, in almost all its forms is repugnant.

    Throughout history, people have alternated between peace and war, coexistence and ethnic cleansing/slavery/Holocaust/etc., and all types of people are equally prone to such things. Obviously those with power are in a better position to abuse such tendencies, but they have never had a monopoly on such tendencies. Our Constitution was designed with these frailties of our kind in mind, and it has served pretty well so far.

    Our biggest challenge, it seems to me, comes from the habit of many to primarily identify themselves as members of groups (be they races, religions, classes, or whatever), rather than as individuals who acknowledge that each of us is due the same dignity and liberty as each of the others. I saw this a lot at Harvard, and I saw a lot of people going out of their way to feel guilty for things that had not done. It is not healthy, and it is certainly one of our problems as a species and a nation. I also saw a lot of “champagne socialists” who jealously protect their economic perks but outwardly pursue justice for “the little man”.

    All that said, and while lamenting the unfortunate existence on this thread, in this case, of the kind of obnoxious commentary I usually associate with more polarized fora, I do feel that some of the critics have a very good point. Because “diversity” is (a) politically correct, and (b) popular in academia including business schools, it is usually asserted that it (diversity) is an inherent good. I just don’t see it. Especially in a specialist forum such as the Federal Circuit, it would be good to think about diversity of experience (litigators, prosecutors, examiners/administrative law judges should all be represented if possible). But I don’t see why ethnic diversity has one shred of value in selecting a Federal Circuit judge (although I suspect it will be a major factor because of politics).

  40. 28

    Sorry Mooney, I know the constant crack use has spoiled your reasoning powers, but it’s really more like this and everyone knows it:

    “Hey TSA officer, I wasn’t doing anything wrong. You stopped me just because I’m Middle Eastern, and that’s WRONG.”

    “Hey employer, you hired me just because I’m Black, and that’s WRONG.”

  41. 27

    Black children typically have much more access to basketball courts than white children because they live closer to the parks.

    Was this a scientific study of yours or something you read?

  42. 26

    “Have you ever left the country and gone to a place where you were the minority and were discriminated against? I have. It sucks. I’ve also been the “victim” of so-called “reverse discrimination” here in America. And you know what? I’m in the top 5% income bracket, having started in the bottom 20%. But I could have been in the top 1% if it wasn’t for those racists and their reverse discrimination. Clearly the worst thing ever. How will white people survive if this keeps up?”

    One need not leave the country to experience that MM.

    This is not about survival and you well know it.

    Personally I myself do not know whether or not I’ve been a “victim” of reverse-racism, and even if I was I wouldn’t qq about that particular instance. Nevertheless, I’d much rather see this never become more of an issue. And I certainly don’t appreciate papers blatantly promoting such nonsense.

    As to whether or not I’ve been discriminated against in any way then certainly. I’ve certainly been discriminated against on the basis of national origin, but then again I’ve also been discriminated for based on national origin with several chics so you could say I have no reason to btch. Nevertheless, I see organized discrmination in any form to be completely unacceptable, uncalled for, and this goes double within the gov.

    That’s a nice map broj, maybe you could explain why reverse discrimination as to appointments to a fed circ position would have an impact. If you don’t mind that is.

  43. 25

    All of this minority talk. I thought a while back that while people became a minority in the US. Aren’t white people now less than 1/2 the population of the US? If so, this PC minority BS just ran aground.

    Max, there are black people at in all organizations at all levels here, just like most everywhere else. In fact, in many industries now, black people in particular are disproportionately represented in management relative to their percentage of the local population. So when do we end the practice? By the way, no two candidates are ever dead equal. People are different, and when you interview them (as in a real interview), one will always turn out to be better for the job.

    Or we could talk basketball. Black children typically have much more access to basketball courts than white children because they live closer to the parks. Maybe the NBA needs an affirmative action policy?

    Malcom, Night Writer, you guys don’t have children right? I don’t want my children growing up with racial discrimination enshrined in any of our institutions. It’s divisive. It’s ugly, and it’s wrong. Period.

  44. 24

    This is all very illuminating for me, in the light of my experience watching various American “cop” series and “action” films, where the boss in the office who gives the orders is more often than not an African American. I do occasionally wonder how true to life that portrayal is and, if it is not, how much cynicism and scorn that false portrayal engenders.

    The concept of “affirmative action” surely has a rich literature. Which derrieres to put on the free seats on the CAFC is a dilemma no different from any other that has already been discussed exhaustively, is it?

    My knee jerk: Best person for the job, ought to be the unwavering rule. But what if two candidates are equally well-qualified. What’s wrong, given a tie breaker situation, in taking the minority candidate, in the interests of providing a further role model for encouraging positive personal development in that person’s minority group, to the benefit of all members of society.

  45. 22

    if police can’t stop a driver, just because they are, for example, black, then someone should not be inserted into a vacant position just because they want the position filled by, for example a black.

    “What’s the problem Officer?”

    “The Federal Circuit needs a black woman. Get out of the car and put this robe on.”

    I guess you’re right, LiberalGuilt. It is the same thing! Thanks for taking time out of your usual YouTube commenting gig to explain this to us.

  46. 21

    Year..White..Black..Hisp..White..Black..Hisp
    ……men….men….men…women..women..women
    .
    1970..100%…69.0%..n.a….58.7%.48.2%..n.a.
    1975..100….74.3…72.1%..57.5..55.4…49.3%
    1980..100….70.7…70.8…58.9..55.7…50.5
    1985..100….69.7…68.0…63.0..57.1…52.1
    1990..100….73.1…66.3…69.4..62.5…54.3
    1992..100….72.6…63.3…70.0..64.0…55.4
    1994..100….75.1…64.3…71.6..63.0…55.6
    1995..100….75.9…63.3…71.2..64.2…53.4
    1996..100….80.0…63.9…73.3..65.1…56.6
    1997..100….75.1…61.4…71.9..62.6…53.9
    1998..100….74.9…61.6…72.6..62.6…53.1
    1999..100….80.6…61.6…71.6..65.0…52.1
    2000..100….78.2…63.4…72.2..64.6…52.8
    2003..100….78.2…63.3…75.6..65.4…54.3
    2004..100….74.5…63.2…76.7..68.4…56.9
    2006..100….72.1…57.5…73.5..63.6…51.7

  47. 20

    Year White Black Hispanic White Black Hispanic
    men men men women women women
    1970 100% 69.0% n.a. 58.7% 48.2% n.a.
    1975 100 74.3 72.1% 57.5 55.4 49.3%
    1980 100 70.7 70.8 58.9 55.7 50.5
    1985 100 69.7 68.0 63.0 57.1 52.1
    1990 100 73.1 66.3 69.4 62.5 54.3
    1992 100 72.6 63.3 70.0 64.0 55.4
    1994 100 75.1 64.3 71.6 63.0 55.6
    1995 100 75.9 63.3 71.2 64.2 53.4
    1996 100 80.0 63.9 73.3 65.1 56.6
    1997 100 75.1 61.4 71.9 62.6 53.9
    1998 100 74.9 61.6 72.6 62.6 53.1
    1999 100 80.6 61.6 71.6 65.0 52.1
    2000 100 78.2 63.4 72.2 64.6 52.8
    2003 100 78.2 63.3 75.6 65.4 54.3
    2004 100 74.5 63.2 76.7 68.4 56.9
    2006 100 72.1 57.5 73.5 63.6 51.7

  48. 19

    Doing anything on directly the basis of “diversity” is inherently racist.

    If it doesn’t wash for profiling, then it shouldn’t wash for promotional purposes.

    In other words, if police can’t stop a driver, just because they are, for example, black, then someone should not be inserted into a vacant position just because they want the position filled by, for example a black.

  49. 18

    “Have you ever left the country and gone to a place where you were the minority and were discriminated against? I have. It sucks.”

    I guess this was during your Peace Corps days…

  50. 16

    My experience is actually the same as MM. (Including working in another country.)

    It isn’t great, but then what else can we do as a country? We are a lot better off having an integrated work force than not.

  51. 15

    egads, I agree with 6 – somebody slap me

    So awesome that you two could bond over the oppression of white people.

  52. 14

    Being serious for a moment though, reverse discrimination is just as bad as discrimination itself.

    Have you ever left the country and gone to a place where you were the minority and were discriminated against? I have. It sucks. I’ve also been the “victim” of so-called “reverse discrimination” here in America. And you know what? I’m in the top 5% income bracket, having started in the bottom 20%. But I could have been in the top 1% if it wasn’t for those racists and their reverse discrimination. Clearly the worst thing ever. How will white people survive if this keeps up?

  53. 13

    Dennis, might I suggest that if you are going to publish on something this controversial, a little more foundation is required for the article? The descriptive point I have little problem with. The normative point is incendiary, and the only justification I see being raised is that viewpoint diversity would be a good thing — with the obvious caveats that viewpoint may or may not be correlated with ethnicity, and that even if it is, viewpoint diversity might be easily achieved directly without resort to ethnic profiling. Finally, it is not at all clear that viewpoint diversity (at least those springing from racial/ethnic considerations) is desirable on the Federal Circuit, which unlike other courts of appeals has a relatively non-ideological docket, not least because it hears no discrimination claims (5 USC 7702).

    None of this is to say that the authors are necessarily wrong in their position. It is just that the article seems to present “diversity is good” as an article of faith, with very little to support it, and skeptics can quite justifiably ask those advancing a rather controversial proposition to come up with some support.

  54. 11

    “While it is true that the authors suggest ethnic diversity should play a role, the article is completely devoid of reasons WHY it should play a role.”

    There is a significant body of literature on the discriminatory impact on ethnic minorities of societal structure. Although not necessarily borne out of a discriminatory intent, ethnic minorities often are disadvantaged nonetheless, due to things such as regional differences in school quality, federal aid and local employment opportunities. Regardless of where you stand politically, it’s worth understanding these arguments, because as you say “nobody should be disadvantaged because of their ethnicity.”

    Affirmative action programs are often aimed at countering these structural effects. As you further say, “[i]f you take it into account, then some will be advantaged and others disadvantaged.” This is true, but you must realize that this is also true if we do not have counterbalancing programs. As you surely agree, the goal is to reduce the inherent advantage or disadvantage to any particular ethnic group due to society’s influence; often this goal requires affirmative action.

  55. 10

    “There’s something about white guys whining about how unfair life in America is for white guys that just rubs the wrong way. Not sure what it is. Maybe something to do with slavery or internment camps or women not having the right to vote? Maybe it’s just a personal tic.”

    End women’s suffrage today! I mean, suffering, wait…

    Being serious for a moment though, reverse discrimination is just as bad as discrimination itself.

    It’s one thing to get rid of discrimination, but it is quite another to replace it with its opposite.

  56. 9

    Your derogatory use of “white guy” in asserting that all white males are sexist, xenophobic racists is quite ironic.

    Ah, I forgot about the neverending and bloody struggle of white guys as they struggle to overcome those darn stereotypes. I must be more sensitive.

  57. 8

    Mooney, you’re a racist, sexist hypocrite. Your derogatory use of “white guy” in asserting that all white males are sexist, xenophobic racists is quite ironic.

  58. 7

    “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

    So says a white guy selected to replace a white guy on a court consisting mostly of white guys. I’m still waiting for a decision from Roberts that demonstrates his alleged genius rather than his well-known prediliction for corporate humping. Maybe Bilski? LOL.

    There’s something about white guys whining about how unfair life in America is for white guys that just rubs the wrong way. Not sure what it is. Maybe something to do with slavery or internment camps or women not having the right to vote? Maybe it’s just a personal tic.

  59. 5

    While it is true that the authors suggest ethnic diversity should play a role, the article is completely devoid of reasons WHY it should play a role. The best they can do is to point out that it is a current “trend” for it to be considered. Does its trendy nature automatically make it a good thing? If there are good reasons for it to play a role, the article does not state them. On the other hand, there are obvious reasons why it should not play a role: nobody should be disadvantaged because of their ethnicity. If you take it into account, then some will be advantaged and others disadvantaged. (Note: a much stronger case can be made for ideological diversity, but that is another topic entirely)

  60. 4

    “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

  61. 2

    Isn’t the assertion (on p.5) about Judge Chin being the first Asian-American federal appellate judge outside the Ninth Circuit directly contradicted by the article’s own earlier statement (on p.3) that Judge Kashiwa served on the Federal Circuit for several years in the 1980s?

  62. 1

    “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

    And I have a dream that my children will one day live in a nation where they will not be judged by the color of their skin, but by their capabilities and qualifications.

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