Why Being “The First” Matters

MICHELLE SILVERTHORN,(Illinois Supreme Court Commission on Professionalism)

I was going to write a blog post about the Senate confirming Todd Hughes to the Federal Circuit last week. Todd Hughes will be the first openly gay male to serve as a federal appellate judge. My post was going to acknowledge President Obama for appointing far more diverse candidates to the judiciary than any of his predecessors (Mr. Hughes’s confirmation was swiftly followed by the swearing in of Sri Srinivasan, the first South Asian federal appellate judge.)  Despite their political struggles, both the President and the Senate have managed to make significant strides in diversifying the judiciary by appointing and confirming highly-qualified judicial candidates.

And then, David Mowry, senior in-house counsel at Xerox, wrote a blog post on Above the Law asking the simple question: “Are Diversity Milestones Just The Privileged Patting Themselves On The Back?”

As some of you who’ve read my previous blog posts know, I’m not a ‘shipper for diversity initiatives.  I think they are necessary and important (see below) but I do see the shortfall between all the time and money we’ve spent on diversity, and actual results.  In fact, the Institute for Inclusion in the Legal Profession is having a two day program in Chicago and New York that discusses that very issue.  If you have the time and resources, I encourage you to attend.

Having said that, I do not agree with Mr. Mowry and his provocatively titled blog post.  In the post, he asks, “Who gives two whits that Todd Hughes is gay?  Is it really progress?”  Then he adds,

“I find it reprehensible that his sexual orientation gets any mention. Just as revolting as the “First Black, First Latino” — it’s as though white media pats itself on the back every time we let one of “them” into the club. “See, we let one of them sit on the bench, now all our bigotry is disappeared — yay ‘Murica.’”

I agree with some of his other statements in the post.  For example, he says that input from all backgrounds is good, and that a federal judge’s judgment should ideally be separate from any personal “peccadillos,” “backgrounds”, “orientations” or “religions.”

However I don’t think it’s “revolting” whenever the “white media” (whatever that is) mentions when someone of a certain race, or nationality, or in Mr. Hughes’s case, sexual orientation, is the First appointed or elected to a position of authority in this country.  My response could probably begin and end with Election Day 2008, but I’ll take it a little further.

Now I’m not a diversity expert my any means.  But I am a young, black, female immigrant.  And from my perspective, being the First matters, whether you’re the First Black President or the First Hispanic Justice or the First Openly Gay Federal Judge.

It matters because Step One to eliminating issues of bias and stereotyping is to see people, especially leaders, contradicting our biases and dissolving our stereotypes.  The prevailing image of a judge as an older, white, straight, male can only be challenged if there are diverse persons – gay, black, Muslim, young, Hispanic – publicly taking on these roles.

It matters because it mitigates the belief among the young non-majority, such as myself, that no matter how hard I may work, I will never become X person (say, President of the United States) because I’m not of the majority religion, or race, or gender, or sexual orientation.  If someone did it before me, I can envision myself doing it as well.

Finally, it matters because it is a victory.  When President Obama names the first gay man to a federal clerkship, it is a victory for the thousands of men and women who have fought, both publicly and privately, for same sex rights.  And in the battle for equal rights, victories are mostly personal and small with a handful of public ones interspersed in between.  We should celebrate them all.

So yes, it does matter that Thurgood Marshall was black, that Sandra Day-O’Connor is a woman, that Ruth Bader-Ginsburg is Jewish, that Sonia Sotomayor is Hispanic, and that Todd Hughes is gay.  Whether you look at it from a sociological, historical or individual perspective, naming the First to a position from which persons of their race or religion or gender or sexual orientation have traditionally been excluded, is true progress.

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