Supreme Court Justice Ruth Bader Ginsburg wants President Donald Trump to select a Native American jurist as his next nominee to the United States Supreme Court, she has told close legal colleagues and clerks. More than any other case, Ginsberg regrets her decision in Oneida vs Sherill (2005) — a case in which she drafted a majority 8-to-1 opinion that Native Americans have viewed as a callously racist denial of justice ever since.
Over many years the Oneida Nation was buying back land that it was defrauded of in the early 19th century, parcel by parcel in the County of Sherill, located in the Mohawk River Valley of Upstate New York. Even though the law was clear and the evidence was obvious, Ginsburg refused to allow the Oneida Nation to restore those lands.
She insisted — not out of law or precedent, but motivated merely by a personal sensibility — that only the federal government would be allowed to hold the parcels that the Oneida Nation had repurchased. She required that the federal government hold those lands in trust for the Oneida people. Rather than having been able to govern the community’s landbase themselves, the Tribe must get the approval of the Secretary of the Interior for even basic lease arrangements.
“That decision was a devastating blow to the Oneida Nation, which had aspired to restore ownership of ancestral lands directly, rather than being treated as wards of the federal government who required the Secretary of the Interior to hold that land for us in trust,” one member of the Oneida Nation with close ties to Ray Halbritter explained to The Chronicle.
“If there were a Native American perspective on the Court, it would meaningfully improve the Court’s treatment of indigenous communities,” he explains. “Because of all the constitutional law questions relating to federal Indian law, the Court has a disproportionate impact on Native American communities because it typically hears a case or two dealing with Tribes each session.”
Native Americans are a demographic that has been very badly hurt by big-government policies that sought to destroy their cultures, to end their traditional governments, to eradicate their languages, to change their religion, to assimilate their children, and to micro-manage their communities through the Secretary of the Interior.
“So much justice has been denied to Native American communities because they have not had a seat at the table,” explains one former law clerk who is familiar with Ginsburg’s thinking. “It would be an incredible moment.”
It’s unclear if Trump will heed the advice, though many political observers think the timing could be right. Trump is unlikely to nominate another male in the #MeToo era, particularly in light of the Brett Kavanaugh confirmation. But he’s also unlikely to nominate Amy Coney Barrett, whose name has been widely bandied about as a fiercely conservative jurist, but whose nomination would instigate a national debate on abortion during an election year when the President is unlikely to desire it.
Because the Court has a solid conservative 6-3 majority, observers predict that President Trump will have the political latitude to nominate a moderate or a centrist — especially if the nominee appeals to women voters, whom Trump is working hard to court.
Many Court observers — including Ginsburg herself — have suggested that United States District Court Judge Diane Humetewa could be exactly the right consensus nominee. Humetewa is a centrist jurist who presides over the federal Court district of Arizona.
When former President Barak Obama nominated her to the federal bench in 2014, she secured Senate confirmation in a vote of 96-to-0. In 2007, when former President George W. Bush nominated her to serve as United States Attorney for Arizona, she came highly recommended by both Senators John McCain and John Kyl.
Having already been confirmed by the Senate twice, both times in a narrowly divided chamber, it would be difficult for either party to filibuster her nomination — and it’s widely expected that Senate Minority Leader Chuck Schumer would jump at the opportunity to do so during an election year, even if Schumer has to fabricate the political opening.
Humetewa has a compelling personal narrative. She started working at the U.S. Attorney’s Office in 1986 as one of the office’s first victim-witness advocates in the federal criminal justice system and helped develop a victim advocacy model that was replicated nationally for similar jurisdictions. She left the office to attend the Sandra Day O’Connor Law School at Arizona State University where she graduated in 1993. She rejoined the U.S. Attorney’s Office in 1996 as an Assistant U.S. Attorney.
Humetewa was counsel at the Department of Justice in the Office of Tribal Justice. She later served as deputy counsel for Senator McCain, and as majority counsel for the United States Senate Committee on Indian Affairs when McCain served as its Chairman.
While an Assistant U.S. Attorney, Humetewa prosecuted violent crime cases including child sex crimes, homicides, assaults, bank robberies, and theft of cultural patrimony cases. When she worked in the Department of Justice’s civil section, she defended lawsuits brought against the United States under the Federal Tort Claims Act and represented the United States’ interests in Bankruptcy Court.
Humetewa has served on the Hopi Tribal Appellate Court since 2002 as a judge pro-tem, and as an ad hoc member of the U.S. Sentencing Commission.
Her nomination would be likely to excite Native American voters in Arizona, New Mexico, Colorado, and Nevada — where, in evenly divided electorates, the indigenous vote could deliver those states in the electoral college. For Trump, it could be a political masterstroke and a spectacular legacy-shaping moment for his presidency.