The Mikkanen Nomination and the White Man

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According to the latest census figures, Oklahoma continues to have the second-largest Native American population in the country (next to Alaska). The reasons for this are as clear as they are old. The "Trail of Tears" -- the forced deportation of tens of thousands of native peoples from the southeastern states in the 1830s, one of the most shameful episodes in American history -- literally ended there, in the eastern part of Oklahoma, in what was then called simply "Indian Territory." Whereas America's native population is now 1 percent of the country's total, Oklahoma's population of Native Americans is now 8 percent, one in about every 12 residents.

Just a glance at the state map reveals the extent of Indian influence upon the state. Here are the names of some of its counties: Kiowa, Comanche, Pottawatomie, Pontotoc, Choctaw, Pushmataha, Sequoyah, Muskogee, Cherokee, Ottawa, Nowata, Okmulgee, Okfuskee, Seminole. There are reservations there -- indeed, within the past two weeks, the Osage Nation, in the northern part of the state, announced that had applied to the U.S. Department of Interior for an edict that would ensure that its casinos remain open while tribal leaders fight in court over the designated status of their land. Even the state's name itself -- Oklahoma -- is a Choctaw word meaning "red people."

So guess how many federal judges in Oklahoma, and in the rest of the United States, have ever been of Native American descent? Over the past nine generations since the Trail of Tears started depositing its survivors, the number is two. Let me repeat: Of the thousands of federal judges who have served across the nation over the past 224 years since Article III of the Constitution created our federal judiciary, there have been only two Native American jurists, according to statistics at the Federal Judicial Center, the official source of such biographical information about the federal judiciary.

And one of those two, U.S. District Judge Frank Howell Seay, who sits today with senior status in Oklahoma, didn't even know about his native heritage until he was in his 50s and on the bench (in other words, his nomination and confirmation were based upon the presumption that Seay was a regular ol' white guy). The other Native American federal judge to ever serve on the bench was Billy Burrage, also in Oklahoma, who was nominated to the bench by President Bill Clinton in 1994. He resigned in 2001. To give you a frame of reference, there have been (just) 170 black federal judges in the nation's history.

I cite these statistics but, candidly, I do not believe them. I think it's more likely than not that other Native Americans over the years have served upon our federal courts and were somehow not counted. Maybe like Judge Seay they just didn't know. Or maybe they knew and didn't want to say. In any event, I want to believe this because if the official record is true it reminds us of yet another scandal perpetrated upon Native Americans by the U.S. government -- one that persists to this day. Two Native American federal judges in all of Oklahoma's history is a travesty upon justice; two in total for the United States is simply disgraceful.

Against this backdrop, and perhaps because of it, President Barack Obama last week nominated to a vacant federal trial court seat in Oklahoma (the Northern District) a man named Arvo Mikkanen. He is, as you might guess from his name, of Finnish descent. He is also of Native American descent -- Cheyenne and Kiowa. He is also a graduate of Dartmouth College. He is also a graduate of the Yale Law School. He also clerked for two federal judges. He is also a veteran federal prosecutor in Oklahoma City. He is also the current president of the Oklahoma Indian Bar Association. He is also a former Chief Justice of the Supreme Court of the Cheyenne Arapaho Tribes. You get the idea. On paper, he's a perfect candidate for the federal bench.

And you probably already have predicted what happened next. Key members of Oklahoma's congressional delegation quickly criticized Obama for nominating Mikkanen. Before the sun had set on the White House's announcement, Sen. Tom Coburn (R-Okla.) denounced the move both on its merits and on the process by which it came about. "I believe he is unacceptable for the position and another example of how politics in Washington neglect to take into account what is best for the people of Oklahoma," Coburn said last Wednesday. "I am also deeply disappointed in the White House's lack of consultation with me on this nomination. I hope we can work together in the future to find a nominee for this seat whom I can support."

The Northern District of Oklahoma encompasses Tulsa, the state's second largest city. The Tulsa World reported Wednesday that the state's other Republican senator, Sen. James Inhofe, "is inclined to oppose the nomination for process reasons," and quoted Rep. Dan Boren, the lone Democratic member of Congress from the state, as saying, "This is yet another example of the missteps of the Obama administration when it comes to federal appointments." So far, the White House has not explained why it purportedly chose not to consult first with the state's delegation before nominating Mikkanen; maybe administration officials figured Coburn and Company wouldn't endorse any nominee, maybe they figured they would put the heat on lawmakers to reject a strong and historically poignant candidate like Mikkanen.

And, so far, none of Oklahoma's congressional leaders have explained why Mikkanen is "unacceptable for the position." An email sent on Thursday morning to Sen. Coburn's staff so far has gone unanswered. The angry comments from lawmakers offered in response to the Mikkanen announcement suggest we are witnessing a collective fit of pique; that Mikkanen's nomination, whatever its substantive merits, is doomed because the White House did not confer first with his home-state senators. What a pity. America has to wait even longer than it already has for another Native American federal judge because of poor protocol by the White House and a hissy fit by two senators? What, have Native Americans not suffered enough indignities?

Even more ominous is the vague (and so far unproven) allegation by Sen. Coburn that there is something about Mikkanen's career or character that makes him "unacceptable." If Sen. Coburn knows something about Mikkanen that the White House doesn't he should say so. If he has a particular concern about Mikkanen's professionalism or politics he should tell us. If he otherwise thinks Mikkanen is unfit to be a judge he should speak up. He has a duty to all Americans, and not just his constituents, to do so. Otherwise, he's just slandered a smart man whose resume and references seem impeccable. Otherwise, he's just another powerful white man telling an earnest Indian that he's simply not wanted.

The Mikkanen nomination is more than just about one man's job promotion and arcane senatorial courtesies. It's about facing our terrible history, in Oklahoma and elsewhere. It's about filling our empty benches with applicants whose nominations make sense. It's about how we continue to treat the millions of Native Americans who live among us. We should at least be able to talk about these things, right?

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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