Nicole Cardoza Nicole Cardoza Nicole Cardoza Nicole Cardoza

Make the justice system more diverse.

The death of Justice Ruth Bader Ginsberg is heart-wrenching. Her loss is likely to transform the upcoming election. Although our influence on the federal Supreme Court nomination is limited, there's a lot more we can do to promote judicial diversity throughout state and federal courts. Today we dive into the importance of representation and the true weight of this election. 

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TAKE ACTION

  • 1. Vote this November for a President that is more likely to choose a diverse, liberal Supreme Court nominee. Hint: it’s not Trump.

    2. Nominations for Supreme Court justices are confirmed by the United States Senate, which is currently a Republican majority. It takes four seats to flip the Senate to a Democratic majority, which, based on current news, is more likely to confirm a liberal judge. Choose a Senate state battleground and support a candidate more likely to confirm a diverse, liberal Supreme Court nominee (Ballotpedia). Donate, phone bank, or volunteer if you’re in-state.

    3. Support the MCCA LMJ Scholarship, which grants scholarships of $10,000 to students for their first year of law school to increase the diversity pipeline. Learn more and donate.

GET EDUCATED

Ruth Bader Ginsburg, the second woman to serve on the Supreme Court known for her advocacy for women’s rights, passed away Friday from complications from metastatic pancreatic cancer. She was 87 (NYTimes).

And as the nation mourns the loss of this trailblazing individual, the Trump administration is wasting no time to appoint a replacement. Trump released his shortlist of potential judges a couple of weeks ago, many of whom are men, nearly all are white, and all represent conservative views and values (NYTimes). If the administration does move forward, it will ensure that our Supreme Court has a conservative majority for years to come. Six of the nine seats would be held by Republican appointees (NYTimes). Justice Ginsburg was keenly aware of this, and days before her death,  she dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed” (NPR). 

Our nation is in the midst of an upheaval, one that is likely to transform the fabric of our democracy. That will be cemented through the decisions of our federal judicial system, particularly our federal Supreme Court. The added weight of choosing a Supreme Court nominee is likely to upend this election. Read more about the most significant Supreme Court cases in our history, many of which defined the rights and opportunities for marginalized individuals (Business Insider).

Although our Supreme Court justices hold significant power in the federal system, we can also do more to build a more diverse pipeline and increase representation across the federal justice system. The Supreme Court makes less than 100 decisions on cases each year, and although they are critical, many more are decided by the 94 federal district courts, and the 13 circuit courts that act as the first level of appeal (U.S. Department of Justice). It's critical we increase representation here, too, as we try to chart a more equitable future for us all.

Let’s start with the facts. As of 2019, more than 73% of sitting federal judges are men. 80% identify as white. Of the 20% that identify as people of color, 10% are African American, 6% are Hispanic/Latinx representation, and 2.6% are Asian. And there are only two American Indian judges sitting on the federal bench, making up just 0.1 percent of the federal judiciary compared with 0.7 percent of the U.S. population. In addition, less than 1% of judges publicly identify as LGBTQ+ (Center for American Progress). The first judge of color on the Supreme Court, Justice Thurgood Marshall, was appointed in 1967, 191 years after the founding of America (Washington Post). 

The Minority Corporate Counsel Association (MCCA) has an active list of judges based on race/ethnicity and gender in each district, and a list of the diversity of judges appointed by each president through history (MCCA). The authors of the Center for American Progress study note that there’s no publicly available data on judges with a disability, which is “problematic and deserves more attention” (Center for American Progress).


Data for state courts is also disappointing. Only 15% of state supreme court seats nationwide are “held by individuals who are Black, Asian, Latino, or Native American,” and women hold 36% of state supreme court seats. This means that 24 states currently have an all-white supreme court bench, including eight states in which people of color are at least 25% of the state’s population (Brennan Center).

 

A few former presidents – both Democratic and Republican – have committed to diversifying the federal judiciary, including President Carter and President Clinton. But President Obama made the most significant strides. Out of his 324 judicial nominees during his presidency, over 60% were people of color, women, and sexual or gender minorities. He also nominated and confirmed more women than any other president in history (Center for American Progress). These efforts have regressed during the current administration; President Trump’s judicial picks, who have been 91% white and 81% male, are “the least racially and ethnically diverse of any presidential administration over the past 30 years” (Center for American Progress). 



This might be considered common sense, but it’s important to note: the diversity of a federal judiciary increases the likelihood that decisions will represent the needs of marginalized communities. Judge Tashima, who was appointed in 1996, lived in an internment camp as a child during World War II. Read more about internment camps and the use of the word “internment” in a previous newsletter. He spoke about how that experience influenced his decision-making. The data proves it: he voted for more equal protection opinions since being appointed compared to his Ninth Circuit colleagues (California Lawyers Association).

“Because we are all creatures of our past, I have no doubt that my life experiences, including the evacuation and internment, have shaped the way I view my job as a federal judge and the skepticism that I sometimes bring to the representations and motives of the other branches of government”.

Atsushi Wallace Tashima,  Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, via California Lawyers Association.

Furthermore, studies conducted on federal appellate courts have found that one female judge’s presence will increase the likelihood that male judges will make decisions for cases involving sexual harassment or discrimination will be in favor of the defendant. It also found that having at least one Black judge increases the likelihood that non-Black judges will support plaintiffs claiming violations of both the Voting Rights Act and affirmative action cases (Princeton).



A more diverse court would also sway public trust, which is increasingly important as younger voters feel disillusioned by our political system. At the 1999 National Conference on Public Trust and Confidence in the Justice System, three pressing issues were identified: unequal treatment in the justice system, high cost of access to the justice system, and lack of public understanding (Perceptions of Fairness and Diversity in the Florida Courts). A 2014 Pew Research Center survey found that 68% of Black people feel that the courts mistreat Black people, compared to 27% of white people, and 40% of people who identify as Hispanic (Pew Research Center).

“People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”

Elena Kagan, Associate Justice of the Supreme Court of the United States, via NYTimes.

Part of creating a more diverse federal judiciary is diversifying the pipeline, which means dismantling the historical racism and discrimination embedded in our education system. It also means recruiting and retaining candidates in associate positions. Despite progress from years prior, recent data indicates that outcomes have stagnated, and in some cases, regressed (NYC Bar). A particular concern is attrition. In 2016, 36.2% of first-year associates represented marginalized communities, but by the eighth year, that percentage dropped to 20.5%, a significantly higher attrition rate than white associates during the same period (NYC Bar). And public criticism of the federal judiciary system can dissuade talented candidates from pursuing future opportunities. 

But progress isn't completely unfounded. Consider the latest news from Colorado. In the past year and a half, Colorado’s Democratic governor has appointed more Black women to the statewide bench than his 42 predecessors combined (Essence). There are currently 8 Black women judges serving concurrently on Colorado’s statewide judiciary. In the world of business, the MCCA reports that the number of female general counsels and general counsels of color at Fortune 1000 companies is the highest recorded in the past 15 years (law.com).

By January 2021, over 200 federal will be eligible for senior status, which means new candidates can take their place. And of those 200 judges, more than half are white males (Center for American Progress). Despite our outrage over the federal Supreme Court composition, deciding who to nominate is up to the president. It’s up to us to use our voices to influence decisions on the federal and state level and invest in diverse candidates to support qualified candidates.

Key Takeaways

  • The death of Justice Ruth Bader Ginsberg has made the appointment of a new Supreme Court justice a critical component of the upcoming election

  • Efforts to increase representation in the federal judiciary have been dismantled by the Trump administration

  • Diversity of the federal judiciary influences public perception of the political system

  • Increasing the diversity pipeline can help ensure more diverse candidates are nominated and confirmed

  • We must vote for a president that will nominate a diverse Supreme Court justice candidate, and ensure a Senate that's more likely to confirm one

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