BIDEN HAS OPPORTUNITY TO DIVERSIFY FEDERAL JUDGES

White men make up majority of jurists in courts nationwide

Despite decades of pushing for more diversity on the federal bench, White men still make up the overwhelming majority of judges in the nation’s trial and appellate courts.

The current makeup of the federal judiciary speaks not only to historic inequities but a legacy of lifetime appointments that former President Donald Trump left in his drive to put a conservative stamp on the courts. Of his appointments — which now account for more than a quarter of active judges — 76 percent were male and 84 percent White.

The pressure is now on President Joe Biden to balance the bench with a broader spectrum of legal talent, including choosing from a pool of local attorneys to fill open seats on the district court that serves San Diego and Imperial counties.

On Tuesday, Biden’s first raft of judicial nominees to seats elsewhere in the country seemed to reflect that intent, with three African

American women chosen to serve in circuit courts, a candidate who would be the first woman of color to serve as a federal judge for the District of Maryland and a man who would be the nation’s first Muslim American federal judge.

“This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession,” Biden said in a statement. “Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong.”

Just days earlier in congressional testimony, U.S. District Court Judge Carlton Reeves — the second African American to serve in the federal judiciary in Mississippi

— challenged current and future president administrations to act boldly, “because our present trajectory risks a crisis of legitimacy.”

The hearing last week, in front of a House judicial subcommittee, was believed to be the body’s first to focus singularly on the issue of diversity on the federal bench.

Biden currently has 69 judgeships to fill, with at least another 28 pending. Most of the openings are in trial courts, an area that took back seat to Trump’s focus on filling appellate seats.

In San Diego, there are five vacancies, and the semiretirement of U.S. District Judge Anthony Battaglia to senior status at the end of the month will open a sixth. That’s nearly half of the 13 authorized active seats in the district.

“Righting the ship take is going to take more than a return to past practices,” warned Reeves.

‘Out of step’

Federal data on the current makeup — both nationally and locally — present a stark picture.

Of the nation’s roughly 1,000 sitting district judges — both those serving in active judgeships and those who continue to hear cases on senior status — 79 percent identify as White.

Less than a third — 27 percent — are women. Women of color are even less represented, at 7 percent.

Adding appellate judges to the mix widens the racial/ ethnic gap even more.

“Our national courts are out of step with our nation’s demographics,” testified Maya Sen, a professor at Harvard University and author of “The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary.”

According to the census, the United States population is 60 percent White, 18.5 percent Latino, 13 percent Black, almost 6 percent Asian American.

In San Diego, 13 of the 17 sitting district judges are White. The other four identify as Latino (2), Asian American (1) and African American (1).

Only four sitting judges are women; all are White.

“And that’s in the 21st century,” said Yahairah Aristy, a county deputy public defender and executive director of the Lawyers Club of San Diego, a bar association that advances women in law. “That tells us that we just celebrated the centennial of the 19th Amendment and still equality escapes us when we look at system representation.”

Public defense experience such as Aristy’s is also vastly underrepresented on a federal judiciary that is dominated by former prosecutors and corporate lawyers. Furthermore, the most prestigious judicial appointments often hail from a handful of elite Ivy League schools, a point that drew particular concern from Rep. Darrell Issa, R-Bonsall.

“I, for one, would like to see at some point more diversity on the Supreme Court,” said Issa, a Kent State University alum and ranking member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet. “It appears as though you must go to Harvard or Yale to be considered in many cases.”

The Lawyers Club is among many groups that are lobbying Biden to consider to a wide range of people not traditionally well represented in the judiciary.

The group penned a letter to the White House, as well as to Sen. Dianne Feinstein, D-California, and the San Diego-based chair of her judicial selection committee. Judicial nominees are traditionally vetted by and recommended by home state senators but ultimately appointed by the president and confirmed by the full Senate.

A spokesperson for California Sen. Alex Padilla, who recently took office and will have his own selection committee, said nominees will “reflect California’s extraordinary diversity, bring a breadth of practice experience and lived experience, and demonstrate a longstanding commitment to equal justice and public service.”

Weeks after Biden’s election, White House counsel put Democratic senators on notice in a letter that said the president is “eager to nominate individuals who reflect the best of America, and who look like America.” The letter urged senators to name people who bring “a wide range of life and professional experiences, including those based on their race, ethnicity, national origin, general, sexual orientation, gender identity, religion, veteran status and disability.”

Biden has also pledged that, if given the opportunity to fill a U.S. Supreme Court seat, he would nominate a Black woman, which would be a first for the highest court.

Why diversity matters

Arguments to diversify the bench often center on the need to foster public trust in the courts — and to maintain that trust in an era of declining mistrust in government. Erode trust in the courts enough and it could be harder to enforce court orders, experts say.

Sometimes, just the perception of getting a fair shake is as powerful as the actual outcome, judges and legal experts testified Thursday.

Massachusetts Bankruptcy Judge Frank Bailey, who is White, said it was a painful lesson for him to learn early on when an unrepresented Black litigant declared that he could not get a fair hearing in his court.

“Later I thought, ‘Of course he feels that way,’” Bailey testified. “He walked into a courtroom, and the judge was White, all the courtroom staff were White, all the court security that he’d encountered were also White. And if he went to our clerk’s office he would see all of the photographs of our judges on the wall and they were all White.”

The bankruptcy bench, which is made up of judges appointed by circuit court of appeals judges, is the least diverse of the federal courts — under 3 percent African American, 2 percent Latino and 2 percent Asian American.

“My fear is that unless judges on the court and our staffs reflect communities we serve, it may be that people in those communities may not feel that they are welcome in our courts,” Bailey said.

While it is drilled into judges to keep their personal views and biases in check, many judges said it’s unrealistic to think that lived experiences don’t come into play to some degree.

“We are all shaped by our lived experiences and use them to round out the black letter of the law,” said the Hon. Bernice Donald, a judge for the 6th U.S. Circuit Court of Appeals, who has logged many career firsts as an African American woman.

And a diversity of lived experiences means judges are “better able to understand the complexity of the American experience in the cases that come before them,” Reeves said.

For instance, Supreme Court Justice Ruth Bader Ginsberg used her experience as a woman to school her male colleagues on what a strip search would feel like to a 13-year-old girl during discussion in one case, as one judge witness pointed out. And Justice Clarence Thomas, who is Black, educated his White colleagues on the history of Ku Klux Klan intimidation in a crossburning case.

How to diversify

The dearth of diverse judges often begs the pipeline question: Are the law school and prominent job opportunities going to a wide range of attorneys to create an inclusive pool of judicial candidates?

The data shows promise: Nationally, women outnumber men in recent law school enrollees, and minorities account for a third of all students, according to survey data from the American Bar Association.

The trend is similar at the University of San Diego School of Law. Racial/ethnic diversity was higher at the more affordable California Western School of Law, with 46 percent minorities.

While the pipeline must continue to improve — from empowering children at the elementary school level to supporting mothers in corporate law — the current makeup of the courts points to an appointment problem, experts say.

“We have really an abundance of qualified candidates,” Stacy Hawkins, a professor at Rutgers Law School, testified.

“This is not really about having an inadequate supply. This is about having a deliberate and conscious commitment to improving the diversity on the bench,” Hawkins said.

How to diversify the bench brings up sticky questions that commonly surround the debate around affirmative action.

“It would be especially wrong to select judges based on their race,” said Judge James Ho of the 5th U.S. Circuit Court of Appeals, who immigrated to the U.S. from Taiwan as a child.

“I’m the only Asian American immigrant on my court. No one should assume I’m more likely to favor Asians or immigrants or anyone else, or that my colleagues wouldn’t,” Ho said.

Rather, it’s about opening the opportunities to all, said Donald.

“We’re saying all people who are talented and have something to contribute should be able to compete without the barrier of race or gender or socioeconomic status.”