Diversity on the federal bench: Obama admin deserves credit for nominating diverse candidates

[usregimechange]

By Carl Tobias

After President Barack Obama won the election, and even during his campaign, he pledged to expand diversity across the federal government. The president's cabinet choices show that he is making good on this vow. The federal bench is another significant field that needs increased diversity, especially in terms of ethnicity and gender. Now that Obama is in his presidency's ninth month, this is an excellent time to analyze the judicial selection record that Obama has compiled since assuming office. The review shows that the chief executive deserves substantial credit for nominating large numbers and percentages of highly qualified, diverse candidates whom the Senate should promptly approve.

Women and ethnic minorities have long been underrepresented in the federal judiciary compared with the U.S. population. Eighty-four percent of federal judges are white. Female jurists comprise 20%. African-Americans constitute 8%. Out of the almost 1,300 sitting federal judges, a mere 11 are Asian-American and only one is a Native American. A significant percentage of the 94 federal districts has never had a jurist who is a woman or a person of color.

Expanding ethnic and gender diversity in the federal courts will afford numerous benefits. Many minority and female judges can assist their colleagues in understanding and resolving complicated issues that relate to discrimination and abortion, which the bench confronts while helping restrict prejudice in the federal justice process. Citizens also have more confidence in a federal judiciary that reflects the nation's diverse population.

RECENT NOMINEES

Obama has adopted measures that will increase ethnic and gender diversity, as manifested in his judicial nominations to date. Justice Sonia Sotomayor is the classic example. Moreover, his 10 appeals court nominees include three African-Americans, one Asian-American and four women, while his 10 district court nominees include four African-Americans, three Asian-Americans, one Latino and four women.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202434429480&slreturn=1&hbxlogin=1

[Igel]

1. I'll dissent.

I think the pool of people sitting on the bench should look like the people who practice before the bar. Not reflect the numbers precisely, but certainly be too far from the averages.

Anything else means selectively choosing not necessarily for talent but for genitalia and skin melanin content.

By this standard women are underrepresented. Instead of 20%, they should be much closer to 40%.

By this standard blacks are overrepresented. In 2000 4.2% of practicing attorneys were black, and while I can't imagine that number being markedly different from what it was a decade ago, it creates a problem. If jurists have to be 12% black and all law firms have to be 12% black, where are they going to come from? Moreover, if the pool of jurists reaches that magical 12.5% number, doesn't it rather mean that there's a bit of overt selecting people by race? After all, the claim that "only" 8% of jurists are black, less than their percentage of the general population, immediately smacks of some sort of racist selection process at the level of choosing judges. (When the real problem is a combination of law school admission, graduation, and then passing the bar.)

Asians are underrepresented. Out of 1300 we'd expect on the order of 40. The numbers are small enough that you start having quirky stats, however.

There should be more Latinos than Asians. Out of 1300, that means about 12 more. If you're going by percentage of the general population, they're incredibly underrepresented.

Obama's appointments, if they're meant to reflect the population of lawyers, are skewed. If they're meant to reflect the general population, they're even more skewed.

There's a reasonable account for part of the skewed representation, beyond not having the attorney population reflect the overall population (for a variety of reasons). That is the role age and experience plays. The vast majority of minority and women attorneys have joined the ranks in the last 20-30 years. Since you don't typically appoint lawyers as judges for a few years after they get their JD, it means that the jurist population is going to reflect a slightly older state of the attorney population's demographics.

(And while I'm posting on a thread that has elicted slight interest, I'll make my outrageous prediction of 2009--I limit myself to one. That is, if Obama is very unlikely to win a second term, or if he wins a second term, as soon as he has what amounts to a clear lame-duck status he will nominate himself to SCOTUS, or at least the 7th circuit court of appeals.)