It's not just the Supreme Court bench: Lower courts with 'incredible sway' are not diverse enough
President Joe Biden has brought renewed attention to the diversity of the Supreme Court as he reaffirms his commitment to appointing the first Black woman to the nation's highest court. But experts and advocates of judicial diversity also want to remind people that the struggle for representation doesn’t stop there.
While the U.S. Supreme Court receives the most attention, most people's direct interactions with judges happen elsewhere in the country's 94 federal district courts and 13 circuit courts, where diversity also continues to lag.
“Obviously, the U.S. Supreme Court is critically important, and it's vital we have a bench that reflects the diversity of the United States,” said Alicia Bannon, director of the judiciary program at the Brennan Center for Justice, a New York-based law and public policy nonprofit. “But ... state and federal courts outside the Supreme Court often fly under the radar but have incredible importance in people’s everyday lives.”
Bannon said the U.S. Supreme Court decides on fewer than 100 cases each year. Meanwhile, state courts hear about 95% of all cases filed nationwide, according to a 2019 Brennan Center report.
Once Biden names his judicial nominee, she is expected to become the first Black woman on the U.S. Supreme Court bench. But the larger judicial system lacks diversity from the bottom up, advocates say.
In 2019, more than 73% of sitting federal judges were men and 80% were white, according to a report from the Center of American Progress, a nonprofit public policy research center. Meanwhile, people of color made up about 20% of sitting judges: 10% were Black, 6.6% Hispanic, 2.6% Asian American, and 0.1% — only two judges — were Native American, the report found.
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Across state supreme courts, women held 39% of the seats while just 17% of justices were Black, Latino, Asian American or Native American, according to a 2021 Brennan Center report. In 22 states, all sitting supreme court justices were white.
“The overwhelming majority of cases are heard in our lower federal courts, and these federal judges hold incredible sway over life in America,” said Stephanie Wylie, associate director of courts and legal policy at the Center for American Progress. “But for far too long, our judiciary as a whole has been overwhelmingly white and male.”
‘Judges should reflect the communities they serve’
Diversity helps build a judiciary with a larger range of lived experience, which ensures decisions reflect viewpoints that are often overlooked, said Demelza Baer, director of public policy for the Lawyers' Committee for Civil Rights Under Law.
As a result, she said judicial diversity also affects decision-making and can help offset discrimination.
“Judges should reflect the communities they serve,” she said. “We have to have the court system be able to reflect the rich diversity of our country.”
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Increasing judicial diversity also increases public trust in the judicial system, Wylie said.
“When people don't see themselves reflected in their public institutions, there is an increasing perception that it is unfair, particularly to underrepresented groups,” she said. “... Having a court that represents all communities is vital to the perception of legitimacy of the federal courts in the eyes of the public.”
Boosting diversity today can also fuel diversity tomorrow by creating role models for aspiring judges, said Cecillia Wang, a deputy legal director at the ACLU.
Wang said becoming a judge never crossed her mind when she began her career, partly because there was a lack of women of color on the bench or judges who had experience in civil rights law, a professional background largely underrepresented among judges.
She hopes this won't be the case for young lawyers in the future.
"As this glass ceiling shatters and more young lawyers and law students see people who share their identities and experiences on the bench, the more they will be able to envision that for themselves," she said.
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Biden has already appointed some of these potential role models from marginalized communities. The latest is Nusrat Jahan Choudhury, who was nominated in January and would be the first Muslim woman and Bangladeshi American to serve as federal judge.
Out of Biden’s 83 judicial nominees so far, almost 75% have been women and nearly 69% have been Black, Hispanic or Asian American. Specifically, 24 have been Black, 17 Hispanic, and 16 Asian American and Pacific Islanders.
Of the 183 federal judges former President Donald Trump nominated as of July 2019, 78% were men and 84% were white, according to the 2019 CAP report. Only two judges, or 1%, were openly part of the LGBTQ+ community.
“I'm hopeful for the direction we’re moving in,” Wylie said, calling Biden’s appointments “a historic, record-shattering precedent for inclusion.”
Maer acknowledged recent trends were encouraging but said there is a long way to go.
"It's going to take many, many years to reach a federal judiciary that is fully reflective of the rich diversity of our country," she said.
Another gap is in LGBTQ+ representation, said Sharon McGowan, legal director of Lambda Legal, a civil rights organization focusing on the LGBTQ+ community.
Only 14 active federal judges — or 1.6% — openly identify as gay or lesbian, according to the report. There has never been an openly transgender, nonbinary or bisexual nominee, according to a Lambda Legal report published Tuesday.
The report, which states Biden "fell short on LGBTQ+ representation," said the president has nominated five judges — or 6% of his total nominations — who openly identify as LGBTQ+.
“We saw wave after wave of judicial nominations being put forward and kept finding ourselves saying, “But where are the LGBT people?’” McGowan said.
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Overcoming barriers to diversity
Overcoming barriers to judicial diversity requires looking at the pipeline leading up to judicial appointments, several experts told Paste BN.
Some recommendations include making law school admissions processes more equitable and accessible, offering more resources to law students from marginalized communities, and establishing programs to help these students land legal jobs that traditionally lead to judgeships.
Students from minority communities made up about 30% of incoming first-year law students in 2020, Reuters reported, based on American Bar Association data.
People of color and women also remain underrepresented among law firms, according to a 2020 report from the National Association for Law Placement Inc. People of color accounted for about 10% of all partners in major U.S. firms while women made up 25%. Less than 4% of all partners were women of color.
Judicial candidates from marginalized communities often have less access to wealthy donors who can help fund campaigns, Bannon said, adding that "so many highly qualified candidates never get their shot to throw their hat in the ring."
“It really takes effort at many levels, not just when it reaches the point of the president making a nomination, but also ... throughout the pipeline leading up to a nomination,” Baer said.
Civil rights lawyer Juvaria Khan said people of color are underrepresented among appellate attorneys and judges, even though their “rulings disproportionately impact communities of color.” Seeing this disparity and the lack of resources offered to law students of color, she founded the Appellate Project in September 2020.
The organization provides resources, training, mentorship and networking opportunities, and workshops on legal writing and other core skills for law students of color interested in entering the appellate field. The project has seen over 350 students go through its program with many of them landing competitive internships, fellowships and clerkships afterward, she said.
“If we want to address the lack of diversity in our courts, we have to recognize that the problem starts early on,” Khan said. “Making this kind of systemic change can be intimidating, but systems are made up of people. These changes are possible if we’re willing to do the work.”
Contact News Now Reporter Christine Fernando at cfernando@usatoday.com or follow her on Twitter at @christinetfern.