By Eric M. Gutiérrez, Legislative & Public Policy Director for the National Employment Lawyers Association
President Obama routinely gets high marks for his efforts to diversify the federal judiciary by nominating “non-traditional” candidates for federal judgeships. In fact, nearly three of every four nominees confirmed to the federal bench during his Administration are either women or minorities; he also is the first president who hasn’t selected a majority of white males for lifetime judgeships.
Articles and commentary addressing judicial diversity, however, have focused typically on racial, ethnic, and gender diversity. The National Employment Lawyers Association (NELA) recently published a report entitled, “Judicial Hostility To Workers’ Rights: The Case For Professional Diversity On The Federal Bench,” which targets another type of diversity that is equally as important and sorely lacking on the federal bench — professional diversity. Like his predecessors, President Obama’s nominees have largely been corporate lawyers, judges, or prosecutors prior to their nominations, while fewer have been public defenders, legal services attorneys, or public interest lawyers. Even fewer have devoted their professional careers to representing workers and civil rights litigants.
Overlooking qualified candidates whose professional experience includes representing workers in employment, labor, and civil rights cases inevitably reinforces the image of a judiciary that is unfamiliar with, and therefore indifferent to, the plight of everyday Americans. Moreover, as the NELA report points out, the lack of professional diversity has contributed to the increasing judicial hostility workers face in employment cases and the deleterious effect on workers’ access to the courts to vindicate their rights.
Justice Byron R. White remarked on the value of Thurgood Marshall’s professional diversity:
Thurgood brought to the conference table years of experience in an area that was of vital importance to our work, experience that none of us could claim to match. Thurgood could tell us the way it was, and he did so convincingly, often embellishing with humorous, sometimes hair-raising, stories straight from his own past. He characteristically would tell us things that we knew but would rather forget; and he told us much that we did not know due to the limitations of our own experience.
NELA is committed to working with the Obama Administration to shepherd professionally diverse candidates for federal judgeships through the vetting, nomination, and confirmation processes as a means of ensuring that workers receive equal justice under the law, as well as enhancing the quality of decision making for litigants in employment cases.