Judicial Diversity

  • June 9, 2011
    Guest Post

    By Amy Matsui, senior counsel at the National Women’s Law Center. This is a cross-post from NWLC’s blog

    Rome, I hear, was not built in a day. Neither is a diverse federal judiciary. When Justice Ginsburg graduated from law school (1959), there were two female federal judges. When Justice Sotomayor graduated from law school (1979), that number had increased to 35. In 1988, the year I graduated from high school, women made up about 7% of federal judges. Over the past three decades, an increasing number of women have joined the legal profession. In recent years, law schools have seen the number of female students increase, so that they now make up nearly half of all law students. Today, women make up roughly 30% of the federal bench and for the first time in history, that holds true in trial courts, courts of appeal, and the highest court in the land, the Supreme Court.

    The increased number of women on the federal bench is a fact worthy of celebration, because when women are fairly represented, our federal courts are more reflective of the diverse population of this nation. In addition, when women are fairly represented on the federal bench, women as well as men may have more confidence that the court understands the real-world implications of its rulings. For both, the increased presence of women on the bench improves the quality of justice: women judges can bring an understanding of the impact of the law on the lives of women and girls to the bench, and enrich courts’ understanding of how best to realize the intended purpose and effect of the law that the courts are charged with applying.

    But while we cheer this progress, it’s nowhere near time to sit back and think that our work is done.

  • February 14, 2011
    Guest Post

    By Jeremy Bressman, a second year student at Harvard Law School. Jeremy's interests include civil procedure, sentencing law, and federal courts. This guest blog was originally posted on the blog of the Harvard Law & Policy Review, the official journal of the American Constitution Society.

    A few weeks ago, President Obama nominated Paul Oetken for a seat on the Southern District of New York. Oetken is eminently qualified for the position: After graduating from Yale Law ('91), he clerked on three courts, including the Supreme Court for Justice Blackmun, spent time at two major law firms, and worked in both the Office of Legal Counsel and the White House Counsel's Office. Perhaps most importantly, if appointed, Oetken would become the first openly gay man to sit on the federal bench. (A nominee to the Federal Circuit, Edward Dumont, is also openly gay; a judge on the Southern District, Deborah Batts, is currently the only openly gay female on the federal bench.)

    A few days later, the President nominated Arvo Mikkanen to a seat on the Northern District of Oklahoma. Like Oetken, Mikkanen certainly has the qualifications to be a federal judge: a Dartmouth College and Yale Law ('86) grad, Mikkanen himself clerked for two judges, has worked in both private practice and as an Assistant US Attorney, and is a former judge on numerous American Indian courts. If appointed, Mikkanen would become only the third Native American to ever sit on the federal bench. One of those judges, Frank Howell Seay of the Eastern District of Oklahoma, didn't even learn of his Native American heritage until he was in his 50s.

    See the rest of Bressman's post here.

  • August 25, 2010
    For the second time a federal appeals court panel rejected jury awards in favor of African-American plaintiffs who alleged discrimination against the poultry company Tyson. In a 2-1 decision, the U.S. Court of Appeals for the Eleventh Circuit found that a Tyson manager's use of the word "boy" to address a black man, John Hithon, did not amount to evidence of racial discrimination.

    Hithon denied a promotion at the Gadsden, Ala., poultry plant, argued that manager Tom Hatley had discriminated against him, citing, among other things, Hatley's derogatory usage of "boy." In 2002, Hithon and other employees of the plant lodged a lawsuit alleging racial discrimination and a jury found in their favor awarding hundreds of thousands in compensatory damages and $1.5 million in punitive damages. A federal magistrate judge invalidated the jury's verdict maintaining that racial discrimination was not proved, and in 2005 a panel of the Eleventh Circuit upheld that ruling. But the U.S. Supreme Court heard an appeal of the case and found that the use of the word boy could prove racial bias. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage," the high court ruled in remanding the case to the Eleventh Circuit. The remand also produced another jury trial, which again found in favor of Hithon and the other black employee, Anthony Ash.

    But the Eleventh Circuit, in its recent ruling (pdf) in Ash v. Tyson Foods, Inc., refused to budge from its earlier decision, concluding that there was not new evidence to show the use of the word was discriminatory, Law.Com reported. But U.S. District Senior Judge David D. Dowd Jr., appointed to the bench by President Reagan, in a dissent said the jury verdicts should have been upheld.

    In a column for Daily Report, Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, wrote that the latest decision is a troubling reminder of the need for diversity on the Eleventh Circuit.

    Bright wrote:

    These two white judges [referring to Eleventh Circuit Judges Edward E. Carnes and William H. Pryor, Jr., of the majority in Ash], residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man ‘boy' than 24 Alabamians selected for two federal juries.


    This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.


  • December 1, 2009

    Operating under the spectre of additional filibusters, the Senate considered two of President Barack Obama's judicial nominations today.

    The Senate Judiciary Committee, with only Senators Sheldon Whitehouse and Al Franken present, held a hearing on the nomination of Rhode Island Superior Court Justice Rogeriee Thompson to the U.S. Court of Appeals for the First Circuit. "So far, so good," said Whitehouse, who added that the absence of opposition at Thompson's hearing could hamper later attempts to obstruct her nomination. Upon confirmation, Thompson would become the first African-American and only the second woman to serve on the Boston-based appellate court.

    Considering the nomination of Judge Jacqueline Nguyen to the Central District of California in Los Angeles, the full Senate voted 97-0 for confirmation. Judge Nguyen is the first Vietnamese-American ever to serve as an Article III judge.

    Meanwhile, conservative activists are calling on the Senate to block two of Obama's nominees to federal trial courts.

  • November 20, 2009

    Writing for The Root, Professor Sherrilyn Ifill takes issue with an op-ed by Judge J. Harvie Wilkinson III, published in The Washington Post earlier this year. Ifill, a University of Maryland law school professor, describes the piece as "a stunning breach of manners and an embarrassing display of unwarranted hysteria about what Wilkinson described as rumors of a political 'takeover' of the 4th Circuit."

    In his piece, Judge Wilkinson, former chief judge of the U.S. Court of Appeals for the Fourth Circuit, wrote that "the U.S. Court of Appeals for the 4th Circuit is set for a takeover," at the hands of President Obama. 

    "Popular commentary has it that the court, on which I serve, is a fortress or bastion or citadel of conservatism," Wilkinson stated. "Discussion of coming changes suggests more the fruits of a successful military campaign than the result of an election giving our new president the right to nominate members to a judicial body."

    Ifill replies