Black Female Representation in the Law: Much Progress, But the Fight Continues

September 13, 2017
Guest Post

by Congresswoman Yvette D. Clarke. Congresswoman Clarke represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.

September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.

The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.

While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.

Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.

More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.

Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent (7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court.

Some people may wonder why the demographic composition of the judiciary matters, given the fact that judges are supposed to apply the law equally. This is indeed a fair question. After all, it would lead to absurd results if we required a judge’s racial, gender, or ethnic characteristics to match those of every party before the courts. However, that is not what I am advocating. While the same law applies to all people, the truth is that we need judges who know how to properly weigh the facts that are before them in order to create key legal concepts and distinctions that all judges can then use to fairly apply the law.

As ACS President Caroline Fredrickson demonstrates in her book “Under the Bus: How Working Women Are Being Run Over,” Congress, the courts, and other government officials have routinely excluded women of color from legal protections, even as they crafted more progressive laws for the rest of the country. Women of color face unique intersectional challenges with regard to reproductive rights, healthcare disparities, sexual harassment, and numerous other issues. While many of these issues are best addressed by Congress, the fact is that Black women need a seat at the bench to argue for how to weigh the facts, apply the law, and create legal distinctions that equal justice under law. By increasing Black female representation in the judiciary, we can help guarantee that our law encapsulates the nuances of our lived reality. It is therefore imperative that increasing Black female representation on the judiciary remains a priority for the progressive legal movement going forward, which is why I am so proud that ACS has named an award after Judge Motley as an enduring legacy to her accomplishments and vision.