Blog
Diversity on the Bench
By Maria da Silva – 02/28/11
Here is the Brennan Center’s weekly round up of Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary. It is a summary of the Brennan Center's Fair Courts E-lert, which goes out weekly and is available on our website.
Recusal
- “Justices should not be forced to live cloistered lives devoid of meaningful exchanges with individuals and outside groups — even those with strongly held beliefs,” argues a Washington Post editorial. “But they should be careful not to put themselves in situations where their impartiality is cast in doubt.” The editorial says that criticisms of Justices Clarence Thomas and Antonin Scalia for participating in the Citizens United case, despite connections to groups interested in its outcome, should not be blown out of proportion. Referring to complaints about Justices Thomas and Scalia that the liberal group Common Cause lodged with the U.S. Department of Justice, Michael Waldman, executive director of the Brennan Center for Justice, cautions in the National Journal that “people should think very hard before asking prosecutors to investigate judges just because they dislike the decisions they make.” Amid the arguments about Justices’ ethical obligations, there have been various calls for efforts to protect public trust in the Supreme Court. More than 100 law professors signed a letter seeking action by Congress to establish clear “mandatory” ethics and recusal guidelines for Supreme Court justices, and bills on recusal at the federal level have been introduced in both the Senate and the House.
- An overwhelming majority of North Carolina voters believe campaign contributions to judicial candidates can affect a case’s outcome in the courtroom, and that judges should not hear the cases of major campaign contributors. A new poll found that 94 percent of North Carolina voters believe campaign contributions have some influence on a judge’s decision in a case involving a donor, and 85 percent believe judges should step aside from hearing cases that involve major campaign contributors. A joint press release by the organizations that sponsored the poll, the Justice at Stake Campaign and the North Carolina Center for Voter Education, says that these findings explain why public support for North Carolina’s judicial public financing remains high, since “voters want to preserve a program that keeps campaign cash out of the courtroom.”
State Judicial Selection
- The Kansas House passed a bill to replace the state’s merit selection system for appellate judges with a system in which judges are appointed by the governor, subject to state Senate confirmation. The bill’s sponsors argue that the current system — in which a judicial nominating commission sends candidates to the governor — gives too much influence to attorneys. Chief Judge Richard Greene of the Kansas Court of Appeals advocated vocally against the change, and an editorial in the Wichita Eagle similarly worries that the switch will politicize the court. Meanwhile, the Tulsa World reports that a similar proposal to do away with Oklahoma’s merit selection system has advanced in the Oklahoma Senate Judiciary Committee. And, in response to proposals to modify Arizona’s judicial selection system currently before the state legislature, the Morrison Institute for Public Policy at Arizona State University has published a paper highlighting the benefits of merit selection.
- In Texas, Chief Justice Wallace Jefferson is also calling for judicial selection reform, in his case with questions about Texas’s partisan judicial elections. Concluding that “[a] justice system based on some notion of Democratic or Republican judging is a system that cannot be trusted,” Chief Justice Jefferson used his state of the judiciary address to urge the legislature to “send the people a constitutional amendment that would allow judges to be selected on their merit” and to extend terms for judges to “avoid some of the overhaul that occurs each election cycle.”
- Iowa Governor Terry Branstad named three new justices — Iowa Court of Appeals judge Edward Mansfield, district court judge Bruce Zager, and lawyer Thomas Waterman — to the state Supreme Court to replace three justices ousted last November. The ouster marked the first time voters opted against retaining a Supreme Court justice since the state’s merit selection system was adopted in 1962. Meanwhile, another article discusses the lack of gender diversity on the state’s high court after the removal of former Chief Justice Marsha Ternus. Currently, Iowa, Indiana, and Idaho are the only states without a female Supreme Court justice.
- A Wisconsin State Journal editorial discusses the possibility that public judicial campaign financing could increase the relative influence of special interest spending in the state’s upcoming judicial election. Citing data collected by the Brennan Center for Justice, the editorial points out that, during the primary campaign, the money spent on TV advertising by the interest group Wisconsin Club for Growth dwarfed the amount spent on TV by all candidates combined. The Brennan Center for Justice will continue to track spending leading up to the general election, in which incumbent Justice David Prosser will face challenger JoAnne Kloppenburg.
- In the Keystone State, the nonprofit Pennsylvanians for Modern Courts cites the conviction of former Luzerne County Judge Mark A. Ciavarella Jr.— and information brought to light during trial that Ciavarella skimmed from his election campaign funds — as evidence that Pennsylvania should adopt a merit selection system in order to getting judges “out of the fundraising business.” Ciaverella’s conviction concludes the “kids for cash” scandal that rocked the state judiciary. Ciavarella was convicted on 12 counts, including racketeering and conspiracy, and acquitted of 27 counts, including extortion. The state Supreme Court previously vacated thousands of juvenile convictions issued by Ciavarella, stating that he ran his courtroom with “complete disregard for the constitutional rights of the juveniles.”
Court Resources
- An Administrative Office of the U.S. Courts memo obtained by the Blog of Legal Times indicates that the federal judiciary is proactively addressing the possible federal government shutdown in the event of a congressional budget impasse. The memo said guidance on operating during such a shutdown would be forthcoming, and urged all chief judges nationally to enact budget conscious measures such as hiring freezes.
- An editorial in the Pensacola News Journal notes that a decrease in foreclosure cases has negatively affected Florida’s court funding reserves. Foreclosure cases constitute a primary source of revenue for Florida’s courts under a revised funding formula, which means that the drop-off in foreclosures will result in a $45 million shortfall in court funding. Acknowledging that “[t]he courts are crucial to the functioning of civil society,” the editorial urges the legislature to take action to forestall a funding crisis. Meanwhile, the Florida Supreme Court has asked the legislature to approve 80 more trial judges to help alleviate increased judges’ workloads.
Miscellaneous
- The New Jersey Senate passed a resolution urging Supreme Court Justice Roberto Rivera-Soto to resign. After Gov. Chris Christie decided not to reappoint an incumbent justice last year, chief appellate judge Edwin Stern was appointed as a temporary justice. Subsequently, Rivera-Soto vowed to abstain from any further decisions in which Stern participated, on the grounds that Stern’s appointment was unconstitutional. In January, Rivera-Soto modified his position, announcing he would participate in cases in which Justice Stern’s vote does not affect the outcome. Assembly Democratic spokesman Tom Hester Jr. said he hopes Rivera-Soto will resign, but there are no present plans to initiate impeachment proceedings.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, State Judicial Elections
By Maria da Silva – 02/18/11
Here is the Brennan Center’s weekly round up of Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary. It is a summary of the Brennan Center's Fair Courts E-lert, which goes out weekly and is available on our website.
Feature Story
- “Nothing could be more important for the judiciary than to have the public see that we’re neutral arbiters of disputes. If we don’t have that, we don’t have anything.” So said New York's Chief Judge, Jonathan Lippmann, explaining the need for a proposed new judicial disqualification rule. Chief Judge Lippmann announced the new rule — which will prohibit elected judges from hearing cases involving parties or lawyers who gave $2,500 or more to their campaigns in the prior two years — in his state of the judiciary address on Tuesday. The rule also ensures that neutral decision-makers — in this case, court administrators — rather than the individual judge, make the recusal decision. Concerns have been raised about the rule’s silence on independent campaign expenditures and the possibility that it would open the door to gamesmanship and judge-shopping.
State Judicial Selection
- Incumbent Justice David Prosser and challenger JoAnne Kloppenburg advanced in Tuesday’s primary election for a seat on the Wisconsin Supreme Court, and will compete in the general election on April 5. Both candidates accepted public financing, but special interest spending may dominate in the general election, given the court’s current 4-3 ideological breakdown and recent trends in outside group spending in judicial elections. In the primary contest, the conservative Wisconsin Club for Growth spent more on TV advertising than all four candidates combined — 70 percent of all TV spending, according to the Brennan Center.
- The Oklahoma Supreme Court rejected a challenge to the state’s judicial nominating commission this week. The commission’s membership is selected from six regions based on Oklahoma’s previous six congressional districts, but since 2002, the state has had only five congressional districts. The nominating commission came under scrutiny when outgoing Governor Brad Henry chose to appoint District Judge Noma Gurich to the state Supreme Court. Gurich — who stated she would not take her seat until the constitutional challenge was resolved — has not yet been sworn in, but the Supreme Court upheld her appointment, ruling “that the commission’s decisions are valid when decided by a majority of its members” regardless of any changes to the state’s congressional allocation.
- Several states are debating whether mandatory disclosure of judicial candidates’ party affiliations promotes transparency or injects politics into the judiciary. A bill recently introduced in the North Carolina legislature would restore party labels starting in 2012 for candidates for District Court, Superior Court, Appellate Court, and the state Supreme Court. Former North Carolina Supreme Court Justice Bob Orr said an appointment-retention system would be a better way to insulate judges from politics. Similarly, a proposed referendum for the 2012 ballot in Montana would require candidates for district court judgeships and the state Supreme Court to run with partisan labels. Currently, judicial elections in both states are nonpartisan, but supporters of the Montana proposal argue that party labels guarantee voters are aware of judges’ “individual biases.” Meanwhile, a bill in Missouri — which is nationally recognized for the appointment-retention system under which most of its judges are chosen — would institute nonpartisan elections for any judgeships not covered by the merit selection system.
- Judicial candidates in Alabama raised more money in 2010 than counterparts in any other state, prompting several editorials to criticize the state’s judicial elections. The Anniston Star compares Alabama’s Supreme Court races to a “figurative walk down the Las Vegas strip: All lights, all flash — and all about money,” while the Mobile Press-Register worries high levels of campaign fundraising and special interest spending create an impression that justice is for sale.
Diversity on the Bench
- State Supreme Courts continue to make strides toward greater diversity. In Hawaii, the senate confirmed Judge Sabrina McKenna to the bench on Wednesday, making her the state’s first openly gay high court justice. Meanwhile, on the same day, Justice Cynthia Kinser was sworn in as the first female chief justice of the Virginia Supreme Court.
The Federal Judiciary
- Both the House and Senate introduced legislation to establish an independent office charged with investigating judicial ethics violations. Both versions of the bill limit the inspector general’s mandate to investigate judicial ethics violations — rather than reviewing or investigating the merits of specific legal decisions — to insure the new office does not undermine the independence of the judiciary. The Senate version would grant the inspector general power over the Supreme Court — the House version would not. Meanwhile, Rep. Christopher Murray, (D-CT), plans to introduce legislation to require Supreme Court justices to disclose their reasons for recusing themselves from hearing a case. The bill will also require the high court to formalize a procedure through which parties can “request the court to decide whether a particular justice has a conflict of interest.”
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, Judicial Advertising, State Judicial Elections
By Maria da Silva – 02/04/11
Here is the Brennan Center’s weekly round up of Fair Courts news, where we summarize stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.
Diversity on the Bench
- Several state Supreme Courts have made strides in terms of judicial diversity, according to the American Judicature Society: in 2011, New Hampshire, Ohio, and Virginia have female Chief Justices for the first time, and three other states—California, Massachusetts, and Nevada—have minority Chief Justices for the first time.
- President Obama nominated former Clinton administration lawyer J. Paul Oetken for a judgeship in Manhattan. If confirmed, Oetken would become the first openly gay judge on the federal bench. In recommending Oetken for nomination, Senator Charles Schumer stated he was “shocked to learn there were no openly gay male judges on the entire federal bench.”
Federal Judicial Selection
- White House Counsel Robert Bauer stated this week that the White House will push Congress to confirm more judges. There are 101 vacancies on the district and circuit courts. On Thursday the Senate Judiciary Committee sent 11 holdover nominees from the last Congress to the floor as a test of the informal bipartisan agreement to facilitate quicker confirmation of nominees.
State Judicial Selection
- In response to Republican state Sen. Mike Bell’s proposal to replace the current merit selection system for Tennessee’s high court judges with contested elections, Tennessee Supreme Court Justice Gary Wade said, “A great judge is like a referee in a football game. To have one side or the other cheering for the referee is a little bit unseemly to me.” While Bell criticizes his opponents for “trying to protect the system that they control right now,” an editorial in the Tennessean contends that the current merit selection system works well and “instills trust” in the judiciary.
- Former Michigan Supreme Court Justice Elizabeth Weaver continues to push for reform, saying that Michigan “need[s] transparency. Not a secret club of seven justices from the Detroit-Lansing beltway joining together to promote agendas of partisan or special interests.” Among other reforms, Weaver has proposed electing justices by district to generate geographic diversity and instituting public financing for judicial campaigns.
Judicial Ethics
- A decision regarding Justice Michael J. Gableman’s dishonesty in a 2008 campaign ad sparked debate at a recent forum between Wisconsin Supreme Court candidates. Three candidates identified the court’s deadlocked decision as the one they most disagreed with, while incumbent Justice David Prosser defended his position that Gableman’s ad was protected by the First Amendment. This case is also responsible for substantial tensions between the sitting justices. Meanwhile, a Wisconsin State Journal editorial argues the state should switch to a merit selection system to improve public confidence in the high court.
- Kentucky’s Judicial Conduct Commission charged Circuit Judge Daniel Ballou with two counts of ethics violations for donating to Sen. John McCain’s presidential campaign in 2008 and for sending an e-mail in 2010 about Rand Paul’s position on the 2nd Amendment. Although he denied the allegations of impropriety, the Commission ruled that Ballou’s actions run afoul of the state’s judicial ethical rules.
- The Nevada Supreme Court affirmed a 2008 decision to remove Clark County District Judge Elizabeth Halverson from the bench. Judge Halverson will be permanently barred from the bench now that the Supreme Court has upheld the Commission’s finding that she behaved improperly during hearings, with jurors, and with court personnel.
Miscellaneous
- Last week’s e-lert noted that amid concerns over budget restrictions, numerous state Supreme Court Chief Justices have used their state of the judiciary addresses to tout new technologies as a way to increase court efficiency. Accordingly, legislators across the country are advancing bills related to electronic court filings. An article on the Court Technology blog discusses bills pending in Arizona, Oregon, South Dakota, Virginia and Wyoming.
Previous editions of the Brennan Center Fair Courts E-lert are available on our website.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, Judicial Advertising, State Judicial Elections
By Maria da Silva – 01/28/11
The Brennan Center Fair Courts E-lert summarizes news stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.
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Fair Courts E-lert
January 28, 2010
State Judicial Selection
1. The Iowa judicial nominating commission’s interviews of state Supreme Court candidates this week were open to the public for the first time ever. One candidate, Sixth District Chief Justice Patrick Grady, expressed support for the commission’s move, stating that, especially in light of November’s ouster campaign, judges “can’t afford to be a mystery any more . . . [because] when people don’t know how you operate, they get suspicious. And we all know what can happen then.” After deliberation, the commission forwarded nine finalists to Governor Terry Branstad, including five judges, three lawyers and a law professor. Branstad told The Des Moines Register that while he will inquire about candidates’ general philosophies, he will not ask for their views about particular cases, such as the unanimous decision legalizing same-sex marriage that spurred voters to oust three justices in November’s retention election.
Mike Wiser, Panel Interviews 7 For Iowa Supreme Court, The Quad-City Times, January 24, 2011; Grant Schulte, Public Selection Of Justices Begins; Process Continues Today, The Des Moines Register, January 25, 2011; Grant Schulte, Branstad: No Judicial Litmus Test, The Des Moines Register, January 23, 2011; Grant Schulte and Jens Manuel Krogstad, 5 judges, 3 lawyers among 9 Iowa Supreme Court finalists, January 28, 2011.
2. “Within our system, judges are not supposed to represent specific constituencies. They are supposed to answer to the law and to the Constitution. They are not supposed to take into consideration any political concerns.” Discussing the dangers of special interest influence in judicial elections in a USA Todayarticle, Brennan Center for Justice counsel Adam Skaggs noted that state legislatures, voters, and court scholars across the country have been debating methods of judicial selection, and in particular, how to preserve judicial independence in light of increased special interest influence in judicial elections. Jim Bopp, an attorney for the James Madison Center for Free Speech, argued that judicial elections are the best way for voters to hold “activist judges” accountable.
Clint Brewer and Grant Schulte, Influence of special interests felt in court, USA TODAY, January 27, 2011.
3. Noting that the Pennsylvania Bar Association will hold public hearings to examine judicial selection and the financing of judicial campaigns, an article in the Pittsburgh Tribune Review suggests that the state legislature may soon consider moving from contested judicial elections to a merit selection system. Pennsylvania Superior, Commonwealth and Supreme courts judges are currently chosen in contested elections, and while switching to appointed judges would require a constitutional amendment, according to Shira Goodman, deputy director for Pennsylvanians for Modern Courts, “the mood in Pennsylvania and the focus on the judiciary show the public is very concerned.”
Bobby Kerlik, Supporters Of Appointed Appellate Judges Like State's Mood Swing, Pittsburgh Tribune-Review, January 24, 2011.
Federal Judicial Selection
4. Roslyn O. Silver, the federal district judge who succeeded Judge Roll upon his death, has declared a judicial emergency in Arizona. According to the Arizona Republic, federal felony caseloads have soared to a record high in the state, even as judicial appointments have slowed due to partisan politics in Washington. Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals told the Wall Street Journalhe hoped Congress would take action in response to the emergency declaration and Senator Charles Schumer informed Politico that he isworking with Judiciary Committee Chairman Patrick Leahy and Senator Lamar Alexander to foster “a really strong and bipartisan effort to get many more judges approved.”
Michael Kiefer, Judge John Roll's Death Prompts Judicial Emergency, The Arizona Republic, January 26, 2011; John R. Emshwiller And Alexandra Berzon, Decree In Arizona Eases Trial Limit, The Wall Street Journal, January 26, 2011; Mike Allen, Chuck Schumer Warns Of 'Crisis' In Judiciary, Politico, January 23, 2011.
Diversity on the Bench
5. “I would like to believe that because of my background and my life experiences, I bring sensitivity to those who may not have been born into a life of privilege, a sensitivity to those whose life circumstances make it difficult for them to conform with all of society's expectations.” Speaking about her nontraditional upbringing and her position—if confirmed—as the first openly gay member of the Hawaii Supreme Court, state judge Sabrina Shizue McKenna also stated that she hopes her presence on the court will give “hope to people who feel that they cannot succeed” because they do not fall within traditional demographics. According to the Honolulu Star-Advertiser, Governor Neil Abercrombie called McKenna’s appointment earlier this week—his first judicial appointment since taking office— “the most important decision” in his career.
Ken Kobayashi, McKenna is named to state's high court, Honolulu Star-Advertiser, Jan 26, 2011.
Miscellaneous
6. Compared to the tension between the executive and judicial branches on display at the 2010 state of the union, this year’s address was relatively uneventful. Leading up to the address, however, numerous outlets speculated about possible new conflicts in light of Justice Scalia’s speaking engagement at the House Tea Party Caucus and Justice Thomas’ revision of his financial disclosure filings to reflect income his wife received from the Heritage Foundation. An NPRreport concluded that “on Monday night there appeared to be more fizzle than sizzle to the charge of unseemly partisanship” by Justice Alito. Concern remains, however, that interactions between the judicial, executive, and legislative branches have become more politicized. An article in USA Todayexamined the issue and concluded that increased politicization “could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary.”
Nina Totenbergm, Justice Scalia Speaks To Tea Party Caucus, Democrats, NPR, January 25, 2011; Thomas adds wife's employment to disclosure report, The Associated Press, January 24, 2011; Joan Biskupic,Tensions rise between Supreme Court, politicians, USA TODAY, January 23, 2011.
7. “There is no moratorium on crime, drug addiction, alcoholism, domestic abuse, or the need for access to justice. If anything, our current economic woes have increased these problems.” So stated South Dakota Supreme Court Chief Justice David Gilbertson in his annual address to the state legislature. Chief Justices across the county similarly offered mixed messages of efficiency and progress amidst budgetary pressures in recent State of the Judiciary addresses, which are available online through The National Center for State Courts.
Chief Justice David Gilbertson, State of The Judiciary,January 12, 2011; Chet Brokaw, South Dakota chief justice cautions against further cuts in court system budget, Associated Press, January 12, 2011.
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Previous editions of the Brennan Center Fair Courts E-lert are available on the Brennan Center website here. If you have comments regarding the E-lert, any articles you'd like to see included, or know of anyone who would like to receive this service, contact Maria da Silva.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, Judicial Advertising, State Judicial Elections
By Ciara Torres-Spelliscy – 07/01/10
Somewhere between Yalie Sam Alito’s confirmation in 2006 and Harvard Dean and Solicitor General Elena Kagan’s nomination in 2010, an Ivy League degree went from a credential to a liability. Now with Kagan set to be confirmed, there has been an the odd objection that too many Ivy Leaguers will be on the high court.
We need highly qualified women and minorities on U.S. courts. On federal or state courts, the problem is the same: courts look much more like they did a century ago—very white and overwhelming male. In fact, 27 state supreme courts are all white and two are all male. In 17 state supreme courts, a lone woman serves. Meanwhile in the federal system, the Eighth Circuit Court of Appeals is one woman away from all male. If Elena Kagan is confirmed, she will be the third woman on the U.S. Supreme Court-- the most women who have ever served at one time.
Last year, I co-authored Improving Judicial Diversity, a Brennan Center report about diversity and state courts around the country. The report highlighted the continuing absence of women and minorities on state courts and suggested ways to help remedy matters and make sure that our state courts looked more like our country. My conclusions were specific to states: state judicial nominating commissions should address the problems of implicit bias, beef up recruitment efforts by extending outreach to women and minority lawyers, advertising openings widely, and, making the process more transparent. But many of the report’s findings would help improve judicial diversity on the federal level which, though traditionally more diverse than state courts, don’t reflect the nation’s increasingly diverse population. Indeed, of the over one million practicing attorneys, one third are women and one tenth are minorities.
The fact that there are many qualified diverse potential judges is in part due to the increasing numbers of those students graduating from top law schools. This wasn’t always the case. For most of the nation’s history, our top schools excluded women and minorities and so helped create a barrier to participation by and the advancement of minorities and women in the legal profession. The lack of diversity on the bench also worked to rob the profession -- and the nation -- of contributions from a huge percent of our citizens.
My alma mater, Harvard has had a long history of sending talent to the nation’s courts. William Cushing who was a Harvard College graduate, was appointed by President George Washington to the first Supreme Court. More than twenty Harvard men were tapped by subsequent presidents to serve on the Court.
Naturally the University wasn’t a source of diverse would-be Supreme Court Justices until it diversified its own population. Founded nearly 375 years ago, for its first two centuries, Harvard only had a token or no black presence. The first black graduate was George Ruffin at Harvard Law School in 1869; W.E.B. Du Bois was the first black man to snag a Ph.D. in 1895. Dr. Du Bois wryly stated he was “in but not of Harvard”. It took nearly a century from Ruffin’s breakthrough, along with a Civil Rights Movement and a change in philosophy in admissions before a significant minority student population showed up in Cambridge.
Women travelled a parallel route to Harvard Yard. Harvard’s sister school Radcliffe opened in 1879; it was not until 1999 that Harvard and Radcliffe fully merged. At the Law School, the first woman didn’t graduate until 1953, a full 84 years after Harvard Law bestowed its first J.D. on a black male student. Title IX of the Education Amendments of 1972 – which requires equal educational opportunities for women at colleges and universities receiving federal funding –played an important role in changing Harvard’s exclusionary practices.
Religious tolerance was a long time coming at Harvard too and was slowed by the fact that restrictions on Jewish admissions came from the top. Recall that Harvard President Lowell infamously implemented a 15% cap on Jewish students in the 1920s because “too many” were getting in under a meritocratic admission system.
Eventually, Harvard and many of its peer institutions, turned a page and began actively recruiting talented minorities and women, regardless of religion, for both undergraduate and graduate programs. When the Brennan Center studied the law school diversity during the past 20 years, we found Harvard, Stanford and its Ivy League peers were doing better than many state law schools at matriculating and graduating minorities and women.
The fruits of this and similar efforts to open up the Ivies are evident in leadership positions all over America, including 1600 Pennsylvania, both of whose residents have multiple Ivy League degrees. This change in recruitment at the Ivies, now decades old, manifests itself in more diverse candidates for appointive federal offices, including the Supreme Court. Finally the credentials from men and women, white and non-white, are more indistinguishable.
As a nation, we should harness the talent pumping out of these schools, and we shouldn’t miss out on half the talent pool by failing to consider women as equally serious contenders to the bench. Justice Sandra Day O’Connor noted last year, “[a]bout half of all law graduates today are women, and we have a tremendous number of qualified women in the country who are serving as lawyers and they ought to be represented on the Court.” Elena Kagan has degrees from Princeton, Oxford and Harvard, clerked for a Supreme Court Justice and worked at the White House. She certainly seems to fit the bill Justice O’Connor had in mind when she spoke of “qualified” women.
The Ivy League doesn’t have a lock on talent, either legal or otherwise. As Christopher Edley wrote recently in the Washington Post, if there is any place in which elitism is appropriate, it’s the Supreme Court. And sheepskin from the Ivies shouldn’t have a different import when the bearer is female. If John Roberts is “supremely qualified” because of his Harvard degree, then so too is Elena Kagan.
Tags: Democracy, Fair Courts, Diversity on the Bench
By Susan M. Liss – 05/08/10
In justice-picking, as with health care, financial regulation, or energy policy reforms, real-politik requires a fine balance. My fellow progressive advocates who are urging President Obama to select a certified liberal – one who can do battle with the right wing of the Court -- to fill the seat of retiring Supreme Court Justice John Paul Stevens are using the wrong test. The President should be using a “persuasion index” in making his pick.
Reports today indicate that the announcement of the next nominee could come as early as Monday morning, or even as a leak on Sunday night. Those same reports suggest that Solicitor General Elena Kagan is the choice from the rumored “short list” that also includes U.S. Appeals Court Judges Merrick Garland, Sidney Thomas, and Diane Wood, some of whom were former colleagues and acquaintances.
At least until the nomination is official, some in the progressive base are not happy with these choices. They want the President to pick a certified liberal, ready for hand-to-hand combat with the current conservative majority. In this way, their argument goes, the President can demonstrate his commitment to liberal values and progressive jurisprudence.
But this is the wrong test. The best way to show the commitments progressives demand is for the President to select someone who scores high on a “persuasion index.” And the key factor in that index should be whether the potential nominee has the smarts, skills, and talents to consistently win over Justice Kennedy and at least one of the other justices. Those skills will limit the damage from this conservative Court’s cramped right wing interpretations of the Constitution and statutes – interpretations that resulted in opinions in cases like Ledbetter and Citizens United.
Supreme Court history shows that commitment to an ideological agenda is more likely to result in strong dissents than in majority opinions. Justice Scalia’s record teaches that lesson. A new Justice who specializes in dissents will not contain the damage of Roberts Court. But a new Justice who can win over a few votes in key cases offers the best hope for the Court to return to its proper role as the ultimate protector of our rights in the American justice system.
Each of the people on the President’s reported “short list” has demonstrated skills to score high on the “persuasion index.” Progressives should be more than satisfied with any one of these outstanding potential nominees.
Tags: Democracy, Fair Courts, Diversity on the Bench, Justice, Judicial Nominations
By Myrna Pérez – 12/28/09
originally published in El Diario; translation below.
2009 was a big year for Latinos. We’ve had some setbacks, including an economic crisis in which the unemployment rate among Latino workers is almost thirteen percent. We also learned that 41% of our high school girls fail to graduate on time, if at all, and that they have the highest teen pregnancy rate of any racial or ethnic group.
But, we’ve had some enormous accomplishments. Sonia Sotomayor’s nomination and confirmation to be a Supreme Court Justice can and should be a source of pride for all Latinos. Latinos are also at the helm of the Civil Rights Division of the Department of Justice and Department of Labor.
We’ve also emerged victorious in the face of threats to our equal and fair participation in the life of the country. The Supreme Court rebuffed a carefully-orchestrated attack on arguably the country’s most successful piece of civil rights legislation, the Voting Rights Act. The Act prohibits states and local governments from enacting voting practices that discriminate based on race, and has been instrumental in breaking down voting barriers and bringing fair political representation to Latinos all over the country.
Those victories are important because large challenges loom ahead for us in 2010, especially in the area of immigration reform, and the anti-Latino bias that will accompany that issue. The 2010 elections will provide us with the opportunity to voice our concerns on important issues, but we must be politically involved. Two national reforms would help us translate our numbers into political influence, Voter Registration Modernization and the Democracy Restoration Act.
Voter Registration Modernization is an automated system of registering eligible consenting citizens from existing government lists, it could enfranchise the up to 65 million eligible Americans, including many Latinos, who are not currently registered to vote.
The Democracy Restoration Act allows American citizens returning to their communities from prison to vote in federal elections, encouraging these persons to become invested and involved in the well-being of their communities. While it is hard to say how many of the four million people living and working in the community who cannot vote because of a past criminal conviction are Latinos, we can expect those numbers to be sizeable, given that Latinos comprise up to 20% of the incarcerated population. These two reforms will allow us to be well-armed against the predicted and repeated barrage of misinformation and hate.
So with our setbacks making us more resilient and committed, our accomplishments making us louder and prouder, our victories making us stronger, let’s use our potential to make great gains for our communities and country in 2010.
Tags: Democracy, Fair Courts, Diversity on the Bench, Voting After Criminal Conviction, Voting Rights & Elections, Racial Justice
By Ciara Torres-Spelliscy – 10/28/09
American legal talent comes in all shapes and sizes, which is why we should worry about a homogeneous federal bench. After the nomination process of Sonia Sotomayor, the press focused largely on the gender and racial diversity that she brought to the bench. This focus was understandable given that Justice Sotomayor is just the third woman, and the third person of color on the Supreme Court since its inception in 1789.
Recently, Justice Thomas said: "the Court is too dominated by Ivy League lawyers and lacks regional diversity. People constantly worry about racial, gender and ethnic diversity," he furthered, "home states matter, too."
Justice Thomas has a point about judicial diversity. The metrics of diversity can include more than just race or gender. Diversity of geography, legal training and legal practice can all contribute to a more complete bench. As Russ Wheeler at Brookings has noted, over time the federal judiciary has become more homogenous in terms of professional backgrounds. Wheeler's research shows roughly half of federal judges appointed by President George W. Bush were former judges as compared to one fifth under President Eisenhower. And as Professor Sylvia Lazos has shown, most of the racial diversity on the federal bench is due to our last two presidents (Bush and Clinton).
With 96 federal judgeships vacant, President Obama has a golden opportunity to continue to diversify the bench in many dimensions. As Professor David Fontana has suggested, President Obama could grow the ranks of future legal leaders by appointing younger judges to the federal bench. As Justice Thomas suggests, good judges can come from all over the country. But race and gender do still matter. So Obama should draw from more than the pool of sitting judges since the feeder courts at the state level often lack diversity. As the Brennan Center has pointed out, judicial diversity is in need of improvement, since 24 state supreme courts are all white and two are all male.
So far, the Senate has confirmed just three of Obama's lower court nominees. Filling the vacancies on the federal bench will require more than action from the President. Cooperation is also needed from Senators, who are continuing in a long history of obstructionist delay tactics where the judiciary is treated as a political football instead of a co-equal branch of government. A diverse, representative, and fully staffed judiciary should be a shared goal of all Americans, no matter where they fall on the political spectrum.
Tags: Democracy, Fair Courts, Diversity on the Bench
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