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Diversity on the Bench
By Ciara Torres-Spelliscy – 06/23/09
Arguing for judges with exposure to America’s diverse mores, NAACP LDF’s John Payton reminded an audience of lawyers, professors and students at NYU School of Law of the historical and racial context of the current Supreme Court pick.
John Payton, President and Director-Counsel of the NAACP Legal Defense Fund appeared at a panel discussion hosted by the Brennan Center entitled, "Umpire? Empathy? What Do We Want in a Supreme Court Justice?” on Monday, June 15, 2009 along with Burt Neuborne, Stanley Fish, and Dahlia Lithwick.
Eschewing an endorsement of “empathy” per se as criteria for good judging, Payton urged that what a good judge does is try to imagine what it would be like to be in someone else’s shoes in order to come to a just decision. As an example of the dangers of thinking of the law as neutral, Payton quoted from Professor Herbert Wechsler’s famous Holmes Lecture at Harvard Law School. Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959):
In the days when I was joined with [African American Attorney] Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed [in 1935], he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess [since blacks were not allowed in the Capitol dining room].
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Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, Racial Justice
By Laura MacCleery – 06/23/09
One
issue that may be lost in the coming weeks as the hearings to confirm
Judge Sonia Sotomayor is the significance of this progress in fulfilling
a promise to the American people that the courts will indeed look like
America.
As
we found in a recent investigation, that is far from the case in courts
across the country. A
report we released in December 2008
highlighted the importance of judicial diversity among state Supreme
Courts by examining practices regarding minority recruitment on the
part of selection commissions in 10 states. We found the composition
of both courts and selection pools for jurists dramatically lagged both
the general population and the population of law school graduates in
terms of diversity of both race and gender.
We
also took a close look at the importance of diversity on the bench,
and the problem of "implicit bias" in hiring. Recent studies on
the issue of implicit bias are revealing: it turns out that many
of the natural psychological categories that we have learned and that
help us sort the world into meaningful information can bring with them
negative biases from childhood that are hard to shake, even years after
we believe we have removed them from our conscious viewpoint on the
world.
For
people of color, and particularly those that live in a white-dominated
professional world, the existence of these unconscious facets of bias,
and of being seen through less-than-sympathetic eyes, is a fact of life.
Although it has often been a struggle for others to recognize this more
subtle form of prejudice, even some Supreme Court Justices have described
it convincingly. Justice Brennan wrote in a 1989 case that "unwitting
or ingrained bias is no less injurious or worthy of eradication that
blatant or calculated discrimination."
During
Samuel Alito's confirmation hearings to be a Supreme Court Justice,
he acknowledged these kinds of experiences of discrimination in an intimate
and candid discussion:
[W]hen a case comes before
me involving, let's say, someone who is an immigrant -- and we get
an awful lot of immigration cases and naturalization cases -- I can't
help but think of my own ancestors, because it wasn't that long ago
when they were in that position...When I get a case about discrimination,
I have to think about people in my own family who suffered discrimination
because of their ethnic background or because of religion or because
of gender. And I do take that into account.
For
judicial selection commissions to combat this implicit bias, we found
that they must be pro-active in their approach to identifying and recruiting
minorities. We also found that the case for diversity on the bench was
strong, and would benefit not only the particular judgments, which would
arise from a more complex tapestry of experiences in society, but also
the public perception and legitimacy of decisions from the judicial
branch. When the range of people who sit in judgment do not reflect
the communities they serve, the clear impression that may be left is
that judges will not be impartial or reflect community-level understandings
and values.
This
is not, of course, to suggest, that mere diversity should allow unqualified
jurists to be advanced for diversity's sake alone. But the results
of our research show clearly that when highly qualified candidates such
as Judge Sotomayor are moved into positions historically monopolized
by non-diverse candidates, the benefits go beyond the particular decisions
made by any jurist. And certainly, the prospect of a Supreme Court that
partakes in the rich traditions that characterize the breadth of American
culture is a welcome one, after centuries in which communities of color
have felt less than well-represented in the halls of power.
Tags: Fair Courts, Diversity on the Bench
By Maggie Barron – 01/29/08
Last
night's State of the Union address, Bush's last, was about legacy-building. But
the President spent only a moment of his hour-long speech on a subject that
could be his most enduring legacy of all, one that will have an impact long
after troops are out of Iraq
and the housing market has recovered — the makeup of the judicial branch.
Many of
his nominees, Bush complained in the speech, are being "unfairly delayed." He
does have some trouble; he nominates divisive candidates, and the Senate
Democrats resist. Last year, for example, Bush dropped
the nomination of three judges when it was apparent that they would never
be confirmed. And of course there were the events of 2004, when the country finally
learned what
the word "filibuster" meant. But these "delays" are relative — a
glance through the records of
Bush's judicial nominations shows that many votes to confirm judges are
unanimous. In a statement last November, Senate Judiciary Committee Chairman
Senator Patrick Leahy reported that the Senate had confirmed more judges in
2007 than in the previous three years, in which Republicans had a majority.
The President
plays a critical role in creating the entire judicial branch, not just the
Supreme Court. Bush has appointed two Supreme Court justices, but he has also successfully confirmed 294
judges to the federal district and circuit courts. By the end of their
terms, Clinton and Reagan had successfully confirmed 377
and 382 federal judges, respectively. By the end of his term, Bush may not
reach the same count, but his choices of hundreds of judges will still have a
lasting impact on the country. These district and circuit court judges serve
lifetime appointments. So it's little wonder that, as
Bob Dole said during his presidential campaign, "the federal judges a
president chooses may be his most profound legacy."
It is a
legacy that we have largely been ignoring when it comes to electing our next
president. From watching the Democratic and Republican debates, for example,
one would think that the only questions facing our courts these days are Roe v. Wade and the Second Amendment. In
the Democratic
debate in Las Vegas last November, a voter asked that candidates "what
qualities" a judicial nominee must possess. Wolf Blitzer spun the question
around, making the candidates give "yes or no" answers to whether or not they
would appoint judges who supported abortion.
It is
essential that the media ask the candidates about their judicial philosophies,
and allow them to answer in full sentences. And it is essential that we the
voters stop to listen, because the matter of judicial candidates provides
important clues about how a candidate might govern. In 2000, Bush was running
on a platform of "compassionate conservatism," but when asked said he would
appoint justices in the mold of Scalia and Thomas. His answer provided a guide,
not just to the kind of judiciary we could expect from a Bush presidency, but
to the tenor of his presidency as a whole.
We are
often reminded that the next president could very well appoint one or two
Supreme Court justices, but no one mentions that, if the next presidency is
anything like previous ones, the person who is elected could have the
opportunity to nominate candidates for perhaps 40% of this country's 857
circuit and district judgeships.
In turn,
these judges have immense influence. While the Supreme Court typically hears
about 100 cases each year, the circuit and district courts hear tens of
thousands of cases across the country. With few cases ultimately reaching the
Supreme Court, judges on appellate courts often have the last word on a slew of
important issues: employment law, the environment, voting rights, national
security policy, civil rights, and yes, possibly reproductive rights and gun
control.
Knowing a
candidate's judicial philosophy might not seem as pressing as knowing his or
her opinions on the war, or the economy, or health care. Yet it's important to
keep in mind that we will be living with the next president's judicial
philosophy for decades. The significance of Bush's impact on the judiciary was
clearly not lost on the four Supreme Court justices who attended the speech. This
may have been Bush's last State of the Union address but, as the justices know,
we will be hearing his voice from the federal bench for years to come.
Tags: Democracy, Fair Courts, Diversity on the Bench, Economic Opportunity, Checks & Balances
By James Sample – 01/22/08
It is not every day that a U.S. Supreme Court justice writes a separate one-paragraph opinion merely for the purpose of pointing out that, as a matter of policy, a state law is "stupid." That is remarkable enough, but when the law in question governs the third branch of government in a state that -- were it a nation -- would be the world's 11th largest economy, such bluntness should not be ignored.
To that end, Rich Samp of the conservative Washington Legal Foundation and I have jointly written this op-ed to for the New York Law Journal.
You can read the entire piece here.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, State Judicial Elections
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