Building a Diverse Bench

August 7, 2017

While the federal judiciary overall has become more diverse, magistrate and bankruptcy courts continue to lag behind. Federal judges appoint and re-appoint magistrate and bankruptcy judges, so the judiciary itself can address this problem. This manual focuses on simple changes that can strengthen the applicant pool and the candidates selected for judgeships. Recognizing the already-heavy workload of federal courts, it outlines a set of best practices recommended by an advisory committee of federal circuit court, district court, magistrate, and bankruptcy judges, as well as circuit executives, clerks of court, and other court experts. Hon. Frank J. Bailey, a judge for the U.S. Bankruptcy Court for the District of Massachusetts, wrote the foreword. 

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INTRODUCTION

The majority of Americans who encounter federal courts do so before a magistrate or bankruptcy judge. With authority under Article I of the U.S. Constitution, magistrate and bankruptcy judges adjudicate an extensive range of issues. Bankruptcy judges, who sit for renewable 14-year terms, adjudicate nearly all bankruptcy cases and proceedings in the first instance. Magistrate judges, who sit for renewable 8-year terms, handle a wide range of criminal and civil matters — from setting bail, to conducting settlement conferences, to hearing motions –– and can even decide federal civil cases with the consent of the litigants. The breadth of magistrate and bankruptcy judges’ responsibilities corresponds with caseloads and appointments that outnumber their Article III peers. In aggregate, there are 925 active magistrate and bankruptcy judges, compared with 795 active district and circuit court judges.

Diversity is an essential element of a successful judiciary. Judges’ personal and professional experiences affect how they approach the cases that come before them. Bringing diverse perspectives to bear fosters decision-making that reflects the experiences of the whole population, resulting in better jurisprudence. A diverse bench also promotes public confidence that the judicial system is fair and objective. When the judiciary includes all voices and perspectives, members of the public are more likely to trust that theirs will be heard as well. Diversity on the bench has the added benefit of establishing role models for all groups by showing that individuals from diverse backgrounds can obtain judicial positions, as well as positions of prominence in the bar. It is for these reasons that the federal judiciary has made diversity a priority and the American Bar Association (“ABA”) passed Resolution 102 calling upon circuit and district courts to build diversity on the magistrate and bankruptcy benches.

While the federal judiciary overall has become more diverse, magistrate and bankruptcy courts continue to lag behind. Women comprise over half of the U.S. population, but only a third of magistrate and bankruptcy judges. People of color comprise almost 40 percent of the population but only 15 percent of magistrate judges and 7 percent of bankruptcy judges. While the statistics for gender diversity in the magistrate and bankruptcy courts are comparable to Article III courts, they trail Article III courts in racial diversity, where nearly a quarter of judges are people of color. Given that many Article III judges begin their judicial careers as an Article I judge, addressing diversity on the Article I bench may also help the trend to diversify the Article III bench.

Inadequate diversity among magistrate and bankruptcy judges is a problem the judiciary can address. While the President, with the advice and consent of the Senate, appoints judges to many Article I courts — such as the Court of Federal Claims, the United States Tax Court, and the Court of Veterans Appeals — Article III judges are responsible for the appointment and re-appointment of magistrate and bankruptcy judges. Magistrate judges are selected by a majority vote of the district court judges in the jurisdiction in which they sit from a list of candidates recommended by a merit selection panel –– a group of lawyers and other community members selected to vet candidates. Bankruptcy judges are appointed by a majority vote of the circuit court judges in the jurisdiction in which they sit upon the recommendation of the judicial council — a group of court of appeals and district court judges, chaired by the chief judge of the circuit. While reliance on a merit selection panel is optional for the selection of bankruptcy judges, in practice all circuits use one to vet and recommend candidates, and often even use additional methods of screening.

This resource provides concrete guidance on the steps courts can take to increase diversity among magistrate and bankruptcy judges. Although there are rules regulating the process, district and circuit courts have wide discretion in their procedures. By actively recruiting candidates from across the legal profession and taking steps to ensure the fair evaluation of all candidates, Article III courts can help build an even stronger judiciary.

The best practices listed below reflect lessons, recommendations, and research provided by judges, court executives, advocates, and scholars. In particular, they reflect the advice of an advisory committee composed of federal circuit court, district court, magistrate, and bankruptcy judges, circuit executives, clerks of court, and court experts assembled to share their expertise and vet the recommendations contained herein. In recognition of the already heavy workload of federal courts, this manual focuses on simple changes that can have an outsized impact on the strength of both the applicant pool and the candidates selected.

 

Building a Diverse Bench by The Brennan Center for Justice on Scribd