Fair Courts E-lert: Diversity in the Courts

March 6, 2013

Diversity in the Courts Promoted by Obama, Possibly Hindered by ABA
Two articles in the Washington Post focus on diversity in the courts, one discussing President Obama’s judicial nominees, and another questioning the rating system the ABA uses in rating and ranking judges. The first article includes infographics that provide a quick look at the make-up of Obama’s currently pending nominees and states, “The president has named three dozen judicial candidates since January and is expected to nominate scores more over the next few months, aides said. The push marks a significant departure from the sluggish pace of appointments throughout much of his first term, when both Republicans and some Democrats complained that Obama had not tried hard enough to fill vacancies on federal courts. The new wave of nominations is part of an effort by Obama to cement a legacy that long outlives his presidency and makes the court system more closely resemble the changing society it governs, administration officials said.” The second article, featured on the newspaper’s “Wonk Blog,” questions some of the ABA’s ratings of candidates, stating, “Maya Sen, a political scientist at the University of Rochester, has a new working paper arguing that the ABA has for the past 50 years been systematically less likely to recommend the judicial confirmations of women or racial minorities than that of white men.” The article explains, “[S]he uses a logistic [] regression to determine what effect various factors have on a candidate’s likeliness to get a given ranking. She includes not just race and ethnicity but experiential factors that should affect a candidate’s ability to perform well as a judge. Those include the length of time practicing law, services as a prosecutor or public defender, quality of law school attended, and so forth. As you’d expect, time spent serving as a judge, an assistant U.S. attorney or a law clerk all increase a candidate’s odds of getting a good ranking []. But three factors are associated with increased odds of getting a bad rating []: being black, being Hispanic and being female.”
Sources: Phillip Rucker, Obama Pushing to Diversify Federal Judiciary Amid GOP Delays, Washington Post, March 3, 2013 (infographic included); Dylan Matthews, Has the American Bar Association Kept Our Judges White and Male?, Washington Post, February 28, 2013.


Sequester Causes further Budget Problems for Courts
The sequester that went into effect last Friday could have substantial impacts on courts across the country. According to Thompson Reuters, “If the cuts are left in place, funding for federal courts this year will drop to about $6.6 billion, down 5 percent from 2012, said Charles Hall, a spokesman for the Administrative Office of the U.S. Courts, which allots funding. The agency, which has eliminated 1,800 jobs over the last 18 months, projects up to 2,000 job furloughs and layoffs nationwide. Officials also said they anticipate civil trials could be delayed for up to four weeks.” The article continues, “The projected cut of almost $350 million is likely to impact some courts more than others. While officials at smaller federal courts like the Western District of Washington said they would be unable to fill posts left vacant in recent years, court officials in New York City and Chicago said the reductions could impair the supervision of suspects and criminals, force staff layoffs, slow the pace of civil trials and, in a worst-case scenario, force courts to close for a day a week.” In addition to hurting the courts, the sequestration could also hurt public defenders.  “New York’s federal public defender office is facing cuts of about 10 percent, said David Patton, executive director and attorney-in-chief. He said his office will ‘almost surely’ have to furlough attorneys.”
Source: Bernard Vaughan, Federal Courts Brace for Sequestration Cuts, Thompson Reuters, March 4, 2013.


Federal Judicial Nominations and Confirmation Delays
The Atlantic featured a piece on confirmation processes comparing the current delays to the haste with which Abraham Lincoln’s nominees were confirmed. The article states, “To understand just how dysfunctional the process has become, consider how much easier Abraham Lincoln had it. Lincoln appointed more than three times as many district judges as his predecessor James Buchanan, in part because he replaced judges who had resigned from district courts in border or southern regions under Union control (there were not yet courts of appeals at the time). Southern Florida’s federal district court, for example, was a hotbed of litigation stemming from the Union blockade of Confederate ports. When its judge resigned, Lincoln was desperate to get a new judge in place.” The author goes on to directly compare those statistics to the current confirmation waiting periods, “Compare the Senate's behavior then — with a civil war raging, no less — with the 2013 court of appeals confirmations of William Kayatta of Maine and Robert Bacharach of Oklahoma, who was confirmed unanimously Monday. They were confirmed 387 and 399 days, respectively, after their initial nominations. It took the Senate more than a year to confirm nominees with no serious opposition, both of whom had the support of their two home-state Republican senators. Overall, Obama’s 32 court of appeals appointees have waited an average of 250 days for confirmation, his 141 district appointees 223 days.” The piece concludes, “No one suggests a return to Lincoln's time. Same-day Senate confirmations were not “advice and consent.” But today’s near-interminable nomination-to-confirmation times mean that the Senate isn't doing its job now either — advice and consent has become obstruction and delay.”
Source: Russell Wheeler, The Tortuous, Protracted Wait to Confirm Judges—From Abe to Obama, The Atlantic, February 25, 2013.


Bill Allowing Public Financing in Judicial Elections Moves in Kentucky
According to the Lexington Herald-Leader, “The House Budget Committee approved a bill Tuesday night that would allow for optional public financing of Kentucky Supreme Court races after the panel earlier in the day failed to garner enough votes for it. The sponsor of House Bill 31, Rep. Jim Wayne, D-Louisville, found enough Democratic votes to get a second vote on the measure and send it to the full House for consideration.” If the new bill is passed, “a candidate would have to get $25 contributions from 200 people in the district to qualify for public financing. The public money would come from an income tax refund check-off, unspent funds from other campaigns and voluntary contributions from the state bar association.”
Source: Jack Brammer, Bill To Provide Public Financing Of Ky. Supreme Court Races Makes It Out Of Committee, Lexington Herald-Leader, February 25, 2013.