Justice Thomas Wants More Diversity

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.