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Analysis

Promoting Diversity Among Federal Bankruptcy Judges

There is an extreme lack of diversity on the bankruptcy bench, but judges are showing leadership to help address the problem.

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Diversity on the bench is critical to a fair and equal justice system. Yet judges on both federal and state courts fail to reflect an increasingly diverse American population. A recent Brennan Center report found that 24 states currently have all-white state supreme courts. According to the Federal Judicial Center, only 20 percent of all sitting federal judges are people of color and 27 percent are female, even though people of color and women make up roughly 38 percent and 50 percent of the population respectively.

Judicial diversity is central to both the appearance and reality of a fair justice system. Research shows that judicial diversity enriches judicial decision-making, promotes public confidence in the judiciary, and establishes role models across demographic groups.

Federal bankruptcy courts have a particularly poor record on racial and ethnic diversity. Americans are more likely to appear in bankruptcy court than in any other federal court, but bankruptcy judges are the least racially and ethnically diverse judges in the federal court system. According to data collected by Judge Frank J. Bailey, a bankruptcy judge in the District of Massachusetts, in 2015 only 7 percent of bankruptcy judges were people of color and only 31 percent were female. Numerous jurisdictions had all white bankruptcy courts as of 2015, including the Southern District of Texas, where people of color make up two-thirds of the population.

There are numerous contributors to today’s lack of judicial diversity, including structural inequalities within the legal profession and our broader society. Yet there are also proven methods to enhance judicial diversity — and importantly, judges are showing leadership in embracing concrete steps to promote diversity in the recruitment and assessment of bankruptcy judge candidates. They’re also taking action to build a diverse pipeline of future bankruptcy judges.

Bankruptcy judges are chosen differently than other federal judges: they are appointed by other judges. Bankruptcy judges hold renewable 14-year terms and are appointed by a majority vote of circuit court judges in their jurisdiction upon the recommendation of the judicial council, which is a group of appeals court and district court judges. While it is not required, in practice all circuits use a merit selection panel to vet and recommend candidates to the judicial council.

Recognizing that the judiciary is therefore in a unique position to address the lack of diversity on bankruptcy courts, in 2017 the American Bar Association Judicial Division partnered with the Brennan Center to develop best practices for recruiting, vetting, and interviewing candidates for bankruptcy and magistrate judgeships, including providing guidance on addressing implicit bias. An advisory commission of bankruptcy judges, magistrate judges, circuit judges, and circuit executives contributed to developing the recommendations.

The same year, then-Fourth Circuit Judge Andre Davis assembled a roundtable discussion about steps the judiciary can take to promote diversity, convening numerous stakeholders, including the Administrative Office of the U.S. Courts, the National Conference of Bankruptcy Judges, and the Federal Magistrate Judges Association.

Building on these efforts, on October 24, the Judicial Conference Committee on the Administration of the Bankruptcy System will be holding a major pipeline-building convening aimed at law students and attorneys, “Roadways to the Federal Bench: Who Me? A Bankruptcy Judge?” Simultaneous events will take place in 19 different cities across the country with a live broadcasted discussion in Washington. It will feature panels, roundtables, and receptions with judges, lawyers, and law students focused on bankruptcy practice and the path to the bench — helping to educate and build networks for future bankruptcy judges.

This event sends an important message from the federal judiciary that promoting judicial diversity is part of its mission — and hopefully this is only the start to a more active role by courts and judges in addressing the extreme underrepresentation of many communities in the courtroom.