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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.

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.