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Seven Recommendations for Building a Diverse Bench

Federal courts today fail to reflect the diversity of the public they serve. Correcting this is more than just symbolic —it will produce richer jurisprudence, incorporating a wider and more representative range of experiences, backgrounds, and perspectives.

August 24, 2017

Cross-posted from Insti­tute for the Advance­ment of the Amer­ican Legal System.

This month, the Bren­nan Center for Justice at NYU School of Law and the Amer­ican Bar Asso­ci­ation Judi­cial Divi­sion released Build­ing a Diverse Bench: Select­ing Federal Magis­trate and Bank­ruptcy Judges, a resource that offers prac­tical steps the federal judi­ciary can take to promote a more diverse bench.

A diverse bench is essen­tial to an effect­ive judi­ciary. A bench that reflects the diversity of the public it serves enhances public confid­ence in the role of the courts in our demo­cracy, and provides role models for groups under­rep­res­en­ted in the legal profes­sion. And diversity is more than symbol­ic—hav­ing broader perspect­ives on the bench produces a richer juris­pru­dence, incor­por­at­ing a wider and more repres­ent­at­ive range of exper­i­ences, back­grounds, and perspect­ives.

Federal courts today fail to reflect the diversity of the public they serve, and magis­trate and bank­ruptcy benches are partic­u­larly unrep­res­ent­at­ive. Women comprise over half of the U.S. popu­la­tion, yet hold only a third of magis­trate and bank­ruptcy judge­ships. People of color comprise almost 40 percent of the U.S. popu­la­tion, but hold only 15 percent of magis­trate judge­ships and 7 percent of bank­ruptcy judge­ships. While federal district and circuit court judge­ships are simil­arly unrep­res­ent­at­ive for women, people of color hold nearly 25 percent of such judge­ships: federal and district circuit court benches are markedly more repres­ent­at­ive for people of color than are bank­ruptcy and magis­trate benches.

These dispar­it­ies are partic­u­larly troub­ling because most Amer­ic­ans who encounter federal courts appear before magis­trate or bank­ruptcy judges. Magis­trates handle crim­inal and civil cases, from setting bail to hear­ing motions, and can rule on federal civil cases if the parties consent. Mean­while, nearly all bank­ruptcy cases come before a federal bank­ruptcy judge at some stage. There are more active magis­trate and bank­ruptcy judges (925) than active district and circuit court judges combined (795).

Build­ing a Diverse Bench details concrete steps that federal courts—whose judges are respons­ible for appoint­ing magis­trate and bank­ruptcy judges—can take to increase diversity among magis­trate and bank­ruptcy benches:

  • Diver­sify the Applic­ant Pool:
    • Engage in “Pipeline Build­ing”: Conduct outreach to law students and other poten­tial applic­ants for judi­cial vacan­cies, with inform­a­tion about the applic­a­tion process and the duties of magis­trate and bank­ruptcy judges, to encour­age consid­er­a­tion of a career on the bench. Speak to affin­ity and community groups about the import­ance of merit selec­tion panels, to encour­age applic­a­tions.
    • Proact­ively Recruit Diverse Candid­ates: Begin the recruit­ment process early, and develop strategies to recruit diverse candid­ates. For instance, reach out to minor­ity and affin­ity bar asso­ci­ations to recruit strong candid­ates, or host “office hours” to allow poten­tial applic­ants to discuss the process with court offi­cials.
    • Tailor the Job Descrip­tion and Distri­bu­tion Strategy: Having a trans­par­ent applic­a­tion process and widely dissem­in­at­ing relev­ant applic­a­tion inform­a­tion can increase the number of diverse applic­ants. There­fore, write and distrib­ute a detailed vacancy descrip­tion, partic­u­larly to stake­hold­ers like minor­ity and women’s bar asso­ci­ations.
    • Diver­sify the Selec­tion Panel: Diverse merit selec­tion panels are integ­ral to diver­si­fy­ing the bench. There­fore, seek recom­mend­a­tions for merit selec­tion panel­ists from stake­hold­ers like minor­ity bar asso­ci­ations. Courts can also increase the panel’s size to include more varied perspect­ives.
  • Prior­it­ize Diversity Through­out Vetting and Selec­tion Stages:
    • Estab­lish Rules for the Vetting Process, Affirm Diversity as a Goal: The panel should estab­lish clear rules for each stage of the vetting and selec­tion process, to ensure candid­ates are treated fairly. Panel­ists should also receive impli­cit bias train­ing, which data shows effect­ively mitig­ates uncon­scious biases.
    • Stand­ard­ize the Inter­view Process: Indi­vidu­als are partic­u­larly vulner­able to impli­cit biases when recall­ing past inter­views; to coun­ter­act impli­cit biases, the panel should stand­ard­ize inter­view proced­ures, ques­tions, note taking protocol, and inter­view length. 
    • When Delib­er­at­ing and Voting, Reit­er­ate the Defin­i­tion of Diversity and the Eval­u­ation Criteria: Review the panel’s previ­ously estab­lished criteria and goals to reit­er­ate object­ives, mitig­ate impli­cit biases, and facil­it­ate fair and uniform eval­u­ation of applic­ants. For instance, it should be clear to those decid­ing that their task is to weigh skills and exper­i­ences rather than solely titles and law school rank.

The federal bench will not spon­tan­eously become more diverse. By proact­ively pursu­ing diversity at each step in the process, however, commis­sions can achieve mean­ing­ful progress. And while Build­ing a Diverse Bench is aimed at those select­ing federal magis­trate and bank­ruptcy judges, similar prin­ciples apply else­where. Just last year, the Bren­nan Center released a similar resource for state judi­cial nomin­at­ing commis­sions.

The prac­tical steps outlined in Build­ing a Diverse Bench will help courts achieve import­ant judi­cial object­ives. A federal bench that reflects the diversity of the popu­la­tion it serves can produce a corres­pond­ingly inclus­ive juris­pru­dence, develop pipelines to diver­sify the unrep­res­ent­at­ive legal profes­sion at large, and, ulti­mately, enhance public confid­ence in a core insti­tu­tion of our demo­cracy.

(Image: Think­stock)