State Supreme Courts Suffer from a Stark Lack of Diversity

Courts have tremendous power. Both state and federal judges make decisions that affect virtually every facet of our lives, from voting rights to educational equity, from disability rights to immigrant justice, from abortion access to safety in the workplace. And having a bench that reflects and represents diverse perspectives is core to achieving a system of justice that lives up to its name. Yet the lack of diversity in our nation’s courts is at crisis level.

President Donald Trump’s nominees to the federal courts are the least diverse in decades. As of early June 2019, none of President Trump’s 46 appellate court nominees are African American, none are Latinx, and only nine are women. Currently, the Seventh Circuit Court of Appeals has no judges of color, while the Fifth Circuit has no active Latinx judges. In the Eighth Circuit, President Trump nominated four white men, despite there being only one woman and one person of color on a bench with 17 active and senior judges.

Similarly, President Trump’s district court nominees are overwhelmingly white and male. This is a troubling deviation from nearly a century of nominations. Presidents Jimmy Carter and Barack Obama made diversity on the federal bench a priority — and now, President Trump is the first Republican president since Herbert Hoover to nominate fewer women and people of color to the federal bench than the previous Republican president.

As Justice Thurgood Marshall said, we condemn the courts to “one-sided justice” when we deprive the legal process of “differing viewpoints and perspectives on a given problem.” And this whitewashing of the courts comes at a time when the legal profession has more female attorneys and attorneys of color than ever before. Representation matters not only for the paths of future lawyers, but also for the communities who depend on our judicial system to affirm their lived experiences and recognize injustice from the perspective of many — not the isolated perspective of one.

Extensive research has also shown that including a broad range of viewpoints in the judiciary enriches deliberations, fosters better-informed decisions, and enhances public confidence in our system of justice.

But the lack of judicial diversity is not exclusive to the federal judiciary. The Brennan Center report State Supreme Court Diversity vividly shows that state supreme courts, which are generally the final word on state law, do not reflect the diversity of the communities they are supposed to serve. White men compose a disproportionate majority of state high court judges, while women and people of color are dramatically underrepresented. By some measures, over the past 20 years state high courts have become less reflective of an increasingly diverse America. This not only narrows the pipeline of potential nominees to the federal bench, but it also threatens the legitimacy of state courts in the eyes of the communities whose rights they are charged to protect.

Most people who interact with the legal system do so in state courts. And as the federal courts become increasingly inhospitable to civil rights, state courts are poised to become even more important venues for litigation. This report should spark critical dialogue at a time when those in our nation’s highest offices seek to erode the rule of law and silence communities of color.

Diversity on the bench is not a panacea. Differing perspectives do not themselves ensure that courts will recognize and protect our civil and human rights. But promoting decision-making that includes voices from our nation’s diverse communities will help foster an equitable system of justice.

All people in the United States deserve a system of justice that realizes its name. But today, at both the state and federal levels, courts lack the rich experience of our diverse communities. Building diverse and representative state and federal benches should be an urgent priority for advocates and lawmakers. We must demand more from leaders who have the power to build benches as vibrantly diverse as our nation.

Vanita Gupta is president and chief executive officer of The Leadership Conference on Civil and Human Rights. This piece appears as the foreword to the Brennan Center report, State Supreme Court Diversity.

(Image: Andrey Popov/Getty)