The current issue of The Judges’ Journal magazine, a quarterly member benefit of the Judicial Division, is titled “Blueprint for Diversity” and features practical steps that can be taken toward the goal of a diverse judicial system.
In the article, “Assessing and Achieving Jury Pool Representativeness,” the authors note that the Judicial Division’s National Conference of State Trial Judges, along with Paula Hannaford-Agor of the National Center for State Courts (NCSC), identified a series of steps judges and administrators can take to determine if the procedures used to assemble jurors result in representative jury panels and improve the representativeness of those panels.
The steps focus on three areas:
- Establishing reliable methods of measuring the demographic composition of the jury pool. To obtain the most useful data, courts should use the same definitions and basic data-collection methods as the U.S. Census Bureau uses, asking jurors to self-identify race, ethnicity and gender using Census category responses. It is important that respondents have the opportunity to give a multi-race response, and that the race and ethnicity categories be kept correctly separate (for example, Hispanic and Arabic are ethnicities, not races).
- Ensuring the inclusiveness and representativeness of the jury pool. Inclusiveness means the extent to which the master jury list includes a jurisdiction’s entire jury-eligible population, while representativeness means the extent to which the master jury list reflects the characteristics of the community. A court can adjust master jury lists that are not inclusive or otherwise representative.
- Assessing and improving the way jurors are selected for the pool. The master jury list should be updated at least annually to ensure the accuracy of the addresses. If master jury lists are not frequently updated, people with lower socioeconomic status and minorities are particularly likely to be excluded from the jury pool because they are more likely to change residences than those with higher socioeconomic status and non-minorities.
Authors of the piece, all current or past members of the ABA Commission on the American Jury, were Judge William Caprathe, retired from the Circuit Court in Bay City, Mich.; Hannaford-Agor of the NCSC; Stephanie McCoy Loquvan of Moyers Sellers & Hendricks in Phoenix; and Shari Seidman Diamond of the Northwestern University Law School faculty. They concluded that, while some circumstances are beyond the control of the courts, the representativeness of the jury pool can be positively affected by court action.
In the same Judges’ Journal issue, Boston-based U.S. Bankruptcy Judge Frank J. Bailey tackled another diversity issue, that of whether Article I federal judges reflect the ethnicity of the populations they serve. Bailey’s article, “Does the federal Article I bench reflect the ethnicity of the populations that they serve? What if the answer is no?”, noted the importance of the issue: By far the largest number of cases filed in federal court are those filed in Bankruptcy Court, and magistrate judges handle the day-to-day work in thousands of federal cases.
Bailey reported on research from Nancy Dunham, the fair employment practices officer at the Administrative Office of the U.S. Courts. Dunham found that, as of 2014, the Article III bench was 72.3 percent Caucasian, magistrate judges were 82.7 percent Caucasian, and the bankruptcy judge population was 90.9 percent Caucasian.
A roundtable discussion on diversity in the federal judiciary held at last year’s Annual Meeting in Boston, attended by Bailey, suggested why Article I judges do not reflect the ethnicity of the populations in the locations in which they serve. The principal reason cited was that the pipeline of diverse applicants is not effective, that diverse candidates need to be encouraged to apply, that the standards for becoming a federal judge must be well understood, and that mentoring and preparation are necessary. At the roundtable, Magistrate Judge Ramon E. Reyes suggested the need to recruit minority law students to internships and clerkships to Article I judges.
A resolution passed by the ABA House of Delegates at its 2016 Annual Meeting in August in San Francisco, Resolution 102, urged the U.S. president and “appropriate parties” to recognize the importance of racial, ethnic, disability, sexual orientation, gender and gender identity diversity for the judiciary. The resolution further called for expanding the diversity of the pool of qualified applicants, nominees and appointees, including without limitation, the use of diverse merit selection panels.