November 10, 2014

Diversity on the Federal Bench: It’s about More than Gender and Race

Ann Farmer

Soon after Judge Mary M. Schroeder began serving on the U.S. Court of Appeals for the Ninth Circuit in 1979, she sat on a panel for a sex discrimination case brought by female flight attendants. They had been suspended or fired for exceeding the airline’s rigid weight requirements, a decree that was not imposed on airline personnel in other in-flight jobs, like pilots and directors of passenger service, held predominately by men.

Schroeder recalls that her two male colleagues on the panel had trouble identifying with the issue of weight restrictions “because they had nothing to relate it to.” But she grasped how the regulation had no relationship to the women’s abilities to do their job, noting that one plaintiff, who was 5 feet 5-1/2 inches tall, was terminated for weighing 146 pounds. What’s more, she says, “The airline industry had been guilty in the past of serious stereotyping of women and wanting to have sex objects flying for their male customers.”

After reviewing the arguments, the judges determined that the plaintiffs made a prima facie showing of disparate treatment. “And I think,” Schroeder says, “having a woman who was able to point out that these weight restrictions required all these women to be thinner than Miss America made a difference.”

Had President Jimmy Carter not placed Schroeder on the Ninth Circuit, that case might well have taken a different tack. Carter’s determination to open up the federal judiciary to more women and ethnicities is a process that has continued to greater and lesser degrees under subsequent administrations. President Barack Obama, in particular, has put more women and people of color on the federal bench than any president before him. The Senate confirmed the first-ever Native American female federal judge this year, Diana Humetewa, to the U.S. District Court for the District of Arizona. Obama also bumped up the number of openly gay or lesbian federal judges from one, appointed by President Bill Clinton, to 10 today.

At the same time, only about one-third of all active Article III judgeships (which include the U.S. Supreme Court, U.S. circuit courts of appeal, U.S. district courts, and the U.S. Court of International Trade) are women. In addition, a much smaller percentage of these female judges are women of color. According to a report by the Washington, D.C.-based National Women’s Law Center, only 77 women judges are of African American, Hispanic, Asian American, or Native American descent. Seven federal courts of appeals currently have no female minority judges at all.

Efforts to diversify the federal bench, therefore, must continue before it truly reflects the people it is judging and for all Americans to feel confident about getting an equal shake in court. “Women and minorities are litigants in the court,” Schroeder says, “and they deserve to have judges who understand what their experiences mean.”

The Value of Life Experiences

“I think that each judge brings his or her own perspective,” says Judge Ann Claire Williams, who was confirmed to the U.S. Court of Appeals by Clinton in 1999, becoming the first African American judge on the Seventh Circuit. Williams brought her background as a trial lawyer and former U.S. district court judge, as well as some sobering life lessons to which many Americans can relate.

Williams’ parents put themselves through black colleges, yet were shut out of job opportunities because they were black. The only public school teaching position available to her mother was part time. The door that opened to her father, despite his degree in political science and psychology, was to a seat at the front of the bus as a Detroit bus driver for 20 years. Williams recalls him telling her, “I did what I had to do” to provide her and her sister a better life.

Growing up, Williams lived with her family in a segregated neighborhood. So she is naturally sensitive to issues of race, gender, and class. But it’s just that. “I’ve tried to be fair and just and to appreciate the circumstances under which people live,” she says, “and the circumstances of people when they bring cases to the court.”

At the same time, she’s taken an oath to apply the law fairly to everyone. “And so it’s not a situation where, whoa, you get a woman in a sex discrimination case and, of course, she wins. That’s not what it is. Then I would be turning the law on its head. I have to apply the law.”

Professional Diversity

Despite kudos for his racial and gender picks, President Obama has been criticized for the lack of professional diversity among his nominees. Until November 2013, when the Senate passed a resolution preventing Senate minority filibusters on presidential nominees, 86 percent of Obama’s federal bench selections, according to the Washington, D.C.-based Alliance for Justice, were either former prosecutors or corporate lawyers, or both. Fewer than 4 percent worked as lawyers at public interest organizations.

Partisan Senate obstructionism is partly responsible. Supreme Court Justice Ruth Bader Ginsburg, who, earlier in her career, cofounded the Women’s Rights Project at the American Civil Liberties Union (ACLU), where she argued numerous gender equality cases, stated to an audience in recent years that if she were being considered for a seat these days, “my ACLU connection would probably disqualify me.”

In its July report, the Alliance for Justice called for more federal judges who have previously worked as public defenders, for public interest organizations, or as small private practice lawyers. “A truly diverse judiciary,” the report states, “is also composed of judges who have been advocates for clients across the socio-economic spectrum, seeking justice on behalf of everyday Americans.”

For one thing, broader professional experience allows judges to better understand the angles of a case. Judge Nancy Gertner, who retired three years ago as a senior judge on the U.S. District Court for the District of Massachusetts and has since written In Defense of Women: Memoirs of an Unrepentant Advocate, says, “It is an illusion to believe that your outside experience doesn’t frame your judging.”

She points, for instance, to a 2011 case from the U.S. District Court for the District of Massachusetts, Chao v. Ballista, involving a woman who had engaged in an affair with a correctional officer while she was in prison. The guard, Moises Ballista, was subsequently criminally prosecuted for sexual misconduct. The inmate, Cristina Chao, after her release from prison, sought damages from him and prison officials.

The government moved to dismiss the case on grounds that the affair was consensual, not rape. Gertner recalls that other cases across the country at the time also implied “that sex with a prison guard was not a constitutional violation.” But as a former civil rights and criminal defense lawyer (she joined the federal bench in 1994 as a Clinton appointee), Gertner had represented women in prisons and in sexual assault cases. So she recognized the complexity of the situation.

“She may have consented,” Gertner says, “but the relationship of power in a prison, in addition to the relationship of power between a woman and a man, suggested to me that this needed to be a jury decision, not mine.” She allowed the case to go to a jury trial. The woman won.

Economic and Time Pressures

Judge Martha Craig Daughtrey, of the U.S. Court of Appeals for the Sixth Circuit, says one of her favorite quotes from Supreme Court Justice ­Sandra Day O’Connor is, “If the pay gets low enough and the hours get long enough, someone will decide it is a woman’s job.”

This hasn’t quite happened on the federal bench, where judges receive a more-than-adequate income in addition to the prestige that comes with their position. But some people argue that salary caps are affecting the diversity pool, making the bench less appealing to those who are not financially well off. Gertner, for instance, retired from the bench three years ago partly for financial reasons. She now teaches at Harvard Law School in Cambridge, Massachusetts.

She says she took a financial hit when the economy spiraled downward in 2008, the same time that she and her husband, who works for the ACLU, were still putting their children through college. “I looked around at the rest of my court, and I seemed to be the only one struggling,” Gertner says. “There were people with inherited wealth. People whose [spouses] were wealthy. People who had made a considerable amount of money in private practice. There were not a lot of people like me in my court or across the country.”

Judge Gladys Kessler, of the U.S. District Court for the District of Columbia, says she’s heard similar complaints. “I know someone very active in getting judges for our local bench,” says Kessler, a former public interest lawyer. “This person has commented on how difficult it is to get people from certain ethnic groups to go on the bench, because if they’re really good, they’re at the big law firms, and they’re making a lot of money.”

In addition, Kessler says many judges are facing the financial burden of covering college tuitions. “There’s a whole issue with children now and having to send them through college,” she notes. “It’s just a big issue.”

Time is another obstacle. Kessler says she sympathizes with women lawyers who are raising families who aspire to become a judge one day. They struggle to put in the hours necessary to become a partner and have little time for the local bar association, an activity that bodes well for judicial candidates. “Things that require time,” she points out, “are still a struggle for women.”

Early Efforts to Increase Women

When she was first appointed to an intermediate Tennessee Court of Appeals in 1975, Daughtrey had never seen another woman judge before. “You would have thought there would have been a celebration,” says Daughtrey, who is currently a senior judge on the Sixth Circuit in Nashville, “but the problem was, there were so few women lawyers, there wasn’t anybody much around to celebrate.”

She did her best, though, to bring other women judges in behind her. “I do think it makes a difference in how the cases come out on occasion,” Daughtrey says, recalling a case of hers that involved a young, single mother who was raped when the key to her condominium, kept in an unsecured box by the developers, was taken by some workers who used it to break into her home to commit the crime.

“I was the only one who seemed to think that the developers were liable for negligence. The men didn’t think that it was foreseeable that she would get raped if someone didn’t take care of a key,” says Daughtrey, who recalls writing a long, angry dissent. “As women, you know why you lock the door.”

In 1978, because the usual networking groups, like the Rotary or Lions Club, were only open to men, Daughtrey helped found Cable, a professional women’s networking group in Nashville that is still viable 36 years later. Within the next couple of years, she helped galvanize women lawyers in her area to establish the Lawyers’ Association for Women in Nashville, Tennessee. “I said, ‘Let’s get going. We need a women’s bar association.’”

Later on, the local women’s bar association hosted “So You Want to Be a Judge,” a traveling informational seminar developed and launched in 1985 by California Women Lawyers. “I think it had a real impact,” Daughtrey says. When the next batch of Tennessee judges was appointed, “we had a slew of women who went on the bench for the first time,” she recalls. “So, actually, what we learned was to do it the way the guys did.”

Underrepresented on and by the Bench

A recent report by the National Women’s Law Center highlighted those federal courts where women continue to be underrepresented. Top on the list was the nine-member U.S. Supreme Court, where only three women decide issues of profound importance to women.

Women and men across the country were outraged, for instance, when the Supreme Court issued its Hobby Lobby opinion in June. The all-male majority held that for-profit companies could opt out of contraceptive coverage for their employees for religious reasons. Soon after that decision was rendered, Justice Ginsburg told Yahoo news anchor Katie Couric that she thought her male colleagues have a “blind spot” when it comes to women’s issues.

One of the worst courts for gender diversity is the U.S. Court of Appeals for the Third Circuit (which serves New Jersey, Delaware, and Pennsylvania), where women comprise only 23 percent of the judges. But it is still not as stagnant as the U.S. Court of Appeals for the Eighth Circuit (which has jurisdiction over district courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), where Jane Kelly, a public defender from Iowa, was unanimously appointed last year to serve as only the second female judge in that court’s history.

“There’s nothing in the qualified labor pool to explain it,” says Sally Kenney, executive director of the Newcomb College Institute of Tulane University in New Orleans and a professor of political science, about the lack of gender diversity on the federal bench.

In 2008, Kenney cofounded the Infinity Project, housed at the University of Minnesota’s Humphrey School of Public Affairs, Center on Women and Public Policy in Minneapolis, Minnesota, with the goal to get more women on the Eighth Circuit. The organizers approached potential women candidates and told them to prepare ahead of time for vacancies that arise suddenly and are quickly taken. They urged them to compile lists of their 10 most important cases—or, in the case of a woman judge, to list her most significant opinions.

Recognizing how judgeships are often used as political payback, representatives of the Infinity Project also met with senators and Senate candidates and urged them regarding judicial appointments, “Please don’t promise this seat to another white man because that will impede efforts to diversify the bench,” Kenney says. “That, I think, really bore fruit in Iowa.”

Kenney, who wrote Gender & Justice: Why Women in the Judiciary Really Matter, says, “Our position is, unless you raise awareness and put pressure, it doesn’t happen by itself just by virtue of people rising from the lower levels.”

Expanding Diversification

Ever since the threat of a filibuster has been eliminated, President Obama has been expanding his slate of nominees to include greater professional diversity. The Alliance for Justice reports that 72 percent of the president’s judicial nominees this year have previously worked as public defenders, solo practice criminal defense lawyers, or plaintiffs lawyers. In addition, half of his current 28 nominees in the Senate are women.

With more diverse judges filling the ranks, Kessler says she would also like to see more women and people of color occupying the most influential committees of the Judicial Conference of the United States, such as the budget and executive committees. Schroeder says one of her main concerns is the lack of geographic diversity on the Supreme Court.

“There’s a joke,” Schroeder says, “that all four boroughs of New York are represented. But there’s only one judge on the Supreme Court who was appointed from west of the Mississippi,” where, she says, many weighty social issues of our time stem from. “I’m talking about environmental issues, water issues, immigration issues, and issues in our relationship to Asian countries,” she says. “And I think that’s a problem.”

President Barack Obama’s Commitment to Diversity


Women in the Federal Judiciary: Still a Long Way to Go

Federal Court Percentage of Women

The Changing Face of the Federal Judiciary

Gender/Ethnicity Current Active Federal Judges

Ann Farmer

Ann Farmer is a Brooklyn, New York–based freelance journalist who covers breaking news for the New York Times and contributes stories on culture, law, crime, and other topics to publications including Emmy , DGA Quarterly, Budget Travel, and others.