The Judicial Bench Needs Professional Diversity, Too

March 26, 2014 6:00 a.m.

Before he became the first African American Supreme Court Justice, Thurgood Marshall had a groundbreaking legal career — one spent fighting for civil rights, racial equality, and fairness in the criminal justice system. When he retired from the Court, his colleagues reflected on how his unique perspective influenced the Justices’ deliberations. According to Justice Byron White,

Thurgood brought to the conference table years of experience in an area that was of vital importance to our work, experience that none of us could claim to match. . . . He characteristically would tell us things that we knew but would rather forget; and he told us much that we did not know due to the limitations of our own experience.

Today, federal judges like Marshall are the exception rather than the rule — far too few of them have worked as civil rights lawyers or represented indigent criminal defendants.

More broadly, these observations speak to the importance of professional diversity among all our federal judges. At Alliance for Justice, we are encouraged that, in the wake of the recent change in Senate rules that makes it harder to obstruct judicial nominations, President Barack Obama is working to increase professional diversity on the federal bench. But there is a long way to go — and he will need help from senators, lawyers, and advocacy groups to build on that progress.

Diversity of professional backgrounds matters for the same reasons as racial or gender diversity. Like all human beings, judges are the product of their background and experiences, including their professional lives before taking the bench. When a judge decides whether a claim is “plausible,” or whether a witness is “credible,” or whether police officers, when they stopped and searched a pedestrian, acted “reasonably,” her determination is necessarily colored by the nature of her work as a lawyer up to that point. And when an individual who has faced workplace discrimination, contaminated drinking water, or civil rights violations by police enters a courtroom, her faith that she will get a fair hearing is enhanced by a judiciary that includes judges who once represented people like her.

As Sen. Elizabeth Warren (D-MA) put it at a forum Alliance for Justice sponsored on the issue in February, “It matters that someone has represented people other than corporate clients, that they’ve had real experience with people who can’t afford lawyers, that they’ve had real experience trying to fight for the public interest …. It matters where you come from.”

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But, as we document in our new report, Broadening the Bench: Professional Diversity and Judicial Nominations, the judiciary does not reflect the full diversity of the legal profession. Even when accounting for every legal job they have held throughout their careers (meaning nominees are counted in multiple categories):

With more than 50 pending vacancies without a nominee, and with more vacancies sure to come, there will be plenty of opportunities for the President to continue to make professional diversity a priority.

But others must do their part as well. Lawyers with public interest backgrounds must seize this moment and apply for federal judgeships. Advocacy groups, lawyers, and others who work on judicial nominations should actively recruit judicial candidates with public interest and civil rights backgrounds. State judicial selection commissions and senators should encourage lawyers with professionally diverse backgrounds to apply for judicial vacancies, and, in recommending nominees to the President, should consider whether a candidate’s experience would add needed professional diversity to the judiciary.

And if, in the absence of the 60-vote threshold, Republican senators substitute alternative tactics of obstruction by refusing to submit names of reasonable candidates or by not returning so-called “blue slips” permitting the President’s selections to be considered, the Senate Judiciary Committee should revisit whether that courtesy should continue.

All of us are profoundly shaped by our personal experiences. Our view of the world is filtered through what we see and hear in our day-to-day lives. That’s why it is so important that the people who may someday judge us represent a broad cross section of the American people – not only in terms of race, or gender, or sexual orientation, but also in professional life experiences.

Nan Aron is President of Alliance for Justice, a national association of over 100 organizations committed to progressive values and creation of an equitable, just, and free society.

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