Educational and experiential diversity on the federal bench

A guest post by Lawrence Friedman

As recently noted in the Interdependent Third Branch, the novel coronavirus has caused the U.S. Supreme Court to close its doors to the public until further notice. Several of the justices fall into the category of persons most vulnerable to the disease: Stephen Breyer is 81 years old; Ruth Bader Ginsburg will be 87 next week; and Clarence Thomas is 71. Three other justices are in their sixties: Samuel Alito is 69, while both the chief justice, John Roberts, and Sonia Sotomayor are 65.

The list is a reminder of how gray the Court has become—and that the potential for multiple appointments is going to be a significant campaign issue in November. One aspect of that issue is the lack of diversity on the Court, which reflects the lack of diversity in the federal judiciary. A February report by the American Constitution Society put it bluntly: “judges who sit on the federal bench are overwhelmingly white and male.” In addition to gender and race, moreover, most judges at the highest levels of the federal system share another characteristic: they all attended a very small number of elite law schools. As the New York Times recently noted, most of President Donald Trump’s judicial appointees “have elite credentials, with nearly half having trained as lawyers at Harvard, Stanford, the University of Chicago or Yale.”

Consider the members of the Supreme Court. Four justices hold law degrees from Yale Law School, four from Harvard Law School and one – Ginsburg – started at Harvard and finished at Columbia Law School. Eight served as judges on federal appeals courts, while one – Kagan – served previously as solicitor general and, before that, dean of Harvard Law School. Just one –Sotomayor – served as a federal district court judge. Three served at one time as full-time law professors—Breyer and Kagan at Harvard, Ginsburg at Columbia.

Or, consider the members of the junior varsity Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit. Of the eleven judges not on senior status, five graduated from Harvard, two each from the law schools at the Universities of Virginia and Chicago, and one each from Stanford University and the University of North Carolina Chapel Hill. Only two served as district court judges prior to being elevated to the Appeals Court.

Twenty judges total and, among them, they represent just seven law schools, with almost half just one, Harvard. Only three, moreover, know what it is like to oversee civil and criminal litigation on the ground, to hear motions to suppress and make evidentiary rulings at trial.

This lack of intellectual and experiential diversity is not new. Observing, a decade ago, that Sotomayor would add diversity to the supreme court in respect to ethnicity, gender and economic origins, Renée Landers and I nonetheless concluded that selecting nominees from within a narrow range of qualifications defined by pedigree effectively deprives the public of judges “who may see the world and the legal issues it presents in ways that are different and more helpful than those [judges] whose views on the law were shaped by essentially the same educational and professional experiences.”

The American Constitution Society is right: “Courts should look like the people they represent,” which I take to mean the citizens the federal judiciary serves. But such diversity should not be limited to gender and race or ethnicity. Rather, on the nation’s highest federal courts, it should encompass the varied educational and practical experiences available in a profession that produces countless lawyers who have not served as either federal appellate judges or law school professors.

As in other areas of the law, presidents and senators could look to the states for other approaches. Just as state courts have been leaders in exploring the breadth and depth of constitutional commitments to individual rights and liberties through their own constitutions, so too have appointing authorities in many states valued diverse educational and practical experiences in selecting judges for their high courts. Of the justices of the Massachusetts Supreme Judicial Court, for example, three attended Harvard and one Chicago, while two attended Suffolk University School of Law and one Boston University Law School. Five sat earlier in their careers on the state’s trial court.

Elite law schools and federal appellate judges have no monopoly on teaching legal reasoning or applying it, respectively. It stands to reason that lawyers trained to consider the practical implications of doctrinal changes and how such changes may affect the parties before them are likely to have a different appreciation for the consequences of appellate decisionmaking. This is not to suggest that these judges make better decisions—just that, to the extent each of us is shaped by our experiences, the high courts on which these judges sit are likely to benefit from the perspectives they bring to bear on the resolution of disputes over statutory and constitutional meaning. It is important, as the American Constitution Society and others maintain, that judges look like the people they serve. It should also be important that they reflect the ways in which most American lawyers appreciate both the law and the role judges play in defining it.

This post is the first of a larger exchange on Supreme Court qualifications and the nominating process. For Jordy Singer’s response, click here. For Lawrence Friedman’s reply, click here.

In LA, changing your name to “Judge Mike” won’t get you elected to the bench

Los Angeles County held its judicial primaries on March 3, and one candidate took an unusual approach to attracting voters.

Candidates must list their current (or most recent) occupation in the ballot. Mike Cummins, a retired attorney, had briefly served as a judge in a smaller county in the early 2000s, but was no longer eligible to list his occupation as a judge. So he legally changed his name to Judge Mike Cummins.

The voters were not fooled. Cummins lost overwhelmingly to his opponent, Deputy DA Emily Cole.

And for those who were following the judicial hopes of former child actor Troy Slaten, alas, he too lost handily in his LA County primary this week.

On reforming the Supreme Court

Russell Wheeler at the Brookings Institution has taken a detailed look at the various proposals to reform the composition of the U.S. Supreme Court, from court-packing to term limits. He provides a short history of each proposal (including potential legal stumbling blocks). Most importantly, he determines that at this time, the American public has no real taste for Supreme Court reform — the most significant stumbling block for any court proposal.

Wheeler concludes:

That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.

Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.

Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.

I don’t think we are anywhere near that level, despite the hysteria created by left-leaning partisans and academics. While Republican presidents have appointed more Justices, and while the justices serve longer, on average, than they ever did before, the leftward policy drift of many Republican appointees over time tends to keep the Court much more balanced than it might seem at the time of a Justice’s confirmation.

The battle over the Court is, in my mind, partially a spillover from the current partisan battles in the other branches and partially a reaction to the Republican Party’s successful focus on judicial appointments since the Reagan administration. When bipartisanship in Congress has eroded as badly as it has, it seems inevitable that both parties will seek to punish each other to the extent they can in the realm of judicial nominations. And the undeniable success of Republican administrations in populating the federal courts over the past forty years has left Democrats in a state of agitation, bordering on desperation.

I do not know if and when some sense of bipartisan responsibility and decorum will return to Congress. But until then, radical proposals to reform the Court are likely to constitute ongoing collateral damage.

Still more embarrassment for the “Chicago Way” of choosing judges

Over the past three years, his blog has tracked the litany of shocking stories coming out of Chicago area judicial elections — shocking, that is, for anywhere except Cook County. There, it seems, the sulfurous mix of identity politics, voter ignorance, and unscrupulous candidates is a way of life.

This week, the Chicago Sun-Times and Injustice Watch added another depressing data point: “sham” judicial candidates who are placed on the ballot simply to confuse voters and throw the election. Here’s how it is alleged to work: when it appears that a candidate preferred by the city’s Democratic establishment is at risk of losing a judicial race, one or more “sham” candidates will enter the race and be added to the ballot. The “sham” candidates are not real, in the sense that they expend no money on the campaign, conduct no campaign events (and often barely have a campaign website), and don’t seem sincerely interested in a judicial post. But these “sham” candidates do have something in common: names that appeal to voters’ identity politics (which is Chicago, translates mostly to feminine -sounding first names and Irish surnames). The expectation is that voters, who have done no research on the judicial candidates on the ballot, will simply vote for those who sound like Irish-American women. (And there is proof that this expectation plays out in real life.) The “sham” candidates confuse enough voters to draw votes away from the non-establishment candidate, allowing the establishment candidate to prevail.

It’s doesn’t always work. The article, for example, relates how the presence of alleged “sham” candidate Bonnie McGrath in 2016 was not enough to prevent the victory of non-establishment candidate Carol Gallagher. And the alleged “sham” candidates have protested that despite their utter lack of campaign activity, their desire to be judges is sincere. But let’s be honest: the entire process is still shameful — or at least it should be, if the party bosses behind this ruse were capable of shame.

 

“Recruitment crisis” in Northern Ireland’s courts reveals misalignment in candidate and recruiter expectations

Northern Ireland is facing a serious shortage of judges on its High Court, and a recent report on the problem sheds some light into why. The government wants to promote only top barristers to the position, eschewing the candidacies of lower-level judges. But it turns out the targeted barristers are not interested:

Among the startling findings of the report obtained by the Irish News is the blunt admission by top lawyers that it simply does not pay to apply for what in the past was regarded as a promotion, with “considerable rewards still available to barristers and solicitors through non-publicly funded work”.

“As far as solicitors are concerned, the head of the Belfast branch of an international firm asked us rhetorically why he or she would want to take a 50 per cent pay cut in order to become a High Court judge,” the authors said.

“It seems clear, certainly, that in Northern Ireland there is a cadre of high-earning lawyers who, at present, are not likely to be interested in applying to become a High Court judge because they would be significantly better off financially if they stayed in their current job.”

One QC said simply: “I just wouldn’t be interested in the job.”

Continue reading ““Recruitment crisis” in Northern Ireland’s courts reveals misalignment in candidate and recruiter expectations”

Rhode Island confronts the future with an aging state supreme court

One of the (many) drawbacks of partisan judicial elections is that strong, knowledgeable, and experienced incumbents are at risk of being removed from the bench based solely on party affiliation. But the reverse is also true: in jurisdictions where judges are unaffiliated and have life tenure, it is often difficult to create any turnover in the judicial ranks — and when turnover does happen, it can happen all at once.

This article in the Providence Journal considers the case of Rhode Island’s supreme court, in which the youngest member is 68 and the oldest in his eighties. There is likely to be some radical turnover coming in the next few years as the current justices retire. It will present a special opportunity for whoever is governor as vacancies, but it also raises important questions about whether one governor should benefit from what could be seen as fortuitous timing.

These are the same questions that are routinely raised at the federal level, thus far without a clear answer.

In Memoriam: Mark Cady

The legal world has been shocked by the sudden death of Iowa Chief Justice Mark Cady on Friday. Chief Justice Cady joined the Iowa Supreme Court in 1998 and became Chief Justice in 2011. He was best known for authoring the court’s unanimous opinion in Varnum v. Brien (2009), which declared that prohibitions on same-sex marriage were barred by the Iowa Constitution. Voter dissatisfaction with that decision led to three of Cady’s colleagues not being retained the following year, which (ironically) opened the door for Cady to become Chief Justice in 2011.

Chief Justice Cady is being remembered as a splendid jurist and a dedicated public servant. That was certainly my impression of him on the one occasion I was able to meet him. The court system and public have lost a thoughtful, compassionate, and highly intelligent judge and leader.

The Iowa Supreme Court will take the time to appropriately grieve the loss of its chief justice (and indeed, it has already postponed oral arguments scheduled for this week). At some point, however, the court will also need to turn back to the more mundane task of filling his seat. Members of the court will choose the new chief justice themselves, but not until a new justice has been appointed. That process involves initial review of candidates by a 17-member nominating commission, with the final selection in the hands of the state’s governor, Kim Reynolds. The Des Moines Register has a good primer on the process here.

Deepest condolences to the family and friends of Chief Justice Cady.