Diversifying the Federal Judiciary and Why It Matters

• Author: Jay Prapaisilp
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A. The George Washington University, (2017)
• Pages: 1221-1236

Diversifying the Federal Judiciary and Why

It Matters

JAY PRAPAISILP*

INTRODUCTION

Diversity within the federal judiciary took a dramatic plunge under the Trump

Administration.

1

That decline represents a serious loss to one of the three

branches of government. This Note will argue that diversity brings a myriad of

benefits to the federal bench and why society cannot afford to have a homogenous

pool of judges. Historically, diverse individuals have been largely been shut out

from attaining judgeship.

2

This Note will also highlight various literature and em-

pirical studies that have found both descriptive and substantive benefits from hav-

ing diverse judges on the bench.

3

To ensure that society can benefit from a

diverse judiciary, there must first be an acknowledgement about the impact that

diversity can have on the general population and then active efforts must be taken

to combat biases that can stem from the lack of diversity. These biases lead to

adverse results for both diverse litigants and general members of society.

4

Part I will give an overview of the current state of the diversity on the federal

bench and how the past few years have been devastating for diversity on the fed-

eral bench. Part II outlines why having a predominantly non-diverse federal

bench, namely white and male judges, negatively affects the judiciary. Part III

gives several reasons for how diversity brings benefits to the judiciary such as

viewpoint diversity, panel effects, and the impact on equal protection cases. Part

IV examines various Judicial and Model Codes to discern the lack of commit-

ment to diversity and the following harms that have resulted. Part V then offers a

few potential solutions that hope to increase overall judicial diversity. This

includes public education regarding the impact of the judiciary on their individual

* J.D., Georgetown University Law Center (expected May 2022); B.A. The George Washington University,

(2017). © 2021, Jay Prapaisilp.

1. See Rorie Solberg & Eric N. Waltenberg, As Barrett Hearings Begin, A Look At Trump-McConnell Judge

Appointments (Mostly White Males), NW. PUB. BROAD. (Oct. 12, 2020), https://www.nwpb.org/2020/10/12/as-barrett-

hearings-begin-a-look-at-trump-mcconnell-federal-judge-record-mostly-white-males/ [https://perma.cc/G6ZE-AYEJ].

2. Mark S. Hurwitz & Drew Noble Lanier, Explaining Judicial Diversity: The Differential Ability of Women

and Minorities to Attain Seats on State Supreme and Appellate Courts, 3 ST. POLS. & POL’Y Q., 329 (2003).

3. See, e.g., Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality and the Movement, GEO. L.

FAC. PUBL’N AND OTHER WORKS, 28–32 (2020).

4. See, e.g., Williams, supra note 3; Edward M. Chen, The Judiciary, Diversity, and Justice For All, 91

CALIF. L. REV. 1109, 1115–16 (2003).

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lives, strategic messaging to congressional representatives, and organizational

efforts whose mission is to further diversity on the federal bench.

I. BACKGROUND

With the passing of Justice Ruth Bader Ginsburg in September 2020, the public’s

attention immediately focused on who should replace her.

5

Of the nine justices on the

Supreme Court, three are women and two are people of color.

6

While the public tends

view the Supreme Court as the only court worth paying attention to, an entire court

system lies beneath.

7

The lack of diversity on the high court extends to the entire fed-

eral judiciary.

8

Of the active Article III judges, over seventy percent are white and

over sixty-five percent are men.

9

The predominance of white, male judges underscores

the history, norms, and lack of opportunities pervasive in the United States for women

and people of color.

10

Diverse attorneys often lack the resources that their white coun-

terparts have access to that can lead them to a position on the federal bench such as

influence, finances, and social connections.

11

Diversity within the federal courts has always been lacking but the issue has taken

on an increasingly prominent role following the election of Donald Trump in 2016

and the judges he has appointed.

12

With the abolition of Senate rules that had encour-

aged bipartisan confirmation of judges,

13

the influx of white, male judges onto the ju-

diciary has been astounding. Of President Trump’s confirmed nominees, seventy-six

percent have been male and eighty-five percent have been white.

14

This contrasts with

his predecessors who added greater diversity to the bench.

15

In fact, Donald Trump is

5. See Peter Baker & Maggie Haberman, McConnell Vows Vote On Ginsburg Replacement As Her Death

Upends The 2020 Race, N.Y. TIMES, Sept. 19, 2020, at A1.

6. See Current Members, https://www.supremecourt.gov/about/biographies.aspx [https://perma.cc/9GFB-

NQC6] (last visited Apr. 5, 2021).

7. See Courts: A Brief Overview, FED. JUD. CTR., https://www.fjc.gov/history/courts/courts-brief-overview

[https://perma.cc/T59W-CZQ2] (last visited Apr. 5, 2021); cf. Steve Eder, Most Americans Can’t Name A U.S.

Supreme Court Justice, Survey Says, WALL ST. J., (Aug. 20, 2012, 11:56 AM), https://www.wsj.com/articles/

BL-LB-43293 [https://perma.cc/9MD7-QEKC] (Even with the increased press of high-profile cases, two-third

of Americans struggle to name even a single justice).

8. Diversity Of The Federal Bench, AM. CONST. SOC’Y, https://www.acslaw.org/judicial-nominations/

diversity-of-the-federal-bench/ [https://perma.cc/WK7X-5DB5] (last visited Feb. 19, 2021).

9. Id.

10. See Chen, supra note 4, at 1113.

11. Id. at 1115.

12. See Ian Millhiser, The Absurd Whiteness Of America’s Court System, In 2 Charts, VOX (Oct. 3, 2019, 8:20

AM), https://www.vox.com/policy-and-politics/2019/10/3/20893643/whiteness-federal-judiciary-diversity-obama-

trump [https://perma.cc/DSW4-4Q22].

13. Nuclear Option: Why Trump’s Supreme Court Pick Needs Only 51 Votes, CBS NEWS (July 9, 2018,

3:09 PM) https://www.cbsnews.com/news/nuclear-option-why-trumps-supreme-court-pick-needs-only-51-

votes-in-the-senate/ [https://perma.cc/SC57-9DQV].

14. AM. CONST. SOC’Y, supra note 8.

15. See Nancy Scherer, Diversifying The Federal Bench: Is Universal Legitimacy For the U.S. Justice

System Possible?, 105 NW. UNIV. L. REV. 587, 588–90 (2011).

1222 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1221