Judicial Selection: Diversity, Discretion, Inclusion, and 'The Idea of Justice'

• Author: Natalie Gomez-Velez
• Position: Professor of Law, City University of New York School of Law
• Pages: 1-65

JUDICIAL SELECTION: DIVERSITY, DISCRETION,

INCLUSION, AND THE IDEA OF JUSTICE

NATALIE GOMEZ-VELEZ*

I. INTRODUCTION

Judicial selection norms are being tested in significant ways. The

current President Donald J. Trump is breaking standards of governance and

political discourse related to judging and the rule of law in troubling and

dangerous ways. At the same time, the abandonment of years of bi-partisan

approaches to judicial selection in an era of extreme political polarization in

a bald effort to gain “conservative” control of the federal courts,

1

has raised

the stakes for judges, justices and the process of judicial selection. The

implications of this shift are likely to be experienced for decades. The

United States’ constitutional system, governed by adherence to the rule of

law in a structure of separated powers, checks and balances is under

significant stress given presidential statements and actions that run counter

to law and well-established governance norms and are largely unchecked by

Congress. Moreover, concerns about blatant racial and ethnic bias and

animus by the current President further highlight the importance of an

independent, impartial, inclusive, and accountable judiciary to check

unlawful and unconstitutional actions.

* Professor of Law, City Unive rsity of New York School of Law. My thanks to Andrea

McArdle, Ruthann Robson, Janet Calvo, and parti cipants on the CUNY Law Professional

Development Committee for helpful comments on earlier drafts of this article and to Roberto

Velez for his editorial comments and steadfast support during the production of this article.

I am grateful as well to Dean Mary Lu Bilek and Academic Dean Ann Cammett for their

institutional and personal support for faculty scholarship. Many thanks to Irene Castro,

Mahari Simmonds, and Nicole Buckley for helpfu l r esearch assistance. Any errors or

omissions are my own.

1

See, e.g., Jonathan Bernstein, Mitch McConnell’s Senate Makes Judges, Not Laws,

BLOOMBERG (May 10, 2019), https://www.bloomberg.com/opinion/articles/2019-05-

10/republican-senate-can-t-be-bothered-to-vote-on-legislation [https://perma.cc/JJ7V-

BRZN]; Priyanka Boghani, How McConnell and the Senate Helped Trump Set Records in

Appointing Judges, FRONTLINE (May 21, 2019), https://www.pbs.org/wgbh/

frontline/article/how-mcconnell-and-the-senate-helped-trump-set-records-in-appointing-

judges/ [https://perma.cc/H633-QMDN].

286 CAPITAL UNIVERSITY LAW REVIEW [48:285

Several observers have noted that the Senate’s silence in the face of

egregious presidential statements and actions (including several ostensibly

impeachable offenses

2

and unconstitutional actions

3

) is based primarily on

the goal of filling the federal courts with “conservative” judges and justices.

4

This raises concerns about the blatant politicization of the federal bench and

its implications for the rule of law and the courts’ legitimacy. Another

striking feature of the current administration’s selection of judicial

appointees is their overall lack of diversity.

5

The highly political and starkly

exclusionary approach to judicial selection is cause for deep concern.

6

It

raises questions about how to establish a process of judicial selection and

2

See, e.g., ROBERT S. MUELLER, III, U.S. DEPT. OF JUSTICE, REPORT ON THE

INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION VOLUME I

OF II 7–8 (2019), https://www.justice.gov/storage/report.pdf [https://perma.cc/B4TFHAMF].

3

See, e.g., Jamal Greene, Trump as Constitutional Failure, 93 IND. L.J. 93, 95 (2018);

David Cole, Trump is Violating the Constitution, N.Y. REV. BOOKS (Feb. 23, 2017),

https://www.nybooks.com/articles/2017/02/23/donald-trump-is-violating-the-constitution/

[https://perma.cc/H4CF-GBTB].

4

See, e.g., Kevin Schaul & Kevin Uhrmacher, How Trump is Shifting the Most Important

Courts in the Country, WASH. POST (Sept. 4, 2018), https://www.washingtonpost.com/

graphics/2018/politics/trump-federal-judges/?utm_term=.6c6ee8c348fa

[https://perma.cc/5DAP-DB7P]; Lydia Wheeler, Meet the Powerful Group Behind Trump’s

Judicial Nominations, HILL (Nov. 16, 2017), https://thehill.com/regulation/court-

battles/360598-meet-the-powerful-group-behind-trumps-judicial-nominations

[https://perma.cc/VLX6-A3DA]; Elie Mystal, Donald Trump and the Plot to Take Over the

Courts, NATION (July 15, 2019), https://www.thenation.com/article/trump-mcconnel-court-

judges-plot/ [https://perma.cc/P9GQ-N5ZE].

5

See Stacy Hawkins, Trump’s Dangerous Judicial Legacy, 67 UCLA L. REV. DISC. 20,

23 (2019) (“For the first time in nearly three decades, the federal bench has actually become

appreciably less diverse, even as the nation has continued to experience rapid growth in its

demographic diversity.”); Catherine Lucey & Me ghan Hoyer, Trump Choosing White Men

as Judges, Highest Rate in Decades, CHI. TRIB. (Nov. 13, 2017),

https://www.chicagotribune.com/nation-world/ct-trump-blacks-judges-20171113-story.html

[https://perma.cc/LLU7-RAQK].

6

See Kevin R. Johnson, How Political Ideology Undermines Racial and Gender

Diversity in Federal Judicial Selection: The Prospects for Judicial Diversity in the Trump

Years, 2017 WIS. L. REV. 345, 365 (2017).

2020] JUDICIAL SELECTION 287

appointment that will safeguard the judicial branch’s legitimacy

7

and serve

justice and fairness.

8

How do we best select judges who possess qualities that best serve the

delivery of justice and fairness? Significant scholarly and practical attention

has focused on debates about election versus appointment of judges,

9

whether judges are primarily legal or political actors

10

, the influence of

campaign money on judicial independence,

11

and the need for greater

inclusion on the bench of members of historically under-represented and

subordinated groups.

12

7

See id. at 351–52 (“Diversity has generally been considered to increase the perceived

legitimacy of the judiciary in the eyes of the public. Put differently, an all-white judiciary in

most quarters wi ll not be viewed as legitimate, just as an all-white jury deciding a case

involving an African-American criminal defe ndant is not viewed as legitimate. A diverse

judiciary reflecting a cross-section of the greater community, resembling the cross-section

from which petit juries must be selected, generally will be considered to be more legitimate

than a homogenous bench.”).

8

See, e.g., Lori A. Ringhand & Paul M. Collins, Jr., May it Ple ase the Senate: An

Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees,

1939–2009, 60 AM. U. L. REV. 589 (2011); James Andrew Wynn, Jr., Judicial Diversity:

Where Independence and Account ability Meet, 67 ALB. L. REV. 775 (2004).

9

See, e.g., Steven Zeidman, Careful What You Wish for: Tough Questions, Honest

Answers, and Innovative Approaches to Appointive Judicial Selection, 34 FORDHAM URB. L.J.

473, 475 (2007); Steven Zeidman, Judicial Politics: Making the Case for Merit Selection, 68

ALBANY L. REV. 713, 718–19 (2005); Steven P. Croley, The Majoritarian Difficulty: Elective

Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 692–93 (1995).

10

See, e.g., KEITH J. BYBEE, ALL JUDGES ARE POLITICAL—EXCEPT WHEN THEY ARE NOT:

ACCEPTABLE HYPOCRISIES AND THE RULE OF LAW 12 (Austin Sarat ed., 2010).

11

See, e.g., James Sample, Court Reform Ent ers the Post -Caperton Era, 58 DRAKE L.

REV. 787, 789–90 (2010) (discussing the importance of judicial recusal rules pending needed

changes in judicial selection); James Sample, Caperton: Correct Today, Compelling

Tomorrow, 60 SYRACUSE L. REV. 293, 303 (2010).

12

See, e.g., Carl Tobias, Diversity and the Federal Bench, 87 WASH. U. L. REV. 1197,

1203–04 (2010); Linda Maria Wayner, The Affirmatively Hispanic Judge: Modern

Opportunities for Increasing Hispanic Represent ation on the Federal Bench, 16 TEX.

WESLEYAN L. REV. 535, 546 (2010); Barbara L. Graham, Toward an Understanding of

Judicial Diversity in American Courts, 10 MICH. J. RACE & L. 153, 154–56 (2004); Sylvia R.

Lazos Vargas, Does a Diverse Judiciary Attain a Rule of Law That is Inclusive?:What Grutter

v. Bollinger Has to Say About Diversity on the Bench, 10 MICH. J. RACE & L. 101 (2004);

Sherrilyn Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence,