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 University of New York School of Law. My thanks to Andrea McArdle, Ruthann Robson, Janet Calvo, and participants 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 helpful research 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/JJ7VBRZN]; 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 & Meghan 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 will not be viewed as legitimate, just as an all-white jury deciding a case involving an African-American criminal defendant 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 Please 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 Accountability 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 Enters 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 Representation 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 , 288 CAPITAL UNIVERSITY LAW REVIEW [48:285 Improving the “diversity” 13 of the bench often has been discussed as a component of judicial selection and presented as a goal that nominally has had the support of the mainstream legal community. 14 President Jimmy Carter made the first notable progress toward improving diversity on the federal bench. 15 The Obama Administration was applauded for making strides in diversifying the federal bench. 16 Some state and local court systems also have made significant advances in diversity. 17 Judicial selection methods that support fairness and impartiality are particularly important at a time when there is significant evidence of bias and animus on the part of the Executive. 18 Today, there is deep concern that 57 WASH. & LEE L. REV. 405, 406–07 (2000) [hereinafter Ifill, Beyond Role Models ]; Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts , 39 B.C. L. Rev. 95 (1997) [hereinafter Ifill, Judging the Judges ]. 13 The word ‘diversity’ is complicated—it can serve as code for a wide variety of goals, including racial, ethnic, gender, sexual orientation, religious, economic, educational, geographic, political, or professional backgrounds. See, e.g. , CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL? 138 (2006) (“Of course, the idea of diversity, or of a mix of perspectives, is hardly self-defining. It would not make sense to say that the federal judiciary should include people who refuse to obey the Constitution, or who will let the president do whatever he wants, or who think that the Constitution allows suppression of political dissent or does not forbid racial segregation. Here, as elsewhere...