Crain’s recent article on the lack of black male federal judicial appointments in the 7th Circuit has generated some strong comments. I agree that diversity on the bench is important. But I take issue with the overly simplistic finger-pointing at President Barack Obama and contend there is a systemic problem with a lack of diverse candidates.
Black Judges Matter For The People
It’s hard to proclaim that we are a government “by the people for the people” when those in authoritative black robes do not mirror the individuals who come to be judged. If people enter our justice system and see no one who looks like them, they feel shut out. And when people feel shut out of the system, having little trust that the system will treat them fairly, all in our country suffer.
In April 2015, Harvard’s Institute of Politics released a poll of 18 to 29-year-olds showing only half believed our criminal justice system was able to judge people without exhibiting bias for race or ethnicity. The disparity was more pronounced among blacks, with 66% responding they have little or no confidence that our judicial system is unbiased. The survey was released in the aftermath of the Baltimore riots that erupted over the Freddie Gray incident.
Since then, events unfolding across our country, including in Chicago, are not likely to quell the unease of our citizens about the integrity of our justice system.
Diversifying The Legal Profession
Efforts to diversify the ranks of the legal profession have been on-going over the last decade in the American Bar Association, as well as state bars. Beginning with 2006-07 President Irene Bahr, the Illinois State Bar Association has had robust diversity initiatives. Many initiatives focus on the “pipeline problem,” i.e., too few minorities obtaining the necessary preparation at the high school and college levels to become lawyers. Success has been elusive.
That’s because minorities have insufficient access to, and progression, within the legal profession. Graduating from law school, passing the bar, and obtaining significant experience all are prerequisites to a judicial nomination. The Journal of Blacks in Higher Education reported in 2010 that more black women than black men went to law school.
After law school and bar admission, however, there are further leaks from the pipeline. Black men rarely make Big Law partnership, traditionally a rich pool for judicial candidates. (Even fewer minority women do.) According to the 2015 National Association of Women Lawyers Survey, lawyers of color constitute only 8% of law firm equity partners, and the progress of minorities becoming partners has been stagnant for years. Clearly management needs to expend more effort to retain and promote minorities after they are hired.
President Obama’s Federal Judges
Against this backdrop, it is important to not measure the president’s nominations against a gender quota. It bears observation, as acknowledged deep in the Crain’s article, that President Obama’s nominees subsequently confirmed as federal judges are more diverse than those of his predecessors.
The lack of diversity in the judiciary—and the entire legal system—is a multi-faceted problem. It undermines the trust of the American people and therefore, the effectiveness of our justice system. This is a wrong we need to right together, without finger-pointing.
A version of this article was published in Crain’s Chicago Business on January 15, 2016.