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Move Over, Ivies: Judges Want Academic Diversity on Federal Bench

Untraditional routes to a law career, to say nothing of not attending Harvard, has long left qualified candidates on the sidelines of the selection process for judicial nominations.

WASHINGTON (CN) — Judges and attorneys told lawmakers Monday that the key to diversifying the federal bench is at the beginning: making law school admissions less homogenous, helping students from regional law schools get clerkships and making the nomination process accessible to nontraditional candidates. 

“The more diverse the perspectives and backgrounds that we bring to any collective body that’s making a decision, the better decisions we are going to get,” Representative Deborah Ross of North Carolina said at a hearing this morning of the House Judiciary Committee. “Because we cannot simply just have an echo chamber of people who see things one way.”

Witnesses called to testify agreed that a huge amount of progress has been made to diversify the federal bench in the past couple of decades, but there is still much that needs to be done. Especially with dozens of open seats in federal and appellate courts across the country. 

The vast majority of federal judges are white, male former prosecutors or former corporate law firm partners, and come from Ivy League schools — while women, nonwhites and those from other backgrounds are still sorely underrepresented. 

The lack of diversity is even more stark among bankruptcy and magistrate judges, who handle the vast majority of the federal docket.

“There is much more work to be done; one only needs to look at the current composition of our courts to see that,” said Representative Hank Johnson, chair of the Subcommittee on Courts, Intellectual Property, and the Internet. “For highly qualified lawyers that don’t fit a certain profile, the path to the federal bench can seem as narrow as a tightrope.”

U.S. District Judge Michael McShane of the District of Oregon said the path to the federal bench could be widened by making clerkships available to students from regional law schools. 

Instead, they are often overlooked in favor of students with Ivy League credentials. 

“Diversity and inclusion cannot rely simply on the pedigree of a diploma from a particular school,” said McShane. “It requires us to reach out and proactively invite more people to the table: rural students, first-generation graduates, public-interest law students, and minority students who did not have the support to navigate to our country’s finest law schools.”

In short, McShane says we need to get over our addiction to Harvard and Yale. 

“You can find competent, brilliant judges from any law school in the country,” said Jennifer Braceras, director of the Independent Women's Law Center, who argues that instead of law school, the test should be professional experience, integrity, impartiality and a sound judicial philosophy. 

“Good judgment is not synonymous with knowledge,” Braceras said. “The most brilliant and well-educated judges do not always exercise sound, decisive judgment.”

And the process starts even before clerkships: Bracera noted that law schools need to recruit diverse applicants, and make it accessible to diverse communities. 

Another way to diversify the federal bench is to make the selection process itself more accessible, said Representative Jerrold Nadler, chairman of the full committee. In most districts, magistrate judges are chosen by the judges themselves, and they often pick someone who they know and are comfortable with. 

“There are aspects of the process that resemble many other jobs," Nadler said. "People will not apply for a job unless they know about a vacancy and how to apply for it, and they probably will not apply if they do not think they are wanted or do not have an adequate system of support and resources to help them through a long and complex process." 

And, courts need to welcome those with nontraditional career paths, like immigration attorneys or public defenders.

“Serving the poor and marginalized should not be a strike against anyone if they have the detachment necessary to follow the law,” McShane said. “I was a public defender who opposed the death penalty. When I became a judge, I had to sentence someone to death because that was the lawful verdict of the jury. I followed the law. That’s what we do.”


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