Judicial Diversity

By Eric M. Gutiérrez, Legislative & Public Policy Director for the National Employment Lawyers Association

President Obama routinely gets high marks for his efforts to diversify the federal judiciary by nominating “non-traditional” candidates for federal judgeships. In fact, nearly three of every four nominees confirmed to the federal bench during his Administration are either women or minorities; he also is the first president who hasn’t selected a majority of white males for lifetime judgeships.

Articles and commentary addressing judicial diversity, however, have focused typically on racial, ethnic, and gender diversity. The National Employment Lawyers Association (NELA) recently published a report entitled, “Judicial Hostility To Workers’ Rights: The Case For Professional Diversity On The Federal Bench,” which targets another type of diversity that is equally as important and sorely lacking on the federal bench — professional diversity. Like his predecessors, President Obama’s nominees have largely been corporate lawyers, judges, or prosecutors prior to their nominations, while fewer have been public defenders, legal services attorneys, or public interest lawyers. Even fewer have devoted their professional careers to representing workers and civil rights litigants.

Overlooking qualified candidates whose professional experience includes representing workers in employment, labor, and civil rights cases inevitably reinforces the image of a judiciary that is unfamiliar with, and therefore indifferent to, the plight of everyday Americans. Moreover, as the NELA report points out, the lack of professional diversity has contributed to the increasing judicial hostility workers face in employment cases and the deleterious effect on workers’ access to the courts to vindicate their rights.

Justice Byron R. White remarked on the value of Thurgood Marshall’s professional diversity:

by Nicole Flatow

Following the Senate’s confirmation of J. Paul Oetken as the first openly gay male federal judge, President Barack Obama has announced another nomination that would add diversity to our courts.

Litigator and former assistant U.S. attorney Michael Walter Fitzgerald has been nominated to the U.S. District Court for the Central District of California, becoming Obama’s fourth openly gay nominee. The others are Alison Nathan, a nominee to the Southern District of New York, and Edward Dumont, nominated to the U.S. Court of Appeals for the Federal Circuit.

These nominations have contributed to the record diversity of Obama’s nominees, Politico reports.

Despite a backlog in confirming Obama’s judicial nominations, the president has surpassed his predecessors in putting forth diverse candidates to the federal bench. Obama has nominated more female, African American, Hispanic, Asian American, Native American and openly gay candidates as federal judges than Presidents George W. Bush, Bill Clinton, and George H.W. Bush. That includes two female Supreme Court justices, one of whom is the high court’s only Hispanic justice. The numbers are particularly striking for Asian-American nominees. Obama has nominated half of the Asian-American federal judges currently on the bench.

Of course, many of those nominees haven’t had the success of Oetken in getting through the confirmation process.