Economic Diversity in the Federal Judiciary

 David Yin

Diversity, in its many facets, remains a ongoing issue for the federal judiciary. The National Women’s Law Center recently published a report highlighting the current status of female judges at the federal level. Only 30% of Circuit Court, and District Court, judges are women, and some jurisdictions are (even) less equal than others. The Eighth and Tenth Circuits have a single female judge each, and New Hampshire and Montana have no female District Court judges at all.

With the defeat of Goodwin Liu’s nomination to the Ninth Circuit, there is only one active Asian jurist at the federal appellate level. And Arvo Mikkanen has been waiting since February to join the Northern District of Oklahoma and become the only Native American on the federal bench.

It is axiomatic for many that diversity of life experience is valuable for any collegial group, whether a classroom or judicial conference, and evidence supports this intuition. Studies have shown, for example, that including one woman on a three-member appellate panel of judges made it twice as likely for a plaintiff to succeed in Title VII actions alleging sex discrimination or harassment. Justice Ginsburg once commented that “the presence of women on the bench made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title VII” as a violation of civil rights.

The Occupy Wall Street initiative reminds us, however, that one measure of diversity lags behind all others – economic diversity.

Professor Jack Balkin suggests that OWS protestors should not only be howling against Citizens United; they might question whether the accumulation of power and influence by the wealthy class jeopardizes our constitutional Guarantee of a republican government: “A republican form of government is a government that pays attention to the welfare of the vast majority of its citizens, or in the words of OWS, it is a government that cares about and is responsive to the 99 percent, rather than a government that is captured by the 1 percent and made to do that 1 percent’s bidding.” Yet there is little chance this constitutional theory will pass muster in the Court, even without the barrier of political question doctrine.

It hasn’t escaped notice that the Supreme Court, which in Citizens United curtailed Congress’ ability to regulate corporate spending on political campaigns, is made up of five (six including Justice Sotomayor’s book advance) millionaires and three Justices with net worths in the six figures. Article III judges make between $169,300–$217,400 in salary, which is not quite top 1% but within the top 6%, and have full job security. Neither does this Court’s track record show a willingness to buck the 1 percent. Aside from Citizens United, the Roberts Court has also severely limited the ability for individuals to coordinate in class actions, and has ruled for business interests 15% more frequently than the Rehnquist Court.

In a dissent from the denial of rehearing en banc for United States v. Pineda-Moreno (a Fourth Amendment case which, consolidated into U.S. v. Jones, will be heard by the Supreme Court next month), Chief Judge Alex Kozinski of the Ninth Circuit suggested that a lack of economic diversity shaded the judges’ eyes from the plight of the respondent:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges. . . . Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. . . . The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

Unless we radically improve the educational opportunity and mobility of the least-off, economic diversity can probably never be “truly” achieved in the judiciary. In the meantime, with the potential capture of two other federal branches by moneyed interests, we can only hope judges will be cognizant of their relatively insulated positions and vigilant against decisions privileging the rich over the many.

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