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tv   Federal Judges Discussion at Center for American Progress  CSPAN  October 28, 2019 1:54pm-3:05pm EDT

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$5 billion and where does that money go? >> so to take your second question first, the money goes to the u.s. treasury, and in terms of the monetary fine, remember of course obviously the monetary fine is only one aspect of the relief that we obtained from facebook, yes, a $5 billion civil penalty but also broad injunctive relief that constrains the way in which facebook can handle consumer data going forward. >> watch our interview with ftc commissioner christine wilson tonight at 8:00 p.m. eastern on the communicators on c-span2. is diversity an issue on federal courts? advocacy lawyers and the dean of howard university's law school take on that question. the center for american progress hosted this discussion on how diversity impacts litigants, legal decisions, and the justice
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system. good morning, everyone. my name is winnie stack lburg, and i'm the executive vice president of external affairs at the center for american progress, and i want to thank each and every one of you for joining this very important event. we're here to discuss a fundamental issue, which strikes at the heart of our democratic values. if we truly believe that all americans deserve equal treatment in the eyes of the law, then we must ensure that our legal decisions are made by judges with backgrounds and perspectives that represent the experiences of all americans. study after study has shown that
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diverse groups solve problems in a more thoughtful and innovative way and arrive at more efficient and effective decisions and solutions. so it comes as no surprise that diversity among our federal judges in terms of their race and ethnicity, their gender, their sexual orientation, their gender identity, their religious affiliation and their professional background helps produce a stronger justice system. it places greater power in the hands of people who better understand the struggles of communities that have suffered discrimination and whose voices have been pushed to the margins of our society for too long. it is crystal clear that our current judicial system fails to capture the breadth of the american experience. in fact, a new cap report, which i hope you all have copies of, a
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new cap report released just this morning by danielle root, finds that 80% of sitting federal judges are white and that nearly 60% are white males. right now there is a disturbing lack of racial diversity on our federal benches and fewer than 1% of all federal judges identify as lgbtq. now, it's true that some presidents in recent history took action to address these trends, most notably president barack obama and his administration, but since entering the white house, president donald trump has worked tirelessly to undermine and overturn such efforts. the trump administration enabled by mitch mcconnell and senate
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republicans have managed to confirm 152 of trump's judicial nominees who are overwhelmingly white and male. in fact, 73% of trump's appointees have been male and more than 80% have been white. and if progressives want to fully advance the causes we care so deeply about from protecting the rights of immigrants and people with disabilities to expanding affordable health care and reforming our criminal justice system, then we must improve the diversity of our federal courts. that's why cap is so proud to host today's event and to welcome an esteemed panel of experts who are committed to achieving this very mission. with that, i have the great pleasure of turning the program over to chris kang, the cofounder and chief counsel at demand justice, who will help moderate our conversation. thanks to everyone and please
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enjoy this important conversation. come on up. thanks, chris. [ applause ] >> all right. welcome for this very important conversation on diversity in our judiciary. i'd like to introduce our esteemed panel. sitting directly to my right is danielle holly walker. she's dean and professor of law at howard university school of law which i'm sure you know is the oldest historically black law school in the united states. as a law professor, she centers her teaching on the federal courts and inequality and education among a number of other subjects. she also studies diversity in
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the legal profession. prior to joining the howard faculty she was the associate dean for academic affairs at the university of south carolina and currently serves on the board of the lawyers committee for civil rights. to her right we have andrea senteno, who is the regional counsel at the mexican american legal defense and educational fund. it is one of the oldest latino legal rights organizations in the country, andrea oversees the litigation work for the u.s. court of appeals for the d.c. circuit, fourth and 11th circuits. she's been responsible for federal policy immigration work including issues related to enforcement, administrative relief and legislative proposals. to her right we have professor ganesh sitatarmin, director of law and government at vanderbilt law school. he's an expert on court reform and co-authored an article entitled how to save the supreme
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court. in 2017 he was appointed to the american constitution society's board of directors and serves as an acs academic adviser. he's also a senior fellow here at cap, and last but certainly not least, to my far right is sharon mcgowen. sharon is the chief strategy officer and legal director at land legal, the country's largest and oldest legal organization committed to achieving full recognition of civil rights for lgbtq people and individuals living with hiv. previously she served in the obama administration as the principal deputy chief of the appellate section of the civil rights division at the department of justice. during retirement from doj sharon was repeatedly recognized by the attorney general and received awards for her role in convincing the administration to stop defending the so-called defense of marriage act developing legal arguments in support of nationwide marriage equality among a number of other important initiatives. as you can see, we have a very esteemed and appropriately enough diverse panel here with a lot of experience before courts,
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studying the courts, sort of looking at how the courts fit into our democracy, and on the one hand, i feel like we probably all understand why we're here and why it's important to be here. on the other hand, i think it's probably worth taking a few minutes to really talk about why diversity on the federal bench is so important. i think that maybe one great way to think about this conversation or to start this conversation is by asking sharon because the supreme court's going to be considering cases on tuesday regarding whether or not people can be fired based on their sexual orientation or gender identity and as winnie mentioned, less than 1% , i thik probably about a dozen of our nation's federal judges identify as being lgbtq, and so i think that that's sort of an interesting way to think about the impact and really necessity of diversity on our court. so sharon, do you want to get
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started for why we're here? >> absolutely. thank you so much, chris, and thank you to cap for having us. as i was telling our fellow panelists, we are in the countdown to the opening of the supreme court's term, and on the second day of the term we will, in fact, have a full day of argument on the question of whether title 7, the federal employment discrimination law that prohibits discrimination on the basis of sex will be understood as also reaching claims of discrimination against someone for their sexual orientation who are they are attracted to or their gender identity, how they identify. and it's interesting to think about judicial diversity in this context because this case is in many ways very much a straightforward statutory construction case. this is about whether or not the term sex covers discrimination when i am fired for having a wife, but my male co-worker is not or whether i can lose my job because my boss finds out that i had transitioned and had been assigned a different sex at birth, but i'm still the same
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person and able to do the job but whether or not my employer is able to fire me. so in many ways we would argue it shouldn't matter who is sitting in the chair when you are looking at terms and statutes or looking at principles that are often well, well engrained into our jurispruden jurisprudence. what we know is who sits in the chair does matter. one way it plays out in cases like the ones that are going to be heard on tuesday is we have a lot of work to do to educate the court about who lgbt people are, particularly who transgender people are because we see opponents on the other side making, you know, radical and completely divorced from facts arguments about who transgender people are, who the lgbtq community is, what giving us full rights under the law would mean in terms of the praise of -- and we have to assume that we need to do that work in a way that if we had greater confidence that if we had a
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judiciary that was representative of full ranges of community that work might not be as necessary. i also think it's important when we think just beyond the supreme court to the courts of appeals where the overwhelming majority of these cases are decided since we know so few cases make it to the supreme court and at the district court as well where there's such an important moment of determining whether or not individuals will not only have their rights adjudicated fairly but whether or not they will be treated with the respect and the dignity they deserve, and i think it's quite interesting as we have seen the waves and waves of judicial nominations working their way through the senate, often just being rubber stamped by the judiciary committee and the full senate, we have individuals who are not even willing to commit that they will refer to litigants in their courtroom by their appropriate gender pro nouns. we also know that we have litigants who are unwilling to actually affirm on the record that brown versus board of education was correctly decided. for anyone who is relying on the rule of law, we obviously know
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that the lgbt precedents are even more recent vintage than cases like brown versus board of education. so having individuals who are not sort of able to not only sort of bring their life experience but even capable of actually affirming some of the key precedents that have allowed us to make progress with respect to diversity and inclusion in our country is a sign of the precarious times that we are in. >> thanks, and i think that's an interesting point because you certainly don't have to be an lgbtq person yourself to find -- or to understand the discrimination just like you don't have to be a person of color or a woman to sort of have these rulings that have begun to come down, but i do think that having that perspective is important to build the confidence in our democracy. i think that, you know, the other than things we talk about diversity, and i will say too that just having this conversation expands already the conversation around diversity often centers around gender.
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it centers around race. now we're starting to talk about sexual orientation, gender identity. as the report notes, there's not enough data yet around religion or people with disabilities. but then the other aspect that i think is important and somewhat overlooked when we think about diversity is professional diversity, and i think that that is as we think about having a judiciary that represents the breadth of american people, but also the breadth of the legal profession having more professional diversity is incredibly important as well, and i know you've done some thinking about thisment i wonder if you can talk about this. >> thanks so much, and thanks first to cap for having us today and for putting together this great report. i encourage people to take a look at it. it has some really arresting statistics over time and just looking at the present in terms of thinking about appointments to the federal bench. in terms of, you know, other kinds of diversity, we often talk about professional
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diversity, but really don't interrogate fully what that means or think through other parts about how we might think about diversity. we right now have a supreme court that is pretty well -- does a great job of representing the different boroughs of new york city, for example, does not do a great job of representing the different regions of the country. we have a supreme court that does a great job of representing harvard law school and yale law school, doesn't do a great job of rempresenting the rest of th country. we have a supreme court that -- and we have federal courts in general that do a great job of representing corporate lawyers, prosecutors, but not a great job of representing workers, laborer consumers, public defenders. those kinds of professions are less part of the background of people who get to the federal bench, and so you might ask why is it important to have people from the west or the south, the people who were public defenders, people who, you know
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maybe had a different path from law school or through their professions, maybe were veterans. why is it important to have those people? and part of it is that every judge brings a lot of background to cases, to think about facts, and brings an expertise of a lifetime of work in different sectors, and so what we want is a federal bench that has a lot of experience with different areas of the law, not just one area of the law that has been representing different kinds of parties and thinking about and hearing different kinds of arguments, and that's good for the rule of law. it's good for the kind of deliberation that we want on courts and among judicial panels within the supreme court, and that's something that we're lacking and we need to think more about as we go through appointments going forward. >> when we think about how we get a more diverse judiciary, to say president trump is turning the clock back would be generous as he does have the fewest people of color nominated since
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president reagan and has not yet nominated or not yet confirmed a single african-american or hispanic judge to the circuit courts, or as he's reaching record paces and record numbers of circuit court judges, none of them have been african-american or hispanic, and i think that maldaf and the national hispanic leader agenda in particular has taken a role in noting the need for diversity and saying that they would oppose all circuit judges until president trump nominated a hispanic judge to the circuit court and now he's now done that. i'm sort of wondering if you can talk about how you guys came to that position and sort of what you do now that president trump has finally nominated a single latina to the circuit court, and sort of how you will evaluate her nomination? >> so thank you for having me here. this is such an important conversation for the entire
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country. all of us are invested in the integrity of our courts every single day, and so making sure that our courts are representative of america is incredibly important to everyone, not just to racial minorities or other minorities in historically under represented groups. and so for the national hispanic leadership agenda which is a coalition of 45 latino national organizations across the country who are invested in everything from civil rights to the environment to health care, we really looked at the shissues w care about, which are the issues everybody cares about and the fact that this particular president has been so terrible on his record of nominating individuals from diverse backgrounds across all boards was just so absurd and unacceptable that we reached a point and will realreally for ug
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point was that there was a retirement in the fifth circuit. the fifth circuit at the time had the highest proportion of latinos living in the circuit, and so today the fifth circuit is almost 30% latino, and there are no, no circuit court judges on the fifth circuit that are latino, and for us that really hit a point where we felt like it was incredibly important that we stake out a position that clearly articulated how absurd this is. and so we took the position that we would oppose all circuit court judges until and when the president nominated and confirmed the senate confirmed a well-qualified latino or latina judge. and the reason why we say well-qualified, is because as you read the report, which i echo the sentiments to please read it, it has a lot of
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wonderful information. if you read the report, particularly in part two, there is a good summary of the need for diversity on different fronts, descriptive diversity versus substantive diversity i think is what it -- what it characterizes it as, and so what we're really getting there is that descriptive diversity making sure that you are able to say, yes we have x percent, you know, latino jundges, hispanic judges on the bench. looking at the general judiciary as a whole is incredibly low compared to the general population for latinos. you've got 6.6% of all federal judges are latino, and we are almost -- we are over 18% of the population. again, as you look at the circuit court judges, the number gets far, far worse, and particularly this president and who he is nominating. so looking at both descriptive and substantive representation for our communities so well-qualified is incredibly
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important to us. we look at the record of the judge or the nominee if they have not been a judge before, we look at the entirety of it. because what we're really getting to is, yes, we want diversity on the bench. we want descriptive diversity, but we need to have substantive representation on the bench as well. we need to make sure that that nominee understands civil rights law, understands employment cases, understands the importance of, you know, the challenges that workers face when they come to the court seeking to enforce their rights, that they understand voting rights law, that they understand immigration law because all of these things are so important to our communities and particularly for maldef as an organization that litigates, we need to know that the nominees that are being put forth and are being confirmed are those who are qualified and competent to handle the cases that we work on every single day. and so we are very much invested
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not just in descriptive, you know, representation, we need to make sure that those judges who are being put up are not just being put up as tokens, but rather than being put up because they're going to be good, neutral arbiters of justice, and so that's how we will, you know, review the record of the recent nominee, barbara lagoa for the 11th circuit. obviously, you know, that is a positive sign that he has finally nominated someone. it's shameful that it's taken him this long. it's shameful that we still don't have more nominees who are representative of our country, and so that's not to say even if she is confirmed that the work is done. this administration has a lot of work to do and the country has a lot of work to do to reach representation for all judicial positions. >> so conservatives often defend the record of president trump and even before that president george w. bush who was a little bit better but nowhere near what he should have been.
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they say that, well, it's not their fault that they're now t e putting forth diverse judges, because most important to them is adhering to a constitution that excluded both women and people of color and in some ways immigrants as well. but to the extent that they're very outcome driven, in my opinion, can you blame them? can you blame them for having such a non-diverse judiciary? or sort of what do you think is going to be the long-term outcome if only one president's nominees reflect the diversity of this country and another's doesn't? i'll sort of throw that out to anybody who has thoughts on that? sharon, i know you have thoughts on everything. >> well, look, i share your view that this has been an issue that has galvanized the right wing.
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you know, they have had a long-term sort of game plan on this. i think in many ways it's not a coincidence that there aren't necessarily binders full of women and people of color espousing to their particular judicial philosophy. because as you say, it is one that is -- not necessarily even consistently applied or sort of genuine in its own terms, because i do think it is obviously sort of informed by certain outcomes it is trying to achieve, but i do think, you know, what that means though is that we need to make sure that when we are talking about diversity on the bench, we are challenging, you know, the narratives that i think that we've seen and i find particularly troubling that anyone who is coming from something other than a straight white male background should automatically be viewed with some skepticism because they might be an activist, right, they might have an agenda. i think about the ways in which
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judge vaughn walker, who was not out as an openly gay man when he was confirmed but came out over his course of time on the bench. he has someone who has since been confirmed by this administration as a judge challenge his ability to sit on a case involving lgbt people and lgbt rights on the assumption that inherently he was going to be biased. we saw con stance baker motley face that. this is where the deep systemic racism, homophobia sexism comes into play with the assumption if you are white you are neutral. if you are male you are neutral. if you are straight you are neutral, and if you are not those things, you are presumptively biased, i think that plays out with respect to the diversity of professions as well. we were talking about whether as public defenders, the idea that someone like ruth bader ginsburg comes out of a background of aclu women's right advocacy, no matter how well established
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those cases are in the jurs prurjurs prurns, where even sort of taking on clients that raised very deep issues about racism in the criminal justice system, you know, inherently became suggestions that these people were not qualified to be fair and impartial administrators of justice. i think we need to interrogate some of the biases that come out in assessing who can be fair, who is capable of being a good judge and think about the way that really tracks along systemic racism, homophobia, sexism, et cetera. >> i think one of the issues that the report does a really good job of bringing up is this notion that being a judge is just the pinnacle of many people's legal careers and our profession is doing a terrible job of basically increasing diversity, so we are still at a point where this is essentially the lack of diversity in the judiciary, yes, it is about
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judicial philosophy, but it really at its core is about a lack of racial diversity, a lack of other kinds of diversity in our profession in general. so if you look at where we are now, only about 14.5% of all lawyers are non-white, so that means our judiciary is unlikely to do better than that if we have a profession that still does not reflect the diversity of the united states, only about less than 5% of lawyers, about 4.8% of all lawyers are african-american. same statistic for asian americans, and about 5% of all lawyers are hispanic, so that means our profession is one in which we are not diverse, so we can expect that at the top of the profession including law firm partners, including judges, that we will see a tremendous lack of diversity. so i think one of the things that the report really does is talk about lack of diversity in the judiciary, you cannot talk
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about it in isolation. there's no way to talk about diversity among the judiciary without talking about diversity in the legal profession. until we address those systemic problems in our profession, we'll never get to a point where we have a diverse judiciary, and without a diverse judiciary, i think going back to your question about why is this so critical, there are whole swaths of our american society, our fabric that have no faith in our judicial system, either on the criminal side or on the civil side. when you have the eroding of basic democratic institutions like the judiciary, you end up with chaos, and i think we're seeing the results of that. and racial diversity and diversity of all other kinds including diversity of profession i think is very key to establishing to litigants, and even people who do not find themselves in the court system, you'll see, especially when you ask young people about how they
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feel about going into -- what they feel about our current criminal justice system, they express almost no confidence in what is happening in a core institution in our democrat until we address the questions of diversity in the profession, and then of course address them at all of these various levels at the top of the profession, we will not see that confidence in our judiciary grow. and without that, we are in serious jeopardy of seeing all of our institutions erode. >> well, i think that's exactly right. i'm going to stick with you because you sort of -- it's literally your job to sort of figure out how to get the law students at your school and i think lawyers of color and beyond into these positions into into the highest levels. we have a lot of work to do as you say. what are sort of the things you're doing , or what is your experience to help lift these lawyers up? >> i think one of the -- this is
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my sixth year at howard, before that i attended a predominantly white law school. one of the things i recognize now that i'm at howard, 50% of all african-american lawyers graduated from an hbcu, 80% of all african-american judges wentz to a historically black college or institution. we do not think about those kinds of fundamentals as a profession when we say we want to talk about diversity in the judiciary. we'll take judicial education, recruiting of judges everywhere except for the place where you can actually find the people who can fill those slots, so we ignore the institutions that actually have a track record of producing diverse individuals for the profession. i would say the same about the hispanic serving institutions. for us pipeline programs are extremely important for the profession in general. we're doing a program at howard where we are inviting the federal judiciary.
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we're partnering with the federal judiciary to do recruitment fairs where they talk about how you pipeline into the federal judiciary at howard, so actually at the law school invite them to come there to do general panels that are for everyone but to do them in sites where you're most likely to get a diverse group of lawyers. i think the other thing is to track people and to try to educate them about what are considered to be the prerequisites to becoming a judge. a lot of law students do not understand the aspect of that. we have to talk about the importance of having judicial courtships, to make sure they are thought of in that same group of people being recruited for the judiciary, but making those pipelines very, very clear about how you eventually have an opportunity to be appointed. i would really encourage, and i think what we see in the report is to actually ask ourselves the hard questions about if we are going to recruit more lgbtq judges, how -- where are the places where we can actually
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find people to recruit? if we continued the same patterns of recruitment, promotion of law students, promotion of young lawyers, we will never change the skrout comes we see in this report. the only way to change them is change our fundamental way of looking at the profession and the way we do all forms of recruitment in the profession. >> i think that that -- i think that that's great in terms of building on the big systemic issues we have to think about. i also think one of the -- there are a lot of striking statistics that come out of this report. one that was compelling to me is we think about the usual markers of becoming a judge. i think one thing that we're familiar with is a clerkship, sort of your first year out of law school, which i think sort of sbu tintuitively i understoo be dominated by white and male lawyers. with respect to law schools, ganesh mentioned the supreme court, but overall our courts are dominated by lawyers who go to these top 14, top 20 law
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schools. in the report it notes that on top 30 law schools, 58% of white law students graduate from the top 30 law schools compared to only 10% of asian students, 8% of hispanic students, and 5% of black students, and so when we think about again, sort of how we're cutting down, when you look at resumes and you sort of look and the most important thing is what law school you went to and whether or not you clerked, you're sort of eliminating potentially 95% of black lawyers or 90% of hispanic and asian american lawyers, and then clerks on top of that, it was striking to me in the obama white house how important a clerkship was, and i admit i never did one, and so maybe i don't understand, but for those who did, do we put the right amount of emphasis on like the clerkship? because to me it's like the thing you do right out of law school. is that really from your experience a helpful indicator for sort of becoming a judge or
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being a successful judge down the line? >> so i guess i'll start as a professor by saying to any students out there who are thinking about applying for clerkships, i encourage you to do so. it's a great way to spend a year. i do think people put too much emphasis on a clerkship in terms of can you be an excellent jurist without having done a clerkship? obviously you can. we have amazing lawyers in all parts of our country who have gone to different types of law schools. some have never done a clerkship, we've had people who are great lawyers who have -- and you can find that out in lots of different ways. there are people who have spent years litigating cases, plaintiffs side, public defenders, maybe did a clerkship, maybe didn't, but there are other ways to see the quality of people's work. the reality is no one's becoming a judge the year after they finish their clerkship. they're going to spend a decade,
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two decades actually working as an attorney and. >> except in this administration where apparently you can be out of school for about five minutes as long as you went to the adf boot camp, and then you get to be a judge. >> in the general case i think people have a fair bit of experience, and we could look at that as a way to see who's qualified, what kind of skills they have as lawyers, and would be bringing to the bench. so, you know, i think that there's a bit of an over emphasis given that as we think about things in most places and careers, the things you did when you were younger should matter less and less as you get older because you've done a lot more things in the interim. i think that should apply in this case, too. the other thing i'd just add on this is a big component of how we should think about who should be judges, where we get the pool of judges is actually by encouraging people to apply and thinking about how the structures are for who gets to
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be a judge. and there's actually a lot of variations state by state, senators by senators depending on if we're in a federal system or the state system. in some cases, you know, the selection of judges is almost who people know and who people are friends with and who's in their social networks. in other cases, there are commissions that come together and take applicants, look at them, consider who they are. you know, so part of what we need to think about is what are the systems that we're designing to figure out who gets to be a judge, if we're relying on informal networks, you're going to get a very different kind of system than if you have a more open application process that everyone can apply into, and at the same time, we need to do more to encourage people to, if we have an open system, to apply. i think one of the challenges for something like being a judge is for a lot of people you just don't think that's something that i could do. it might be something that somebody else could do. if you didn't have the fancy degree.
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if you didn't have the fancy clerkship, you might preemptively take yourself out even though you're actually extremely well-qualified, have had a great career in the law and would bring the kind of commitment to rule of law values that we want to see in our judges. part of it is really encouraging people as well to see that this is a possibility. >> can i just say that i agree with that, and i'm sorry to have jokingly interjected. in some way my point was a serious one which is that, again, the other side is very comfortable putting forth the people that they want to see on the bench and to the extent that there is that sort of self-centership, the i'm not sure i'm ready, we need to overcome that in being as courageous and encouraging the young leaders in our community to be thinking about this as a profession. i also think it's posimportant recognize not only are there things like clerkships that are, i think have some level of utility. i thinking with inside a chambers is a really interesting
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and important perspective, but certainly not to the exclusion of many other ways you can develop the kind of experience we would want to see in good judges. again, this is another place where economic barriers come into play. the number of people who have talked about sort of their financial burdens that they begin their law careers with and spend so much time digging out and the ways in which it channels them into certain professions, there's often a financial ramification for taking a position of public service in the federal judiciary or even in the state courts, and i think we should also be thinking as well about state courts as another pipeline that can potentially sort of be enhancing diversity on the bench where maybe there are sort of easier access points or more varied access points as a way to make sure we are sort of building. it will not happen overnight. it really is going to be something that's going to require a long-term investment before we're going to see the kinds of returns that are measured with where we are as a nation. >> i also wanted to pick up
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ganesh's point on encouraging people to apply. my experience helping president obama sort of pick judges, interviewing them, obviously one of the questions you ask is why are you applying to be a judge. why are you here today in particular for people where there are a lot of vacancies in their districts or what makes this moment right. and disproportionately women and people of color would say because somebody told me to app apply, somebody encouraged me to apply, a partner, a judge, encouraged me to. disproportionately white men would say i've been thinking about this since i read "to kill a mockingbird" in high school. it's this mentality and some of it is being driven by being able to dream what you see. when the judiciary is 80% white or 60% male or 60% white male you're conditioned from an early age to think about. how can we as lawyers, folks
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interested in the law, sort of do a bet joeter job of proactiv identifying people and encouraging them to apply? >> well, i think that you know, from my perspective as a nonprofit lawyer reading the report, i think the statistic was 4% of people who work in the public interest are represented in the federal judiciary, which is incredibly sad. you know, knowing that there are obviously -- there are wonderful lawyers in all sectors, but the nonprofit sector is very underrepresented and there are some amazing, amazing people who dedicate their lives to public interest work outside of the government. and so looking at that, and then, you know, looking at the community that i have here as a latina lawyer doing work that i know most of the time i'm going
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to be in the minority when it comes to wherever, what room that i sit in, the importance of bar associations i think can be really helpful here. so the work that the hispanic national bar does, the work that the hbadc, the hispanic bar association of the district of columbia does, the state bars that are affinity bars i think is really important in providing that kind of connection to professionals, to judges, to people who have done this before and have that knowledge base to a you generatinew generation of who are looking for their next steps and want to learn how to prepare themselves for potentially seeking a judgeship, learning what that process is like. what are the types of judgeships that might be interesting to me. do i want to be a magistrate judge. what is that workload like? i think that bar associations, in addition to law schools, but bar associations can be really, really helpful in filling some of ha knowled of that knowledge gap. >> i can't agree more about the
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bar association so if i think of the national bar association and also like the washington bar association, all the affinity bar associations i think are incredibly important to that recruitment effort, but i do think we have to think of all of these things as systemic, right? so we can't do kind of one-off programs, one-off panels, one-off things. i think what we need to do is have a more comprehensive and systemic way to address the issues of lack of diversity in the profession, so i think if the judiciary -- so for example, just the beginning foundation, which is a foundation of african-american article 3 judges, they have a pipeline program that's for middle school students, so we hosted at howard middle school students come and take about four weeks of classes that are all based in law, so they take little mini torts class, they do a moot court
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competition. i think those are the kinds of things that can -- we hopefully will have a day when lawyers of color are table able to say the time i thought about entering the judiciary is maybe when i did moot court when i was in high school, right? that's the kind of systemic change we have to see, and i think the report points very well to this notion that every single effort that we're engaged in, we have to raise awareness about why it's so important. that's why i thought the first question was great, but also, if we have failed up to this point, we have been going at the diversity and inclusion effort in our profession now for 50 years. if we are still at the point where we see the dismal record that is reflected in this report, we really have to sit back and ask ourselves are we starting too late? are we starting in college? that's too late, right? we need to be starting in middle school and in high school encouraging all people from
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margin marginalized communities to come into the profession and reach for the highest parts of the profession, and i think that is something that unless you do it in a systemic way starting very early, we will never be able to address this issue effectively. >> i think the other systemic piece of this that we have to think about is that this entire process in the federal judiciary is a political one. it's a political process, so as sharon was saying earlier, if you're a straight white male, you're presumed to be neutral, and if you're not, you're presumed to be an activist, and i think that that certainly is true if you look at literally huffington post did a photo spread at one point of the 30 judges that republicans had nominated by president obama, there was one straight white man and the rest were all diverse. that's not by accident. one of the reasons the fifrt circuit does not have any latino or latina judges is not for lack of trying on behalf of the obama
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administration, but it was an inability to overcome the obstruction by senators cornyn and cruz who sort of couldn't find hispanic judges that they were willing to support in that infrastructure. i think it goes on and on in terms of public defenders and plaintiffs lawyers and that whole side of the public interest lawyers, which i also think probably at least it seems to me is where a lot of lawyers of color go. they don't all go to the clerkship corporate law partner track. that's one reason why my organization is encouraging presidential candidates to make a commitment to not nominate any more corporate law partners to the federal bench during their administration. thank you, i'll take the applause. as a way of shaking it up. as a way of sort of having, trying to upend the systemic biases that are within our system, but i'm wondering if any folks here have thoughts -- i know that you're not generally political practitioners, but on
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the political side of this sor s of how we can get senators, how we can get presidential candidates, eventual ri a democratic president, how to prioritize a more diverse judiciary with diversity encompassing everything we hope it could. >> well, i certainly would hope that those who it not have the light bulb go off before now recognize, you know, how much is at stake because we talk about the fact that, you know, however much longer in days, weeks, months or years this administration lasts, we are looking at a federal judiciary that has now been stacked with people who have been appointed, who are often at a point of their career where they could be serving for 30, 40 years. we will have a trump judiciary for generations, and so i think part of this is about recognizing the need to be able to walk and chew gum at the same time. the thing that i say in other presentations is whatever issue you care about most, the federal judiciary should bes plus one that you're bringing to any party because any of those
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issues actually will run through the courts, and i think, you know, to the point that danielle was saying about sort of different perceptions of credibility with respect to the judiciary, it is interesting the extent to which i think people still while having deep, deep skepticism about the judiciary in certain areas, particularly criminal justice, still are holding onto hope that somehow the article three judges are going to save us from the worst of this administration. we have seen injunctions against some of the worst things the administration has done. again, we can't count on the courts to protect us if we haven't protected the courts. i think part of it is going to be about placing it in a higher sort of order of priority, when those from, you know, more progressive values are driving the agenda. i think it will be interesting now thatter wi we are only look a 51 vote margin for lower
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judges, that perhaps that will result in there being greater willingness to put forth the public defender or to put forth the nonprofit advocate because there isn't sort of this perception that i have to go with somebody who is the least common denominator kind of nominee. part of it really is going to be about sort of requiring the progressives to actually have the same amount of courage of their convictions that we've seen from the other side, and not be afraid to put forth nominees that have records of vancing advancing a view of the constitution that includes all of us. those who have made their careers on the backs of denigrating workers, eliminating protections for people of color, for undermining the humanity of lgbt people, so part of this is about having the courage of our convictions in a way we've seen on the other side. >> i'll just say that, you know, obviously the appointment and confirmation of judges should be a nonpartisan commitment to
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confirming excellent judges, period. that being said, because of the structure of our system, i think, you know, hopefully what -- you know, what we see and what we can work to promote is really this idea with the electorate how much power they have in the accountability, in holding elected official accountable for the composition of our courts. you do have a role to play. for latinos, we like i said before, we are over 18% of the population. if you look at school age children, we're one in five. i say this, you know, everywhere i can go, the face of the american electorate is going to get a lot more diverse. it's going to get specifically a lot more latino, but then you know pairing that, if you look at just the racial composition of the country, it's going to get much more diverse as a
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whole, and so you know, long-term we need to be able to say that we are holding our elected officials accountable for promoting our interests in all parts of the government, and that includes the judiciary, and so if we are not seeing a judiciary that's representative of us, we have to remember who is responsible for that and make sure that we are being active and civilly engaged and calling offices and raising this with our senators, raising this with you know, the administration, whatever administration that is to make sure because even if, you know, we have a new administration in that 2021, that administration's going to have a lot of work to do to catch up and get us into a different place and to institute the structural change that, you know, has been talked about here. and so i think also remembering that this is also about educating voters and educating the public about how important it is to be engaged on this particular issue. >> i want to throw out one more kind of provocative idea about
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networking in politics. i think with a lot of minority students and also sexual orientation minority students, we encourage them not to be political, right? because of these challenges around being seen as neutral, around being seen as someone who is not involved -- that's where you make connections, right? if you don't go to fundraisers, if you don't participate in door knocking, if you don't get behind candidates, no one knows who you are. so even if you are very well-qualified, you don't have the political connections. i think we need to kind of address encouraging that objectivity. i would like to jump on the band wagon in terms of discouraging law firm partners, even though a lot of the people who have been appointed to the federal judiciary who are diverse candidates, especially african-americans come from big law, but i would say maybe we should also take on a commitment to not encourage a continuation of nominees exclusively from harvard and yale and make a firm commitment to that.
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i say that as a graduate of both institutions, right? but i am tired of the entire structure of seeing nothing but ha harvard and yale graduates. let's make a firm commitment to the next democratic president appointing no judges from harvard and yale, and i can guarantee you based on the statistics that you just said we will have a much more racially ethically religiously and sexual orientation diverse pool of nominees if we stop the overrep licen -- overreliance on those two schools. that is one of our major problems we refuse to address. i love president obama, one of my favorite people in the world, but his nominees of color look just like the white nominees on paper. they went to the same schools, judicial clerkships and that means you are narrowing down to a very small category of people. i hope the next democratic president will say i refuse to follow this same play book. they will change the entire kind
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of paradigm of how they think about who's qualified for these positions. >> wow, suddenly no corporate lawyers seems very conservative, so that is -- >> something to think about. >> i actually am going to think about that. that is fascinating. i want to make sure that we have time for folks in the audience who might have questions for our delightful panel here. why don't we just go down the. >> i noticed one thing you didn't address in the issue of diversity is economic diversity. most lawyers tend to be very well off people, judging relatively poor people. how do we address that type of issue? >> it's a great question. i think it ties partly to the questions of professional diversity and what kinds of experiences people have, what kinds of backgrounds they come from. and that can be both their own personal experiences, but it
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also can be the kind of work that they do. we have lots of lawyers who do excellent work, whose primary role is to represent poor people and working class people, and we see fewer of them on the bench. there's fewer labor lawyers on the bench, fewer public defenders on the bench. there's fewer people that work at nonprofits that are focused on those communities who are on the bench. that's a place where you can spend a lot of time remitting clients, that way you can be an excellent lawyer, really understand the intricacies of the legal system. that brings a lot to the table in terms of being a judge. if you think about it, if you were a criminal defendant and every single judge in the entirety of the judicial system had spent their whole career as a prosecutor, you'd ask yourself do you really think you're going to get a fair shake, and there's a level of public legitimacy that comes from having the diversity of experiences and backgrounds. if everyone has the exact same one, it's hard for people to think they're going to get a fair shake. i think that's true when we
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think about how polarizeded courts are becoming as well. i think what we want is to really preserve the legitimacy of our courts and to have a system of strong rule of law, and that means people of lots of different backgrounds with lots of different experiences. that gets to the economic piece of it as well. >> great, why don't we go to the next question. >> just a private citizen. i'd just like to ask what role of building the alliance or alliance for justice, you know, the organization building the bench, these organizations are for liberal judges, what roles do they have? >> i won't speak on behalf of alliance for justice, but i know that alliance for justice and the american constitution society are sort of doing an aggressive job of reaching out, building their networks and trying to identify candidates to
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potentially be nominated by the next democratic president. i think that in some ways they're formalizing this very informal sense of encouraging people to run or to throw their hat in to become a judge, and i think that part of this is that if we rely on the current infrastructure, it is, it's very circular. you know, you pick up the phone, and you ask a judge who do you think might be good to serve on your court? and they're going to think bank to former law clerks of theirs or that they've seen in the court or they think about the corporate partners or the prosecutors who they see in their court often and they don't necessarily think about the people who are doing a lot of the other work, who don't share the same social circles. i think that acs has been doing this work for some time. i'm a little bit biased being on the board of advisers there, but the alliance for justice as well, and they're partnering with some other organizations to sort of build these networks and sort of start planning ahead so that when there are vacancies
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coming up, we're not sort of looking around for the first time saying oh, do you want to do it? how about you? that we've sort of been grooming people and hopefully it's a longer term project than just looking for immediate vacancies, but that's a great question. >> so, i have a question about, as we seek equity and justice by diversifying the judiciary, how do you think it plays out when you're kind of asking diverse people to uphold a system that, itself, is systemically racist and discriminatory, so if we're seeking equity, why does it -- why should it result from a more diverse judiciary instead of overhauling the entire system? >> that's such a great question, and honestly, it's a question that when i tried to encourage students, for example, to get clerkships, they say, that would require me to participate in a system that i feel is fundamentally unjust in a racist system. so you're asking me to become a part of that system. i think what i always say is, you know, there is no way around
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it, but through it, right? it is unlikely that you are going to build structural change completely from the outside of existing institutions. right? you have to understand the existing institutions. you have to be willing to participate in those institutions. understand them and through that create more avenues for structural change. right? but there is -- it is very unlikely that without understanding our current institutions, without -- and i'm not saying that you commit to doing that for the rest of your career, but i do think that there is a lot to be learned from that system, and we all have our roles to play. right? while some people who crusaders for justice, like judge damon keith who recently passed away, you know, he was a crusader for justice who was a federal judge for most of his career. i give them examples of people like constance baker motley and others like justice sotomayor who are truly people who are interested in the progress and
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civil rights of all people but they are doing it from inside the system and that is completely possible. now, your classmates may be doing it from other places more like what you see maybe on this stage doing, but there's a role for people who are very interested in the kind of structural overhaul of our, you know, of this system to play a role inside the system. >> and i think in many ways sort of the same -- the same kind of critique and argument can be made about going into government lawyering positions as well, i mean, i know that the justice department that i joined in 2010 was a justice department that was defending don't ask/don't tell, defending the defense of marriage act, was -- and i had to sort of make that choice when i was leaving an lgbt advocacy organization, was i prepared to kind of put that part of my lawyering life sort of on the shelf knowing that there was other work that i would be able to do within that role? and as it turned out, you know, the right people in the right place at the right time can
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often change institutions in really radical and dramatic ways but it does -- it does require sort of a personal decision about sort of where your lines are and what gives you value and satisfaction in terms of how you're using your professional life, so, and to the extent certainly that positions of lawyering within the government is a different kind of pipeline to judiciary as well, i would say
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you a better advocate on the outside. if you're in government, you'll have a better sense of how advocates think -- if it's the kind of thing you have skill sets and interests in both, you don't have to see these of a choice you can only do one or another, there are a lot of examples of people who have done both. >> hi. i'm a student from the university of pennsylvania. so you guys mentioned that the lack of legal die viversity ando the lack of diversity on judicial panels is a systemic issue. and you mentioned the program with middle school students. that still seems like a one-off solution, in my opinion, so what are some ways that governments
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like local governments or state governments can be accountable and try to affect change in this area? >> i mean, i think, so, as i look at that issue, to me, it comes down to much bigger changes about our society and access to education. access to services that are necessary, right, to live a healthy, productive, life. so, part of it is that i think that a lot of our students, a lot of, you know, minority students are not getting access to quality education in the way that sets them up for the pipelines of these different types of professions. and so, yes, maybe a one-off program just focus on a middle school here isn't sufficient for the whole entirety, but part of it, we're looking at the issue of who is getting the access to the type of information that's
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needed to know, okay, if i want to be a lawyer, these are the types of things that i need to do, or even the concept of do i want to be a lawyer and when does that come in? you know, i've heard talks where justice sotomayor talks, discusses how she didn't really see herself in the role that she's in today almost ever until it happened. right? so if you don't see diverse judges, if you don't see diverse lawyers, it's going to be very hard for you, young -- early on to see yourself in that profession. for me, i didn't need a lawyer until i had already graduated from college. i didn't see myself as a lawyer until some time after that. and so, and when i met those lawyers, i think i met, like, one lawyer of color so by the time i went to law school, i knew one lawyer of color. and that was it. and so i think part of it as we increase diversity in the profession, it's about access to
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education so you can have those fundamental building blocks to go on to whatever profession it is that you want to do, in this case, the legal one, but also, you know, increasing diversity in the legal field so that people can see in your commun y community, in your own community, where you live, that there are actually lawyers of color. that there are actually judges of color. and that that's important. >> why don't we take one last question here. >> so it was mentioned that we'll have trump judiciary for generations. how do you see this impacting the way social justice is executed in the courts and behalf of organizations that focus on impact litigation, and just how the following generations are going to use the courts to achieve change. >> oh, oh, i can answer this one. so, you know, we've talked about this a lot. whether it's maldev or land of
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legal or other organizations, you know, we obviously know that with an increasing number of federal judges being, you know, confirmed by this president that is something that needs to be taken into account. now, look, not all of these young you judges are necessarily cut from the same cloth. there are a bucket of the judges that are the judges we might have gotten under any other administration and then there are sort of the extraspecial ones who have been sort of appointed not despite but because of their records of vurulent anti-worker soe eer ad. we have people with troubling records around issues of race and immigration. so they're going to be in the mix, frankly, you know, we've always sort of known that they were out there from any judge, so i think we've always sort of had to be aware in moving forward with cases that you could always potentially wind up with a judge, for example, there's one judge in the northern district of texas, you know, who is not a trump appointee but became sort of the home-field advantage for
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everyone who wanted to go and strike down an obama administration policy that enhanced equity or diversity in our country. so, i think, you know, in that sense, there's going to be sort of strategic calculations that need to go into litigation, but the other thing that i say to people, though, is we need to remember that judges live in communities. right? and so to the extent that part of the work that we are all doing is creating social norms and expectations about what the rule of law should mean, that inherently, in my view, will create some amount, however subconscious of a check on what any individual judge prepares themselves to do knowing they have to be in their church or in their grocery store or at their little league game, you know, the next week. right? so i think part of what we need to do is remember how important it is to doe mand faemand fairn integrity within the courts but don't assume those are ecosystems that don't react with the rest of the country and make sure we're creating an environment of political and social accountability because
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that is the thing that i fear may be the best tool that we have and in some ways gives me hope that it's the best tool that we have to check what might otherwise be this potential to engage in really ideological excess by individuals who are appointed in an environment that suggested that no matter how, you know, troubling your record may have been, you are now sort of sitting in the seat with the robe and get to do whatever you want. we have to create an environment in which there are other social norms that check those excesses, impulses. >> the other thing i'd add because i think your question is exactly right, what are we going to do, i think it starts with not accepting the status quo. right? so i think that from our perspective at demand justice, i know some other groups as well, republicans stole a supreme court seat from president obama. and they gave it to neil gorsuch. and then republicans rammed through brett kavanaugh without a fair process. the number nine on the supreme
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court is not a magic number. it's been change ed seven times before. we think we need add to two seats. some people say four seats. some people have very different plans for how to change the supreme court. these are the kinds of things we can't resign ourselves to the fact that we're going to have trump i trump's judiciary, in addition to stealing the supreme court seat from president obama, blocked him from appointing 50 or 60 other judges in the last 2 years. we should look to expand the lower courts as well because that's the way we're going to get greater balance in the shorter term in addition to the sort of the step-by-step measures. with that, i don't know if anybody has any parting thoughts, i honestly don't know, i suspect we've already run over our time. but i did want to give folks a chance if they had any parting thoughts from anything that they didn't get a chance to say in response to a question or otherwise. if not, thanks to the center for american progress for this opportunity. and for this incredibly
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important report. i know that there's a follow-on report on professional diversity coming which is, was part of the conversation here and it will be an important part of any conversation on diversiifying or courts so look toward forward tg that report. look forward to seeing all of you back here for the panel i'm sure will ensue to go with that report. thanks to all of you for joining us. have a nice day. [ applause ] in primetime on c-span3, a discussion with veteran secretary robert wilkie on improvements at the department of veterans affairs. watch the heritage foundation
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conversation tonight at 8:00 eastern. following that at 9:00, a u.s. house hearing in chicago on gun violence. the energy and commerce subcommittee went to chicago to learn more about the cause of gun violence there and its impact on the community. lawmakers heard from doctors, a funeral homeowner, and a woman who lost both her son and broth tore gun violence. we'll have that tonight at 9:00 p.m. eastern here on c-span3. tuesday the senate, commerce, science and transportation committee hearing examining the boeing 737 max following 2 international accidents last year. testifying before the committee is boeing's president and ceo dennis muilenburg and vice president and chief engineer john hamilton. watch live tuesday at 10:00 a.m. eastern on c-span3. online at or listen live wherever you are with the free c-span radio app. the u.s. supreme court's
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considering whether a unanimous verdict is constitutionally required in federal and state criminal cases. justices heard oral argument in the case of ramos versus louisiana. a state jury found evangelisto ramos guilty on second-degree murder on a vote of 10-2. at the time, louisiana did not require unanimous juries, however, it does now but the law does not apply retroactively. here's the supreme court oral argument from earlier this month. >> we'll hear argument next in case 185924. ramos versus louisiana. mr. fisher. >> mr. chief justice, may it please the court, last term in tims against indiana, this court reaffirmed the well settled rule that incorporated provisions of the bill of rights apply the same way to the states as they apply to the federal government. taking that rule as a given, the state


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