Diversifying the Socioeconomic Dynamics of the Bench

The Bencher—March/April 2017

By Michael Brandon Lopez, Esquire

The influential French Renaissance writer Michel de Montaigne observed in his essay “Of the Resemblance of Children to their Fathers” that, “[t]here never was in the world two opinions alike, no more than two hairs or two grains; the most universal quality is diversity.” Diversity abounds, whether we appreciate it or not, and it is important that our judicial bench reflects the diversity of the world in which it sits.

To be sure, the federal courts—both district and courts of appeal—have come a long way in reflecting certain aspects of what is generally considered “diversity” (e.g., race, gender, sexual orientation) since President Franklin Roosevelt’s appointment of William Henry Hastie in 1937, the first black judge to the federal bench. Since then, and certainly under President Barack Obama’s tenure, the bench has become more visibly diverse with a greater number of women and ethnic minorities being appointed to the bench.

Even though such efforts to diversify the bench are encouraging, there is a persistent lack of other forms of diversity, such as economic diversity, that are not always readily apparent. For example, although Obama appointed a considerable number of women and ethnic minorities to the bench, 63 percent of his “diverse” appointees were worth more than $1 million (with 75 percent of his white, male appointees falling into that same category). Indeed if one were to survey our current Supreme Court, one might easily come away with the idea that lawyers in the United States come from only two institutions of legal learning—Harvard and Yale law schools. Those justices in turn were typically appointed to the federal bench following the usual route—a high-profile clerkship, and a position in government or academia.

Such a singular pipeline for judges, however, discounts the enormous diversity that is present in the United States. Indeed, the vast majority of lawyers in this country are solo or small-firm practitioners, and most of them do not clerk in high-profile federal clerkships or serve as law professors. Moreover, the majority of lawyers do not attend Harvard or Yale law schools. More problematic is a potentially limited pipeline for judgeships that does not allow for geographic and economic diversity or diversity in experience. How many of our current federal judges have served in legal positions dedicated to the poor—a group that is well-acknowledged to be chronically underserved by the legal profession? How many of our current judges came from professions as public defenders or earned mediocre salaries as legal aid attorneys prior to their elevation onto the bench? And for recent law graduates, how many judicial nominees are still struggling to pay their outstanding student loan debt?

Our Nation’s first black Supreme Court justice, Thurgood Marshall, attended Howard University School of Law, did not clerk after graduating, and instead opened his own private law practice in Baltimore, Maryland. Working with the NAACP, and witnessing firsthand the discrimination against persons of color, Marshall understood the numerous challenges faced by ethnic minorities in our country, and of the poor. His sensitivity and attentiveness to these issues is evident in his jurisprudence. Moreover, if sources are accurate, he remained a relatively poor justice during his time on the bench.

Yet there are other forms of diversity that can help shape a fully rounded understanding of the law as a human endeavor. Since the retirement of Justice John Paul Stevens, the Supreme Court is without a member who has experienced active wartime military service. Indeed Stevens background may have given him an important and incisive understanding of military expediency, Constitutional restraints on executive power, and the importance of adhering to international legal obligations, for example, in the seminal case of Hamdan v. Rumsfeld—for which only Stevens’ opinion commanded a majority of the court.

Joining Stevens in wartime experience was Chief Justice Earl Warren, who served in the Great War. Equally notable, and rare, however, was Warren’s past political service in the people’s branch of government. Elected by popular vote of the people of California three times, Warren served as governor prior to his appointment to the Supreme Court. As an unelected branch of federal government, it is especially important that there be judges who understand what it means to serve—in an elected capacity—the people, since in that position one is beholden to them. Of course, as Warren’s tenure on the court demonstrates, that does not mean shying away from vindicating public rights and liberty where the law requires it, even when it might be contrary to majority opinion. Finally, in an additional aspect of diversity, despite the excellent reputation of his alma mater, Warren remains the only Berkeley Law School graduate to have served on the Supreme Court.

Of course, diverse judicial appointments are not only necessary to reflect the demographics of society; they are also necessary to bring much-needed shifts within the judicial institution itself. When Sandra Day O’Connor—who also served as a popular political representative in the Arizona legislature—joined the Supreme Court, she was the first woman to do so, and one practical result was to end the tradition of the justices referring to one another as “Mr. Justice” in their judicial pronouncements and on their door plaques. Such cultural shifts are crucial to ensuring that our judicial institutions remain responsive to the culture—in this case the right to an equal opportunity to serve based solely upon ability and competence—in which they exist.

These are of course just highlights of the multiple kinds of diversity that exist, but they are crucial to ensuring a bench of judicial officers who can authentically empathize with, and understand, the full experience of humanity, because law is ultimately about the ordering of human life. Such experience cannot only be formed by prior experience in big law, federal clerkships, and impressive government appointments. Our judges should be drawn from the full and vibrant spectrum of law and life, whether they come from a solo or small firm practice, a rural country township, have never clerked, have lived one life as an aspiring musician or writer prior to turning to a life of the law, who have lived and worked in the reality of so many of our country (i.e. from paycheck to paycheck), who have dedicated their life to the poor, or defending the scorned. Until we expand our concepts of diversity, especially economic diversity, we will never have a bench that is reflective of the great and immense variety of humanity of the nation in which we work and live.

Michael Brandon Lopez, Esquire, is senior legal associate at Integreon in Fargo, North Dakota. He was a 2014 Pegasus Scholar, and is treasurer of the Ronald N. Davies AIC.

© 2017 Michael Brandon Lopez, Esq. This article was originally published in the March/April 2017 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.