Volume 2017, No. 2

Table of Contents

Articles

Filing the Seventh Circuit Vacancies

Carl Tobias

Williams Chair in Law, University of Richmond

In January 2016, President Barack Obama nominated Donald Schott and Myra Selby for empty judicial positions on the United States Court of Appeals for the Seventh Circuit. Schott is a very talented practitioner, who has efficaciously served as a well-respected partner of a major law firm for greater than thirty years. For instance, Schott has professionally worked on numerous complicated federal suits and a plethora of complex actions, many of which efforts concluded with alternative dispute resolution. Selby is concomitantly an exceptional lawyer, who has compiled a distinguished record in the public and private sectors. For example, the compelling prospect was the first African American to secure partnership with a substantial Indianapolis law firm, and the highly competent pick eventually became the first African-American and female justice on the Indiana Supreme Court.

Majority Rule and the Future of Judicial Selection

Michael J. Gerhardt & Richard W. Painter

Michael J. Gerhardt – Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina in Chapel Hill
Richard W. Painter – S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School

2016 and 2017 were historic years for judicial selection. It began on February 12, 2016 with the unexpected death of the Supreme Court’s most senior justice and most impassioned conservative, Justice Antonin Scalia. In response, Senate Majority Leader Mitch McConnell (R-KY) announced for the first time ever the refusal not to consider a nomination made by the president before it was even made. To many people’s surprise, Senator McConnell then successfully coordinated the longest delay of a Supreme Court nomination in history, blocking any Senate action on President Barack Obama’s nomination of Judge Merrick Garland of the United States Court of Appeals for the District of Columbia to take the vacated Supreme Court seat. By the end of 2016, Senator McConnell and other Republican leaders in the Senate blocked fifty-nine of President Obama’s nominees to the federal bench from receiving a confirmation vote in the Senate, thirty of whom had cleared the Senate Judiciary Committee. As a result of this obstruction, President Donald J. Trump, who won the presidential election in November 2016, had the prospect upon entering office of being able to fill more than 100 lower court nominations, as well as at least one Supreme Court nomination.

Is There Really a Diversity Conundrum?

Theresa M. Beiner

Associate Dean for Academic Affairs, Nadine Baum Distinguished Professor of Law, University of Arkansas at Little Rock, William H. Bowen School of Law

There is consistent agreement among scholars that diversity on the federal bench is a good thing. However, there is some disagreement on the rationale for encouraging this diversity. While some political scientists have focused their research on differences in judges’ voting patterns based on each judge’s personal characteristics—such as race or sex—others have criticized this approach as a justification for diversifying the bench. While most studies of voting patterns of state and federal judges find no difference or inconsistencies in differences in voting patterns based on these characteristics, there are areas of the law in which they appear to make a difference in judges’ approaches, at least in certain types of cases.

 This Article begins by canvassing some of the common arguments for diversifying the bench. It also addresses the current demographics of the federal bench, which has become increasingly diverse, thanks in large part to the judicial appointments of President Barack Obama and earlier Democratic presidents. It then discusses the few areas of the law in which studies have shown some differences in outcomes correlating with the race or gender of the judge. Finally, this Article attempts to address the tension that results from focusing on differences in case outcomes based on the race or sex of the judge in a judicial system that aspires to impartiality.

Cooperative Judicial Nomination During the Obama Administration

David Fontana

Associate Professor of Law, George Washington University School of Law

During his eight years in office, President Barack Obama changed the face of the federal judiciary. A total of 331 of his federal judicial nominees were confirmed, a larger number (by one) than President George W. Bush had confirmed during his eight year term. At the time that Donald J. Trump became the President of the United States in January of 2017, approximately two-thirds of federal district court judges and approximately half of federal circuit judges had been nominated by Democratic presidents. Several Obama nominees have the promise to be major voices on the federal bench for decades to come. President Obama successfully nominated two justices to the Supreme Court, both of whom (in different ways) have the potential to contribute to the liberal jurisprudential cause for many years to come. President Obama’s federal judicial nominees were the most diverse along many dimensions of any president in the history of the United States. Some of these accomplishments were made possible by the controversial decision by Senate Democrats in 2013 to abolish the filibuster for lower court nominations.

How Political Ideology Undermines Racial and Gender Diversity in Federal Judicial Selection: The Prospects for Diversity in the Trump Years

Kevin R. Johnson

Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California at Davis School of Law; A.B., University of California, Berkeley; J.D., Harvard University

This Essay considers the relationship between efforts to increase the racial and gender diversity of the federal judiciary and the contemporary contentiousness of the Senate judicial confirmation process. Part I briefly evaluates the benefits of a diverse federal judiciary and summarizes the relatively successful efforts of President Obama—the nation’s first African-American president—to increase racial and gender diversity among the nation’s federal judges. Part II analyzes the diversity costs of an ideologically-driven confirmation process in the United States Senate. Part III suggests that President Trump’s suspicions that racial minorities are naturally biased do not bode well in terms of his commitment to diversity.

Diversity, Qualification, and Ideology: How Female and Minority Judges Have Changed, or Not Changed, Over Time

Maya Sen

Assistant Professor, John F. Kennedy School of Government, Harvard University

Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.

A Tale of Two Justices: Branders, Marshall, and Federal Court Judicial Diversity

Linda Sheryl Greene

Evjue Bascom Professor, University of Wisconsin Law School; A.B. California State University Long Beach; J.D. University of California Berkeley (Boalt Hall)

In this Article, I will focus on the appointment of Louis D. Brandeis to the United States Supreme Court as a significant landmark in the history of the federal judiciary. I explore this topic initially through a comparison of President Woodrow Wilson’s 1916 appointment of Louis Brandeis with President Lyndon Johnson’s appointment of Thurgood Marshall as a symbolic opening of the federal bench to African-American lawyers. Both Brandeis and Marshall were well-known nationally prior to their appointments, with Brandeis engaged in significant domestic and international activities, including his embrace of Zionism, and Marshall engaged in almost a four-decade long assault on racial segregation and Plessy v. Ferguson. Perhaps not ironically, both endured abnormally long waits between nomination and confirmation while their opponents raised substantive objections that thinly veiled the opposition to the placement of a member of their respective groups on the highest court.