This week, we attended Alliance for Justice’s Brown Bag lunch, “Advancing Justice through the Judicial Selection Process.” Alliance for Justice (AFJ) is an organization that investigates and fosters public participation in the federal judicial selection process. The two panelists, Emily Chatterjee, Policy Director at the National Asian Pacific American Bar Association (NAPABA) and Michelle Schwartz, Director of Justice Programs at AFJ, have extensive experience working on the judicial nominations process. We both were generally interested in judicial nominations (Beth used to be an intern for AFJ!), but attending this event really crystallized for us how much the judicial nominations process impacts our everyday lives.
To us, the judicial nominations process seemed like a relatively simple (if unexciting) procedure. The President nominates potential district and circuit court judges. Then, the candidates must be voted on by the Senate Judiciary Committee and then by the entire Senate. If a majority of each body votes in favor of the nominee, the candidate is approved. Federal judges are appointed for life, and once they are approved, they only leave office if they resign or if they are impeached and removed.
We underestimated the importance of the judicial nomination and selection process because the process seemed so removed from our everyday lives. However, the federal court system’s sphere of influence affects the laws the govern our society and our lives. The federal courts are divided into the Supreme Court, circuit courts, and district courts. While the Supreme Court handles less than 100 cases a year, the circuit courts of appeals and district courts handle approximately 60,000 cases and 380,000 cases a year respectively. And, with lifetime tenure, federal judges have the ability to interpret laws in ways that strengthen or diminish their intended effects. As a result, the professional diversity of judges is particularly important in capturing a broad range of life experiences that allow them to make decisions that reflect the backgrounds of all people. AFJ states: “A truly diverse judiciary is one that not only reflects the gender, ethnic, sexual orientation, and racial diversity of the nation, but is also comprised of judges who have been advocates for clients across the socio-economic spectrum, seeking justice on behalf of everyday Americans. As this report details, the federal judiciary is currently lacking in judges with experience (a) working for public interest organizations; (b) as public defenders or indigent criminal defense attorneys; and (c) representing individual clients—like employees or consumers or personal injury plaintiffs—in private practice.”
For example, in examining the upcoming Burwell v. Hobby Lobby Stores, Inc. decision, it becomes critical for justices on the Supreme Court to understand how important contraceptive coverage is to employees. Without diverse perspectives, the Court fails to understand the multifaceted character of our nation.
Another issue that the federal court system is currently facing is the startling number of vacancies in district and circuit courts. When new judges are not confirmed, fewer judges are required to handle larger caseloads and thus are forced to delay trials. Accordingly, “persistent vacancies increase the length of time that litigants and businesses wait for their day in court, create pressures that ‘robotize’ justice, and increase case backlogs that will perpetuate delays for years to come. These pressures, if left unchecked, inevitably will alter the delivery and quality of justice and erode public confidence in our federal judicial system.” AFJ currently lists 84 vacancies in district and circuit courts as of June 17, 2014. This deliberate approach to obstruct justice by members of Congress not only prohibits qualified nominees from serving as judges, but also hurts our justice system as a whole.
In 2011, Judge Edward Chen became the first Asian American district court judge in San Francisco – but only after a grueling nomination process of nearly two years. Judge Chen’s confirmation process was the longest of any during President Obama’s term despite having substantial experience as a magistrate judge and bipartisan support from the local legal community. The reason for this delay? Chen’s “ACLU chromosome.” Senator Jeff Sessions, the highest-ranking Republican Senator on the Judiciary Committee, accused Chen of being “outside the mainstream” and therefore a biased candidate due to his fifteen year career with the American Civil Liberties Union. Another senator explained that his opposition to Judge Chen’s nomination was based on Chen’s judicial philosophy, and that Chen’s tendency for empathy is not consistent with a judge’s duty to “decide cases based on the facts and the law, and nothing else.”
But as we learned at the AFJ brown bag, chasing an “objective” standard is misleading. Contrary to those who would claim impartiality, all judges have different life experiences that influence how they interpret the world. When some of those experiences (like working at the ACLU) are considered too partial, the judiciary as a whole suffers because it is not able to represent the realities of the American public. In fact, one panelist at the event remarked that Judge Chen became more determined to continue with the confirmation process because of the obstruction he experienced. He believed that the entire process proved how important it was that someone who had worked for the ACLU could become a federal judge.
Both panelists agreed that Obama’s judicial legacy will be characterized by his strides in diversifying the court. So far, he has tremendously increased the number of women, LGBTQ people, and people of color on the court. Amid fervent opposition, the President has already transformed the makeup of the courts: for the first time, the Supreme Court has three female justices. Yet as the confirmation hearing of Judge Chen has shown, conservatives in the Senate are likely to try to impede any presidential effort to nominate federal judges to the bench.
Last year, Democrats in the Senate voted to change the number of senators required to confirm presidential nominees, which has expedited the judicial nomination process. Filibusters can no longer prevent judges from being confirmed and a simply majority, instead of 60 votes, is now sufficient for confirmation. This much-needed change has enabled the Obama administration to nominate and confirm judges to federal courts without being subject to obstructionism. One of the panelists pointed out that this rule change emerged as a result of grassroots organizations calling on members of Congress to resolve the issue of vacancies in district and circuit courts. These efforts demonstrate the collective power we all have to ignite change at a community level, and ultimately on a national level.
What can you do to get more involved? AFJ’s website lists ways to take action.