S7 E5: Building a Diverse Judiciary

Episode Transcript

Kanya Bennett: Welcome to Pod for the Cause, the official podcast of the Leadership Conference on Civil and Human Rights and the Leadership Conference Education Fund, where we take on the critical civil and human rights issues of our day as we work to save our democracy. I’m your host, Kanya Bennett, coming to you from our nation’s capital, Washington, D. C. Today, on Pod For the Cause, we will talk about the importance of a diverse judiciary. We will consider how and why we are advocating for meaningful demographic and professional diversity among our nation’s judges. For this conversation, we are joined by three legal triple threats. They litigate, they draft policy, and they advocate for change. Let me welcome Lourdes Rosado, the president and general counsel for LatinoJustice PRLDEF. Welcome, Lourdes.

Lourdes Rosado: Thank you, Kanya. Very happy to be here.

Kanya Bennett: We are also joined by Tona Boyd, the Legal Defense Fund associate director- counsel. Hi, Tona. Welcome.

Tona Boyd: Thank you, Kanya, for having me.

Kanya Bennett: And we have my former ACLU colleague, Claudia Center, with us. Claudia is the legal director for the Disability Rights Education and Defense Fund. Welcome, Claudia.

Claudia Center: Thank you. Glad to be here.

Kanya Bennett: Before I turn to our guests, let me offer some framing for our conversation. For our courts to work for all of us, our judges should reflect and represent the diversity of our society, but for too long, those who sit on the bench have been overwhelmingly White, straight, and male. More times than not, they’ve been corporate lawyers and prosecutors. Federal courts in particular have been slow to include judges of color, women, LGBTQ people, people with disabilities, and judges from varied legal backgrounds. However, recent judicial appointments at the federal level are changing that. We have seen some historic appointments in just the last few years with judges desegregating courts that have never had a judge of color before. We are seeing former public defenders and civil rights lawyers go to the bench. And we must build upon the success. So, let me now turn to our guests to talk about judicial diversity and why diversity on the bench leads to fair decisions, increased confidence in our legal system, and ultimately a stronger democracy. Lourdes, let me start with you. You are the president and general counsel of LatinoJustice PRLDEF as I introduced you. And you are used to challenging laws, using laws to create a more just and equitable society in the fight for racial justice and community transformation. As we kick off this conversation, I want to start on a celebratory note. This year marks the 15- year anniversary of Justice Sonia Sotomayor’s appointment to the U. S. Supreme Court in 2009, making her the first Latina and the third woman to serve on the court. Can you talk to us about what Justice Sotomayor’s confirmation signaled in terms of opportunities for Latinos and other people of color? And how did this move the needle in the pursuit of judicial diversity?

Lourdes Rosado: Justice Sotomayor confirmation was indeed a historic one. And it’s particularly meaningful for the Latinx community because for the first time, it brought the Latino community into the most exclusive chambers of the highest court of our country. It was also very meaningful to us at LatinoJustice PRLDEF because Justice Sotomayor was a longtime board member on the Puerto Rican Legal Defense and Education Fund, LatinoJustice PRLDEF. In fact, my colleagues recall when Jeff Sessions, then a senator on the Senate Judiciary Committee, was opposing Justice Sotomayor’s confirmation because she was part of a member of a, ” radical group,” that was referring to us at LatinoJustice PRLDEF. And our founder, Cesar Perales, who’s then also president in G. C., went to Washington to testify and talk about the work of our organization, basically saying, ” Well, if fighting for justice and access for opportunities for our most marginalized members of our community is radical, so be it. We’re in for it.” But what was so meaningful about Justice Sotomayor’s appointment is that it reflects something that all of our organizations have been saying and fighting for is that for our communities, particularly communities of color, to have faith in the courts, for the courts to have legitimacy, we need to see ourselves reflected in those courts. We need to see people who look like us and also people who have our lived experiences as well, people who know what it’s like to be a first generation college goer, children of immigrants to grow up in communities and neighborhoods where Black and Brown children were stopped by the police because of their color. Those lived experiences need to be represented in the courts for there to truly to be justice. And it’s not just about ethnicity and race. It’s also about the experiences professionally that people bring to the courts. That’s why we were also excited about Judge Brown Jackson’s appointment. She was a federal public defender. That was a first. We need courts that don’t just have former prosecutors, which is the profession overwhelmingly represented on our bench. We need people who are former public defenders like Justice Brown Jackson. We need people who do civil legal services, who do civil liberties and civil rights litigation to be on the courts.

Kanya Bennett: Tona, you are now at LDF, the country’s first and foremost civil and human rights law firm, but just a year ago, you were a senior member of the judicial nominations team at the Biden White House where you supported the nomination and confirmation of federal judicial nominees, including Supreme Court nominee Ketanji Brown Jackson. And we all know this is a story that ends well as we now have Justice Jackson, the first Black woman to serve on the U. S. Supreme Court. In addition to Justice Jackson, President Biden has nominated a historic number of highly qualified federal judges of unprecedented diversity. We really thank you for this work. So, talk to us about the success, including what it looks like in terms of numbers and why it matters to have a diverse judiciary.

Tona Boyd: So, Kanya, the conversation around the makeup of our courts and what communities have pathways to the bench couldn’t be more important. I was very proud to join the White House Counsel’s office in January 2021 as part of the inaugural team tasked with vetting, recommending, and preparing for confirmation President Biden’s judicial nominees. I think it’s important to note that prior to taking office, White House counsel Dana Remus sent a letter to the Democratic caucus in the Senate and made clear the administration’s commitment to diversify the federal judiciary, stating in part, and I’m quoting here from that letter, ” President- elect Biden is eager to nominate individuals who reflect the best of America and who look like America. We therefore ask that you propose talented individuals who would bring to these critically important roles a wide range of life and professional experiences, including those based on their race, ethnicity, national origin, gender, sexual orientation, gender identity, religion, veteran status, and disability.” So, with that opening, it was transparent and clear that people who may never have seen themselves in the judiciary not only had a pathway, but were central to the work of the administration. And so, I do think it’s important to lift up the amazing numbers of diversity that this administration has advanced, but before I do that, I want to pay homage to LDF’S history when it comes to diversifying the federal judiciary. Our founder, Thurgood Marshall, was the very first Black person to serve on the United States Supreme Court. And the legendary Constance Baker Motley, who was a key architect and strategist of the Brown v. Board of Education litigation, which of course eliminated racial apartheid in this country, was the first Black woman elevated to the federal bench. And I think that’s noteworthy, especially given we are in the 70th anniversary year of Brown v. Board of Education. So, to go back to this administration’s accomplishments, we’ve come such a long way from having the first Black person to serve on the Supreme Court and the first Black woman elevated to the federal judiciary. So, I want to cite some stats that the Alliance for Justice just put out in its 2023 report on the federal judiciary. Of the 166 judges confirmed over the past three years, 108 are women, 78 are women of color, 37 have served as public defenders, and 24 have practiced civil rights law. And notably, President Biden has appointed more Black women to circuit courts than every other prior president in the history of our nation combined. I think that is a breathtaking statistic. And it marks very important strides in terms of diversifying our judiciary.

Kanya Bennett: Claudia, when we talk about judicial diversity, it is easy to think about diversity only in the context of race and ethnicity. And with a number of historic firsts for Black and Brown judges just achieved in recent years, one could argue to keep the advocacy focused here. However, we know that we must think about diversity more broadly if we were to realize a bench that is truly reflective of its members of society. At Disability Rights Education and Defense Fund, where you advance the civil and human rights of people with disabilities through legal policy and other advocacy, you are asking that we also think about disability status when it comes to a diverse bench. Can you talk to us about the importance of thinking about diversity in this way, as well as how identifying as a person with a disability often intersects with other identities we need represented on the bench?

Claudia Center: Sure. And a lot of my comments are going to echo what Lourdes just said. And I was nodding along to her comments. Disability representation on the federal judiciary is incredibly important. There are very few federal judges on the bench who identify as having a disability. And that representation is important because it promotes a fair and equal judiciary. It helps ensure that laws are enforced and interpreted with an understanding of the lived experiences of people with disabilities. Disabled judges provide role models for law students or college students with disabilities. And it assures litigants that people with disabilities are treated equally. And we also want judges who have represented or advocated for the interests of people with disabilities, so that professional diversity as well. And when we have candidates with both lived experiences that add diversity and who have advocated for the rights of people, that’s what we get very excited about. Lourdes talked about Sonia Sotomayor. Justice Sotomayor also has a disability that she is public about, type 1 diabetes. And I think having a person of color with a disability, we only have, I think, three federal judges right now who match that profile out of more than 870. It’s incredibly important. And I’m so glad for Justice Sotomayor, as well as Justice Brown Jackson, who has written some of the best disability rights opinions out there.

Kanya Bennett: Thank you, Claudia. So, Lourdes, we have talked about the importance of a diverse judiciary and what diversity should look like in this context. We have also acknowledged that the current administration has a commitment here, but we know that we have more work to do. And this includes increasing the number of Latinx judges. So, what are you doing, what is LatinoJustice doing, to build a pipeline to the bench for Latinos?

Lourdes Rosado: Building the pipeline has been a main priority of LatinoJustice since we started out in the 1970s. It started with our founders offering free LSAT prep courses because a lot of people in our community couldn’t afford to go to those commercial prep courses that cost money. I remember I studied for all my standardized tests with a book that I got from the library. And so, we’ve been very committed to making sure that more Latino students as well as Black students and Asian students and students from all races have the opportunity to become lawyers, not only because being a lawyer is a way for economic mobility for a family, but we all know that being a lawyer is a pathway to great positions of power and leadership in our society, including becoming a judge. So, now, we have at LatinoJustice, a full continuum of leadership development programs starting early on in high school where we pair students with lawyers as mentors. We have LAWBound, a week- long boot camps where we bring in prospective law school applicants to meet with law school admissions folks, financial aid people, do moot court practices, do moot classes, law school classes, and experience different panels of lawyers talking about their professional experiences. And we continue on to assist law students as law students and as young associates going out into the world. And we’ve, at this point, assisted more than 10,000 young people on their journey to become lawyers. And the idea is that, of course, we want more lawyers in the trenches with us fighting for civil rights, but we believe that having more lawyers of color in every segment of the legal profession, including the judiciary, is essential for creating a more just and equitable society.

Kanya Bennett: Absolutely, Lourdes. Let me ask you the same question, Claudia. So, the American Bar Association points to many reasons for the low numbers of people with disabilities on the bench. They point to implicit and explicit bias. They talk about pipeline issues. They talk about stigma with disclosure and a lack of data. There may, in fact, be more people with disabilities on the bench, but we are not collecting data and we do not know. How do we get more people with disabilities on the bench? And what about judges who may have what are considered invisible identities? How do we better acknowledge this part of a person’s identity?

Claudia Center: The disability community is also advocating to expand the pipeline and to support people with disabilities who want to go to college, want to go to law school, want to become lawyers. We have fought for decades to eliminate barriers to standardized tests for disabled test takers. We’ve reformed the way that the LSAT has been administered with respect to testing accommodations. We’re working on the same types of issues with bar exams. We’re working to make sure that law schools are inclusive. We have a National Disabled Law Student Association that helps with peer support and keeping people’s hopes and focus going during the hard years of law school. We have mentorship programs as well. We have a Disability Rights Bar Association. We have a new bar association for lawyers with disabilities. We are doing many of the same types of activities that Lourdes was just talking about for disabled students. And that type of institutional support and mentorship and peer support is critically important. We’re not going to get judges with disabilities on the bench without those structures in place. And I think it’s true that there are many judges with less visible disabilities who do not talk about their disabilities or disclose them. I think it’s important to collect that data to the extent we can. I also think it’s important for people who are public about their disabilities to be on the bench because that is what helps us provide the image and reality of a fair and just judiciary and to allow people with disabilities to believe that they can be in positions of the highest authority.

Kanya Bennett: Tona, we talked about the historic confirmation of Ketanji Brown Jackson, the first Black woman on the Supreme Court. And given this first, many may forget or not know that Justice Jackson is also the first former public defender to serve on the court. You talked a little bit about the Biden administration pulling from public defense in terms of professional backgrounds we’re now seeing in the confirmations being made with this administration. So, talk to us about why this is a big deal, too. What professional backgrounds have been represented on the federal bench? And why do diverse professional experiences make a difference in our judiciary?

Tona Boyd: If I could take a point of privilege and just share a personal anecdote about the impact of Justice Jackson’s appointment to the Supreme Court, I think it just highlights why diversity matters on the bench. Justice Jackson met with 97 Senators during the course of her confirmation process. And I was fortunate to join her for 90 of those 97 meetings. And as we walk through those marble lined hallways of the United States Senate, I can’t tell you how often we encountered the Black people that worked as staffers, that worked to help support service the building, even the woman who was responsible for cleaning the judiciary hearing room, the pride that beamed from folks’ eyes as they saw her was just incredible to witness. It was so meaningful and so moving to see how important the fact that this Black woman who looks like them was being elevated to such a position. So, I wanted to share that because I think folks may forget about how special that moment was. In terms of professional diversity, I think it’s important to note that President Biden has set records when it comes to professional diversity as well. He’s appointed more civil rights lawyers and public defenders than any previous president. And nearly 75% of confirmed judges under this administration have some aspect of professional diversity. I think, traditionally, people tend to think that prosecutors or people who have worked in big law firms are the ones that may have an easier glide path to the federal bench. And so, it’s been very important to ensure that people from other professions, civil rights lawyers, labor lawyers, public defenders, that their professional experience and expertise is just as valued as those other professions that have typically populated the federal bench.

Kanya Bennett: Claudia, I want people to appreciate how our court decisions really impact critical aspects of our everyday lives. Court decisions determine our access to education, access to employment, healthcare, and housing. And so, Claudia, can you talk to us about a few cases that would have been considered in new or different ways with a more diverse judiciary?

Claudia Center: Absolutely. I can talk about that. So, in the disability rights world, we had devastating rulings from the Supreme Court in 1999 and 2001. It was called the Sutton Trilogy and then the Williams case. Those cases, even the, ” Liberal members of the judiciary,” did not understand our perspective in those cases. And in those cases, the Supreme Court ruled that the definition of disability, as considered under federal laws like the Americans with Disabilities Act, was so narrow that it stripped away federal protections from a huge group of people with disabilities that are episodic, that have active phases and less active phases, that are mitigated to some extent with medications or devices, that affect only certain aspects of life and not others, and just really completely did not understand the lived experiences of disabled people and thought of disability as an on- and- off switch, either you can do absolutely nothing and you’re disabled, or you can do one thing and you’re not disabled, or certain things and you’re not disabled. So, it was just really a shock to our system at how poorly we were understood. And so, that was followed by legislative activity in Congress. We had the ADA Amendments Act of 2008. And before that, across the country in different states, disability advocates changed their state laws to express our lived experiences. I think that the Williams versus Toyota case in 2001 really demonstrates this problem with lack of disability diversity on our courts. In that case, Ella Williams was a Black woman who became disabled on the job, on the assembly floor, and she just wanted a simple accommodation. There were four jobs that were required on the floor. And she could do two of them. And she just wanted to be assigned to only those two jobs because she could not physically do the other two jobs. And the court had no understanding of that experience as a disability discrimination situation and instead said that because the things that she could not do on the assembly floor were not of central importance to most people’s daily lives, she did not have a claim. Well, those tasks were of very much importance to Ella Williams who lost her job. So, that is a perfect example and a terrible one as well.

Kanya Bennett: Tona, I know we’ve been talking diversity this whole episode. And I’m realizing these days that some have deemed diversity a bad word. We’ve seen judges who talk about the importance of a diverse judiciary subject to attacks. And we’ve seen the courts being used to challenge diversity, equity, and inclusion policies in the aftermath of a bad decision on affirmative action from the U. S. Supreme Court. How do we push for a diverse judiciary when there is an organized and intentional campaign against diversity in many aspects of our society?

Tona Boyd: So, Kanya, in this moment, when we see efforts to ban books, censor educators, silence dissent, and whitewash history by suppressing discussions of systemic injustice, gender, race, and the LGBTQ community, and we’re also seeing an all- out assault, as you pointed out, on diversity, equity, and inclusion, not only in our classrooms but in the boardrooms and in places of work, I think the conversation about the makeup of our judiciary couldn’t be any more important. I think we must continue to celebrate all of the history- making moments and accomplishments that have happened in these past three years of the Biden administration, but we also, I think, have to continue to push senators to continue to prioritize and consider professionally and demographically diverse candidates. I think it’s also important to encourage young people of all backgrounds to see themselves in the judiciary and to know and understand that a pathway exists for them, too.

Kanya Bennett: Lourdes, as we bring this conversation to a close, let me turn to you and talk about judicial diversity in the context of elections. So, during this especially high- stakes presidential election year, talk to us about how judicial diversity is on the ballot. You have reminded us of President Biden’s campaign promise four years ago to nominate judges who look like America. What commitments should voters seek when considering elected positions around the courts and judges?

Lourdes Rosado: We need to be better as an electorate demanding that we get commitments from candidates as they’re running for office to make the same commitment that President Biden did about creating a judiciary that really reflects America because we all know that diverse judiciaries produce better justice, more sound justice. I think part of it is literally talking to candidates and elected officials, especially in the Senate, in the U. S. Senate, with regard to the federal bench, but also to elected to have a role in their state judiciaries to appoint or nominate people that they are seeking out, not just waiting for possible candidates to come to them, but they are actively seeking out from bar associations that are affiliated with different races, ethnicities, identities. Those are very important sources of candidates. So, they have to be more proactive in reaching out to these communities. They just can’t wait. The other thing I think we need to demand from our elected officials is more transparency in the process of how to become a judge. In the last couple of years, given President Biden’s promise and commitment, I worked with colleagues at the Hispanic National Bar Association, and the Mexican American Legal Defense and Education Fund, and other partners to reach out actively to senators and their staff to suggest candidates. What I was really struck by in doing that, this was the first time I really dug down into what the process is to get someone on the federal bench, and there was so much opacity around it. It was like a mystery. I’m encouraged to see more elected officials, more senators put stuff on their websites about this is how it works, but this is a recent development where government officials are being more open about the process. I had one staff member from one Senate office, that I will not say, that said that they didn’t want to give out the names and e- mail addresses of the people who’ve been recruited to be in the Senator’s inner circle to screen candidates. That’s just not acceptable in the United States. We have to get beyond that going forward. And we need to demand that our elected officials provide that transparency and that access.

Kanya Bennett: Lourdes, thank you so much for talking to our audience about what’s at stake this presidential election year. Is there anything else you would like to leave our listeners with as we bring this episode to a close?

Lourdes Rosado: Well, two things. One, we encourage people who are interested in becoming lawyers and eventually judges who are out there, whether they’re currently young students or they’re people who are thinking about career changes, who are already out there with one job or occupation and want to go to law school. Please reach out to us. You can go to the latinojustice.org website and find out more about our leadership pipeline programs. We’d love to encourage more people with different identities to become lawyers and judges. And the second thing, to all of us as voters, we know that judges matter. We know that getting judges who really, again, reflect our diversity matter for doing justice. So, we encourage people as voters to think about that in electing people, not only their U. S. Senators, but also their state representatives, assembly people who have a role in populating the bench in the state court.

Kanya Bennett: Thank you, Lourdes. Claudia, what about you? What charge do you have for our audience today as we close out?

Claudia Center: If you’re a person who’s thinking about going to law school, please connect with your local or national disability organizations to find resources. Please Google the National Disabled Law Student Association and see their materials. If you are a person in the legal profession, please think about mentoring, supporting, and supervising with thought and care your junior staff who have disabilities, think about mentoring law students with disabilities. In our system, the election of the President determines who picks our federal judges, including with the election of senators. And from the experiences of people with disabilities and disabled people of color who is on the bench is critically important for how our civil rights laws are interpreted and whether our experiences are taken into account.

Kanya Bennett: Thank you, Claudia. And Tona, what note do you want to leave on?

Tona Boyd: I think we shouldn’t be discouraged by some of the efforts that we’re seeing to roll back some of the important accomplishments and achievements that have been made when it comes to ensuring that the highest halls of power in this country, whether that’s in our government, whether that’s in leading industries or importantly in our judiciary, that we continue to fight to have space for marginalized communities and communities that have been, so long and for too long, underrepresented in their spaces. I think we can do that by celebrating and uplifting the accomplishments that have been achieved thus far, but continuing to point out all of the places where we still have gaps, where we still have historic births to achieve.

Kanya Bennett: Tona, thank you for joining us today. It’s been great having you in this discussion.

Tona Boyd: Thanks so much for having me.

Kanya Bennett: Lourdes, thank you so much for joining us today.

Lourdes Rosado: My pleasure.

Kanya Bennett: Claudia, we were so glad to have you in this conversation.

Claudia Center: So glad to be here. Thank you, Kanya.

Kanya Bennett: Thank you for joining us today on Pod For the Cause, the official podcast of the Leadership Conference on Civil and Human Rights and the Leadership Conference Education Fund. For more information, please visit civilrights. org. And to connect with us, hit us up on Instagram and Twitter, @ civilrightsorg. You can text us, text, ” Civil Rights,” that’s two words, Civil Rights, to 52199 to keep up with our latest update. Be sure to subscribe to our show on your favorite podcast app and leave a five- star review. Thanks to our production team, Shalonda Hunter, Dena Craig, Taelor Nicholas, Oprah Cunningham, and Eunic Epstein- Ortiz. And special shout out to our Fair Courts team with their help on this episode, Samantha Cyrulnik- Dercher, Kylee Reynolds, and Lena Zwarensteyn. And that’s it from me, your host, Kanya Bennett. Until next time, let’s keep fighting for America as good as its ideals.

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