Interim Executive Director & Vice President, Policy
National Urban League, Washington Bureau
In the past year, we have witnessed a first in the historic confirmation of Associate Justice Ketanji Brown Jackson to the U.S. Supreme Court, but she was not alone. We have seen an unprecedented number of Black women being appointed to the Federal courts. Of the 100 lifetime federal judicial confirmations since January 2021, 25 percent have been Black women, including almost half of confirmed circuit court judges. 28
This growth in the representation of Black women in the judicial system is important for a number of reasons.
The courts are the arbiters of justice and the law in this nation. As a result, it is extremely important that we have judges who have a breadth of knowledge and a diversity of backgrounds to consider cases from a variety of perspectives.
Many of the Black women judicial nominees in the past two years have a background in public service – including as public defenders and other roles that allow them to work with communities that have been traditionally underserved under the law. This firsthand experience has traditionally not been reflected on the bench, with 70 percent of judges having private sector or prosecutorial backgrounds. 29
This has been seen in Associate Justice Jackson who is the Supreme Court’s first justice with experience as a public defender. As the National Urban League stated in its statement for the record before the Senate Judiciary Committee in support of Associate Justice Jackson’s confirmation:
[p]ublic defenders fight daily to ensure that indigent individuals and people of color are fairly represented in our court systems, which often perpetuate injustices against these communities. Judge Jackson’s unique experience will bring an understanding of the realities of the criminal justice system and its impact on individual defendants to the Court, which currently consists of former prosecutors, academics, and corporate attorneys. 30
This is also reflective of other recently-confirmed justices, such as Judge Holly Thomas, who was confirmed to the U.S. Court of Appeals for the Ninth Circuit, Judge Candace Jackson-Akiwumi, who was confirmed to the United States Court of Appeals for the Seventh Circuit, and Judge Arianna Freeman, who was confirmed to the United States Court of Appeals for the Third Circuit.
Further, research shows that this diversity does impact judicial decision making, particularly in critical civil rights, racial justice and cases related to voting, affirmative action, and sex discrimination cases. 31 This data demonstrate that the varied perspectives diverse judges bring to the bench can lead to better decision making, particularly for judges who issue panel-based rulings. 32 This is critically important – we need arbiters of the law who can rule on critical issues before our courts, including those related to the rights and liberties that Black women have long fought for, in the most just fair and just manner.But we still have a long way to go. According to the Brennan Center for Justice, “[e]ach of our 50 state supreme courts has between five and nine justices, and in 22 states, that bench is all white—including in 11 states where people of color make up at least 20 percent of the population….Thirty states don’t have any women of color serving as
justices.” 33 On the federal level, Black women consist of only four percent of federal judges. 34
There are a number of federal legal and policy reforms we can pursue to ensure that the number of Black women judges continues to increase.
First, we must fight against attempts to prevent law schools from considering race in admissions to increase the number of Black women in the legal pipeline. Black students comprised only 7.8 percent of students who entered law school in 2022, a decrease in Black matriculation from 2020. 35 As explained by the student respondents in the affirmative action case Students for Fair Admissions v. University of North Carolina currently before the Supreme Court, “[a]nationwide ban on race-conscious admissions would block the pipeline of well-qualified racially diverse college graduates whose contributions are critical for the welfare of businesses, healthcare, the military, and countless institutions central to democracy. 36
Congress must also change its self-created rules to make federal judges as qualified and diverse as possible. This includes reforming the “blue slip” process, which allows a Senator to express disapproval of those nominated to serve as judges in their state, even if for purely partisan reasons, and block the advancement of qualified nominees. This cannot be done without voting for and electing Senators who are committed to a fair, and just judiciary, and confirming judges who will fulfill that mission.
Implementing these policy goals would bring in more diverse judges who share the goal expressed by Associate Justice Jackson during her confirmation hearings of “ensuring that the words engraved on the front of the Supreme Court building — “Equal Justice Under Law” — are a reality and not just an ideal.”
https://www.afj.org/our-work/judicial-nominations/ (as of 2/14/2023).