To infinity and beyond: What will it take to create a diverse and representative judiciary?
With a slim majority in the Senate, President Biden has moved swiftly to fill judicial vacancies since taking office, continuing President Obama’s determination to seek out qualified women, particularly women of color. Just this week, Biden announced a new slate of judicial nominees that again include historic firsts when it comes to the representation of women on the federal bench.
As part of his efforts to diversify the federal courts, Biden should next turn his attention to the Federal Court of Appeals for the Eighth Circuit, the most male-dominated court of appeals in U.S. history. Thankfully, vacancies are soon expected.
Fourteen years ago, I joined a group of four women in Minnesota that came together to draw attention to the fact that only one woman — Judge Diana Murphy — had ever served on the Eighth Circuit, and to foment change. We named our endeavor The Infinity Project since the infinity symbol was the number eight on its side. Judge Murphy suggested we had named it that because it would take until infinity to realize a diverse and representative Eighth Circuit.
After years of painstaking organizing in each of the seven states that make up the Eighth Circuit: Iowa, Minnesota, Arkansas, Missouri, North and South Dakota, and Nebraska, in 2013 President Obama appointed a public defender from Iowa, Jane Kelly, to the court. Her nomination even received the bipartisan support of GOP Sen. Charles Grassley.
But this small victory did not last long. Although he replaced Justice Ruth Bader Ginsburg with a woman—albeit a very different one in Amy Coney Barrett—President Trump was a return to gender inequality for our courts. Like every Republican President before him once President Carter began appointing women to the federal bench in more than token numbers, Trump appointed only half as many women as his Democratic predecessor. In fact, he appointed four men to the Eighth Circuit.
Out of 62 judges ever serving on the Eighth Circuit, only two have been women — Judge Murphy and Judge Kelly — making it the least gender diverse of all of the circuits by far. With only one sitting judge out of 18 (6 percent), the current representation of women is not even close to the next lowest circuit, the First Circuit, at 20 percent. The most representative circuit, the Eleventh, has 9 women of 21 total judges, or 43 percent. President Biden can and must begin to change that.
And just as important as having gender and racial diversity among nominees is having diversity in professional backgrounds: we should not draw all of our judges from prosecutors and private practitioners in large financial firms. We need judges with experience defending those accused of crimes, family law, employment discrimination, and so on — judges whose experience reflects the diversity of cases that come before them.
With the U.S. Supreme Court deciding only 75 or so cases a year, the Eighth Circuit Court of Appeal is the highest appellate court for the seven states of the Upper Midwest, deciding what doctors must tell women before they can perform an abortion or whether states may shackle women during childbirth.
Now that it has been fifty years since women first poured into law schools, the gross discrepancy between the number of women who excel in the legal profession and those who serve in our courts is a blot on our democracy. The problem is neither merit nor a pipeline shortage, but rather discrimination.
Are there capable women lawyers who can be judges in Florida but not North or South Dakota? Hardly. Women sit as district court and magistrate judges, they serve as deans of law schools, like Elena Kagan, they sit on state courts, lead the American Bar Association, and serve with distinction in all areas of the legal profession.
Without a judiciary as diverse as the country it judges, litigants cannot help but question the quality of justice as they stand before a bench that excludes citizens like themselves. President Biden has the opportunity to begin righting this wrong — the Eighth Circuit is long overdue for a change. The judges on the Eighth Circuit Court of Appeals may not be as visible as appointments to the U.S. Supreme Court, but just because the appointments are out of sight, does not mean it is acceptable to continue to exclude well-qualified women from serving.
Sally J. Kenney, a native of Iowa, is a political scientist and executive director of the Newcomb Institute at Tulane University. She is the author of Gender and Justice: Why Women in the Judiciary Really Matter.