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Published: October 2022
Written by: Marc Hernandez

This year the President of the United States appointed Justice Ketanji Brown Jackson, the first female African American justice, to the U.S. Supreme Court. In addition, the Governor of Florida appointed Justice Renatha Francis, the first Jamaican American and second black woman, to the Florida Supreme Court. These appointments are not only a success story for the justices themselves but also a success story for diversity in the judiciary. But whether this represents the start of a new trend, or a relatively isolated occurrence remains to be seen.

The American Bar Association recently released its annual profile of the legal profession for 2022. In its 124-page report, the ABA analyzed, among other things, the diversity of the judiciary. The ABA found the “federal judiciary has become increasingly diverse over time,” especially since 2021. However, the ABA explained that progress was uneven, and “[d]iversity varies year by year.” For example, from 2020 to 2022 the percentage of African American or black judges on the federal bench increased slightly from 9.5% to 11%. In the same period, the representation of Hispanic federal judges grew from 6.5% to 7.7%, while the share of Asian Americans grew from 2.6% to 3.8%. Finally, the percentage of female federal judges rose from 27% to 30%. 

At first glance, these statistics indicate positive, albeit incremental progress at increasing diversity in the judiciary. Yet, the numbers need context. Although black judges comprise 11% of the federal bench, they are underrepresented compared to the total black population in the U.S., which is 13.6%. Hispanics fare worse as the percentage of Hispanic federal judges, 7.7%, is less than half that of their share of the U.S. population, 18.9%. Likewise, women account for 51% of the U.S. population but only 30% of federal judges. Three states—Nebraska, North Dakota, and Idaho—have absolutely no female federal judges.

Some may argue that if minority judges are compared to the pool of U.S. lawyers—rather than the entire U.S. population—they are not underrepresented. The ABA concedes this point is factually true, but the implied conclusion—that diversity is not an issue and full representation has been achieved—is not. The reason the percentage of Hispanic federal judges exceeds the percentage of Hispanic lawyers—but not the percentage of all Hispanics in the U.S.—is because the percentage of Hispanic lawyers is exceedingly low to start. Only 5.8% of all lawyers are Hispanic even though 18.9% of Americans are Hispanic. Of course, this begs the question: why is the percentage of Hispanic, black, female, and other minority lawyers lower than their share of the U.S. population?

We should all be concerned with the answer to this question if we hope to eliminate the vestiges of racial prejudice and other unjust systemic disadvantages. Reasonable people can disagree on the best policies to achieve that objective. For decades, one tool has been race-conscious admissions policies at universities and other educational institutions. Under current law, universities may consider—i.e., they are not required to consider—race or ethnicity as one of many factors in the process of evaluating each applicant as an individual. As the U.S. Supreme Court held in Grutter v. Bollinger, universities have a compelling interest in attaining a diverse student body and the educational benefits flowing from that like promoting cross-racial understanding, breaking down racial stereotypes, and enabling students to better understand persons of different races, promoting learning outcomes, preparing students for an increasingly diverse workforce and society, and preparing students as professionals.

However, the continued validity of Grutter, which was a 5-4 decision, is now in doubt. This term the U.S. Supreme Court is poised to reconsider Grutter in two cases brought by Students for Fair Admissions against Harvard and the University of North Carolina. In both cases, the petitioner explicitly asks the supreme court to prohibit the use of race-conscious admissions policies by universities. The ABA has filed an amicus brief in opposition and asked the supreme court to affirm Grutter. The ABA maintains it has “a profound interest” in the two cases because “[r]acial and ethnic diversity in the legal profession cannot be produced without diversity in undergraduate institutions and law schools that serve as the pipeline to the legal profession.” In other words, law schools are the training grounds for future lawyers, and if fewer diverse students are admitted to law schools then fewer will have the opportunity to graduate, practice, and become judges, professors, or partners later in the professional pipeline.   

Regardless of the Supreme Court’s eventual decision in the Students for Fair Admissions cases, most if not all should agree with the ABA’s view that a diverse bench and bar are critical to minimizing implicit bias among lawyers, and to “inspiring greater public faith in the rule of law.” The methods for achieving that diversity may change but the goal should not.

Marc Hernandez is a board-certified appellate attorney at Lytal, Reiter, Smith, Ivey & Fronrath, and a Palm Beach County native.