{"id":1017,"date":"2011-10-20T16:11:43","date_gmt":"2011-10-20T20:11:43","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1017"},"modified":"2015-10-02T15:26:23","modified_gmt":"2015-10-02T15:26:23","slug":"economic-diversity-in-the-federal-judiciary","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/10\/20\/economic-diversity-in-the-federal-judiciary\/","title":{"rendered":"Economic Diversity in the Federal Judiciary"},"content":{"rendered":"

\u00a0<\/span>David Yin<\/em><\/p>\n

Diversity, in its many facets, remains a ongoing issue for the federal judiciary. The\u00a0National Women\u2019s Law Center<\/a>\u00a0recently published a report highlighting the current status of female judges at the federal level. Only 30% of Circuit Court, and District Court, judges are women, and some jurisdictions are (even) less equal than others. The Eighth and Tenth Circuits have a single female judge each, and New Hampshire and Montana have no female District Court judges at all.<\/p>\n

With the defeat of Goodwin Liu\u2019s nomination to the Ninth Circuit, there is only\u00a0one active Asian jurist<\/a>\u00a0at the federal appellate level. And Arvo Mikkanen has been\u00a0waiting<\/a>\u00a0since February\u00a0to join the Northern District of Oklahoma and become the only Native American on the federal bench.<\/p>\n

It is axiomatic for many that diversity of life experience is valuable for any collegial group, whether a classroom or judicial conference, and evidence supports this intuition.\u00a0Studies<\/a>\u00a0have shown, for example, that including one woman on a three-member appellate panel of judges made it twice as likely for a plaintiff to succeed in Title VII actions alleging sex discrimination or harassment. Justice Ginsburg once\u00a0commented<\/a>\u00a0that \u201cthe presence of women on the bench made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title VII\u201d as a violation of civil rights.<\/p>\n

The Occupy Wall Street initiative reminds us, however, that one measure of diversity lags behind all others \u2013 economic diversity.<\/p>\n

<\/span>Professor Jack Balkin\u00a0suggests<\/a>\u00a0that OWS protestors should not only be howling against\u00a0Citizens United<\/a>;<\/em>\u00a0they might question whether the accumulation of power and influence by the wealthy class jeopardizes our constitutional\u00a0Guarantee<\/a>\u00a0of a republican government: \u201cA republican form of government is a government that pays attention to the welfare of the vast majority of its citizens, or in the words of OWS, it is a government that cares about and is responsive to the 99 percent, rather than a government that is captured by the 1 percent and made to do that 1 percent\u2019s bidding.\u201d Yet there is little chance this constitutional theory will pass muster in the Court, even without the barrier of\u00a0political question doctrine<\/a>.<\/p>\n

It hasn\u2019t escaped notice that the Supreme Court, which in\u00a0Citizens United<\/em>\u00a0curtailed Congress\u2019 ability to regulate corporate spending on political campaigns, is\u00a0made up<\/a>\u00a0of five (six including Justice Sotomayor\u2019s book advance) millionaires and three Justices with net worths in the six figures. Article III judges make between $169,300\u2013$217,400\u00a0in\u00a0salary<\/a>, which is not quite top 1% but within the top 6%,\u00a0and have full job security. Neither does this Court\u2019s track record show a willingness to buck the 1 percent. Aside from\u00a0Citizens United<\/em>, the Roberts Court has also\u00a0severely limited<\/a>\u00a0the ability for individuals to coordinate in class actions, and has\u00a0ruled for business interests<\/a>\u00a015% more frequently than the Rehnquist Court.<\/p>\n

In a dissent from the denial of rehearing en banc for\u00a0United States v. Pineda-Moreno<\/a><\/em>\u00a0(a Fourth Amendment case which, consolidated into\u00a0U.S. v. Jones<\/em>, will be heard by the Supreme Court next month), Chief Judge Alex Kozinski of the Ninth Circuit suggested that a lack of economic diversity shaded the judges\u2019 eyes from the plight of the respondent:<\/p>\n

There\u2019s been much talk about diversity on the bench, but there\u2019s one kind of diversity that doesn\u2019t exist: No truly poor people are appointed as federal judges. . . . Judges, regardless of race, ethnicity or sex, are selected from the class of people who don\u2019t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that\u2019s not how we and our friends live. Yet poor people are entitled to privacy, even if they can\u2019t afford all the gadgets of the wealthy for ensuring it. . . . The panel\u2019s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.<\/p>\n

Unless we radically improve the educational opportunity and mobility of the least-off, economic diversity can probably never be \u201ctruly\u201d achieved in the judiciary. In the meantime, with the potential capture of two other federal branches by moneyed interests, we can only hope judges will be cognizant of their relatively insulated positions and vigilant against decisions privileging the rich over the many.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0David Yin Diversity, in its many facets, remains a ongoing issue for the federal judiciary. The\u00a0National Women\u2019s Law Center\u00a0recently published […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1017","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-gp","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1017","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1017"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1017\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1017"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1017"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1017"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}