Diversity improves most groups or endeavors. Diversity in a workplace encourages creativity and innovation and brings together a variety of views that result in better ideas. Diversity in positions of power is essential, particularly the judicial bench. Judges of different gender, races, religions, cultures, sexual orientations, backgrounds, and mindsets are critical to ensure that the ultimate goal of equal justice is achieved. Judges with different backgrounds, experiences, and perspectives are necessary to achieve the fundamental element of fairness. A bench that is reflective of broader society helps instill confidence and legitimacy in our courts and works towards the goal of delivering fair and impartial treatment of all.
The current composition of our federal courts illustrates that we have a long way to go to achieve optimum results. Still, strides have been made from the once entirely white, male courts. It took years for the barriers of gender and race to fall. The first appointment of a woman of color then followed. African Americans, Asian Americans, members of the LBGT community, and members of various religious beliefs slowly were tapped. Yet one group that has extreme disproportionate representation on the federal bench is Native Americans.
Representation of all segments of our society in our government and, in particular, the judiciary is important, but it seems particularly cruel to ignore the indigenous members of our country. There are approximately 870 Article III judges, and only four Natives have ever been appointed to the federal bench. Presently there remain only two Natives at the district court level and none on the federal appellate courts. This equates to Natives comprising an appalling 0.22% of the federal bench. This is particularly concerning and disappointing because Native American individuals and tribal entities are parties to federal court proceedings at a significantly higher rate than non-Natives. In the end, American Indians take no part in shaping what is known as federal Indian law.
The appointment of Hopi Tribal member, Judge Diane Humetewa, U.S. District Court for the District of Arizona, was an important yet long overdue step in moving the courts in the direction of balance in terms of diversity. We are slowly making progress, but still, we have a long way to go if we want our courts to be a true reflection of our population. Judicial appointments of members of all underrepresented groups should increase. For instance, the Supreme Court is comprised of three women and six men, even though women make up more than half of the U.S. population. The Court's composition needs to be more colorful and certainly more female by at least one or two justices. But why stop there? According to Ruth Bader Ginsburg, there will be enough female justices on the Supreme Court "when there are nine."
Originally published by Lincoln Derr, September 2020
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