Sybil Dunlop, BridgeTower Media Newswires
Among the hats that I wear, I’m currently serving as president of the Infinity Project. But I’ve realized that not everyone even knows what the Infinity Project is. Case and point: when I joined, my dad asked whether it was an advanced mathematics project. (It’s not, but I can understand his confusion). So what is it? The project aims to increase the gender diversity of the state and federal bench to ensure the quality of justice in the 8th Circuit. And it seeks to achieve this aim in three ways:
• Creating public awareness for the lack of and importance of gender equity on the bench and the availability of qualified women candidates.
• Engaging senators and other decision-makers on the issues of gender equity and the need for appointment of women to the state and federal bench within the 8th Circuit region.
• Serving as a clearinghouse for women who have indicated an interest in serving on the state or federal bench within the 8th Circuit region (helping them apply for positions, prepare for interviews, and get the job).
Why does any of this matter? For a long time, Judge Diana Murphy was the only woman who had served on the 8th Circuit (which was founded in 1891. So for 103 years, there were no women). In 1994, President Bill Clinton appointed Judge Murphy to the 8th Circuit. But for the next 20 years, again, nothing. In 2013, President Barack Obama nominated Jane Kelly, and I heard folks say, “Well, good job, Infinity Project. Your work is done. You’ve got another woman on the 8th Circuit. You can call it quits.”
Noooo. Because, again, I can do math and at this rate, it will take 120 years to get to gender parity on the 8th Circuit, and Kelly is the only woman. Which is troubling because women have been graduating from law school at the same rate as men since the 1980s.
But why do I care about having women on the 8th Circuit or any court for that matter?
First, I wanted to take a minute to share why I don’t care.
I don’t think women will be kinder and gentler judges. Women can be cutthroat. Catherine the Great. Bloody Mary. Margaret Thatcher. And the idea that women will civilize the public arena because they have an “ethic of care” is the exact same reason why Rousseau said that women shouldn’t be allowed to vote—they were too nice and moralistic to participate in the political arena. I don’t buy it. And yet I hear folks advancing this as a reason for more female politicians and judges all the time.
But here’s why I do care.
First, the legitimacy of our judicial system depends upon it mirroring our society. This idea is as old as our nation. In Federalist No. 39, Madison opined that a representative government is only deemed legitimate if its institutions draw from all sectors of the population: “It is essential to [a republican] government, that it be derived from the great body of the society, not from ... a favored class of it ... .”
And I’ll go from Madison to Professor Sherilynn Ifill, a law professor at the University of Maryland who publishes frequently on this issue: “It’s not that a judge from Iowa is biased in favor of Iowa litigants. It’s that if all the judges on the Circuit are from Iowa, then Minnesota litigants or Arkansas litigants might lose confidence in the fairness of the court.” Justice Sandra Day O’Connor knew this to be true, opining that “In terms of having the American people look at the court and think of it as being fair and appropriate for our nation, it helps to have women, plural, on the court.”
Studies actually bear this out. While the courts tend to be viewed more favorably than the other branches of government, polling data by the National Center for State Courts suggests that today’s public has serious concerns about the fundamental fairness of courts. Almost 70 percent of voters think that the courts favor large corporations and the wealthy. Also, less than one-third of African Americans believe state courts provide equal justice, compared with 57 percent of all Americans.
Unless our courts represent our society, they will lose legitimacy. And, of course, they have nothing other than the public’s favorable view to back them up. They have no money, like Congress. They have no army, like the executive branch.
The second reason that judicial diversity is important is a bit more controversial, but no less important in my mind.
Diversity on the courts enriches judicial decision making. Again, I’ll quote Professor Ifill: “The interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decision making, especially on our appellate courts.”
Here’s an example: If we only had civil litigators serve as judges on appeals courts, we’d be missing out on the experience of criminal litigators. Especially because most appeals occur in the criminal arena. But it is just as true that we are better when we have diverse voices informing the judicial conversation.
And by better decisions, I don’t mean influencing outcomes. I mean influencing the level of analysis — a more robust (and better) analysis informed by diverse experiences. We want to subject every case to the most rigorous and comprehensive analysis that takes into account differing viewpoints and perspectives that may be informed by a judge’s perspective, and yes, their gender and race.
This matters at the appellate level, where judges talk to each other, and can be informed by the sharing of diverse viewpoints and experiences. But it also matters at the district court level where we want our judicial decisions to reflect a portfolio of diverse experiences and opinions. We will get better law as a result.
Surely no court system can be viewed with legitimacy if it only represents one sector, class, or group. Legitimacy derives from a sense that our courts are open to all and representative of our communities. I’m honored dedicate my time to ensuring that this happens—carrying the torch that Madison lit so long ago.
