Chief Justice, and may it please the Court. Only the Chief Justice is addressed as Mr. Chief Justice. Justices, typically, ask questions throughout each presentation. However, in courtroom or classroom simulations, to put student attorneys at ease, student Justices do not ask questions for the first two minutes of each side's argument. Before leaving the podium after making the initial presentation, counsel for the petitioner may reserve some time for rebuttal after the respondent's counsel has presented.
The petitioner — not the Court — is responsible for keeping track of the time remaining for rebuttal. In typical program simulations, more than one student attorney argues each side. In that instance, they should inform the student Marshal before the court session begins how they wish to divide their time. Usually, the first student attorney to speak also handles the rebuttal.
When oral arguments are concluded, the Justices have to decide the case. They do so at what is known as the Justices' Conference. When Court is in session, there are two conferences scheduled per week — one on Wednesday afternoon and one on Friday afternoon. At their Wednesday conference, the Justices talk about the cases heard on Monday. At their Friday conference, they discuss cases heard on Tuesday and Wednesday.
When Court is not in session, no Wednesday conference is held. Before going into the Conference, the Justices frequently discuss the relevant cases with their law clerks, seeking to get different perspectives on the case. At the end of these sessions, sometimes the Justices have a fairly good idea of how they will vote in the case; other times, they are still uncommitted.
According to Supreme Court protocol, only the Justices are allowed in the Conference room at this time—no police, law clerks, secretaries, etc. The Chief Justice calls the session to order and, as a sign of the collegial nature of the institution, all the Justices shake hands. The first order of business, typically, is to discuss the week's petitions for certiorari , i. After the petitions for certiorari are dealt with, the Justices begin to discuss the cases that were heard since their last Conference.
According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have. Each Justice speaks without interruptions from the others. The Chief Justice makes the first statement, then each Justice speaks in descending order of seniority, ending with the most junior justice—the one who has served on the court for the fewest years.
When each Justice is finished speaking, the Chief Justice casts the first vote, and then each Justice in descending order of seniority does likewise until the most junior justice casts the last vote. Addressing the pipeline problem, as explored above, will go a long way toward ensuring that there is a larger pool of judicial candidates from which to choose for the federal bench. But ensuring that future judicial candidates are set up for success in and out of law school is only half the battle.
Even if lawyers from different backgrounds play their cards right under the current system—by going to the most prestigious law school, graduating at the top of their class, clerking at the Supreme Court, and then making partner at a top law firm or presiding over a state supreme court—they still face an uphill battle in attaining a federal judgeship.
As explored in Part I of this report, despite their exceptional qualifications, judicial candidates from underrepresented groups are far outnumbered by cis white male judges on the federal courts. Solutions are therefore needed to ensure that candidates from all backgrounds are being nominated by presidential administrations and approved by Congress. As illustrated in previous sections of this report, for much of American history, U. Except for during the administrations of former Presidents Jimmy Carter, Bill Clinton, and Barack Obama, judicial nominations of people from underrepresented groups have been few and far between.
Similarly, even when candidates of color, women, and openly LGBTQ candidates have been nominated, Congress has been slow to confirm their appointments. Another explanation is that in nominating and confirming federal judges, presidential administrations and Congress must make various considerations and strategic calculations. Depending on the political climate at the time, judicial diversity may unfortunately fall by the wayside even under administrations with the best intentions.
In nominating judges, presidents must make diversifying the bench a top priority for their administrations. As discussed previously, President Carter was a leader in this area. President Obama, too, consciously selected judges who represented a variety of backgrounds and experiences. Presidents must emulate the examples set by Carter and Obama to diversify federal courts. Efforts to diversify the federal bench cannot, however, be limited to demographic characteristics.
In addition to compiling a group of nominees from different racial and ethnic backgrounds, genders, LGBTQ identities, and religious affiliations, presidents should nominate judges who come from different educational and professional backgrounds. That the federal judiciary is made up largely of judges who worked in private practice and as prosecutors is problematic since it means that a very small subset of perspectives dominate the judicial system.
There are many lawyers who would make excellent judges that are currently working in the public sector, including as public defenders, nonprofit litigators, and as direct legal service providers. Although such career paths have historically not been pathways to federal judgeships, they certainly should be.
That Obama—who arguably did more to improve representation on the federal bench than any other president—did not appoint people from historically underrepresented groups at rates of even 50 percent is noteworthy. In order to make any real dent in the diversity problem that plagues the current judiciary, the proportion of women and people of color being appointed needs to be much higher, greatly exceeding any 50 percent threshold.
LGBTQ judges, judges with disabilities, and judges belonging to religious minorities should also be appointed at significantly higher rates. In nominating and confirming judicial appointees, presidential administrations should engage in robust consultation with a variety of groups and communities. Affinity organizations and bar associations, disability rights and justice advocates, and interfaith coalitions and leaders specializing in judicial nominations can provide a wealth of valuable insight on and recommendations for judicial nominees from different backgrounds and experiences.
Like the executive branch, the legislative branch must also make confirming these nominees a matter of utmost importance.
The Senate should demand nominees who belong to underrepresented groups and who come from different backgrounds. It should no longer be a complacent party in confirming more and more white, male, and elitist judges. The Senate has significant power over the judicial confirmation process and, as such, should be more assertive in pushing for greater diversity on the bench.
Senators should similarly consult with justice-oriented groups and affinity bar associations when confirming judicial nominees. Such organizations can warn lawmakers about nominees with poor records on issues that disproportionately affect historically underrepresented groups. Although the ABA does not exercise any formal authority over who gets nominated or appointed to the federal bench, it plays an influential role through issuing ratings on federal judicial nominees.
Unfortunately, research suggests that the ABA rating system disproportionately disadvantages judges belonging to historically underrepresented groups. For instance, female judges and judges belonging to racial or ethnic minorities are less likely than their male and white counterparts to be highly rated by the ABA, even though there is zero evidence that white or male judges are more qualified than those belonging to underrepresented groups.
The recommendations listed above are steps that can be taken to ensure that, going forward, judicial vacancies are filled by judges who belong to historically underrepresented groups and have a variety of experiences. There, of course, remains the question of what to do about the judges already serving on the federal bench. As described in previous sections of this report, judges—like everyone else—have implicit biases regarding race, gender, sexual orientation, religion, and so on.
Although it is impossible to eliminate judicial bias in its entirety, steps can be taken to mitigate its effect. For example, federal judges—including Supreme Court justices—along with all senior court employees and law clerks, should be required to undergo implicit bias training on an annual basis.
Trainings could be carried out by implicit bias specialists and include presentations from affected litigants as well as organizations and bar associations representing various groups and communities, specifically those that are historically underrepresented.
Implicit bias training could be mandated by the Federal Judicial Center or required by Congress. All federal judges are already required by law to complete annual financial disclosures in the interests of transparency and accountability.
Another way to mitigate bias is for state bars to require trainings as part of their Continuing Legal Education curriculum, as is the case in Minnesota. For instance, organizations engaged in court monitoring practices will often send trained volunteers to monitor certain classes of court cases for judicial bias against parties and attorneys.
These organizations can then provide feedback to judges on their performances and offer judicial bias trainings to address the problem. The federal judiciary needs judges with a wealth of different and unique experiences, who understand how their rulings can affect people from underrepresented groups and those from all backgrounds.
Improving the diversity of the federal judiciary would signal both to the public and to parties that have business before the courts that it is a fair and equitable institution. It would also ensure a more even-handed justice system and signal to everyone that a critical part of U.
Indeed, because federal judges serve for life, it will take years—if not decades—for the United States to have a federal judiciary that more closely mirrors the demographics of the country. Getting there requires a strong commitment to taking affirmative steps to improve the judicial pipeline and selection process in order to ensure that judicial candidates represent a variety of backgrounds and experiences. This commitment and responsibility must be shared by every person and entity who has a hand in the making of federal judges; this includes presidents, senators, sitting judges, law schools, law firms, justice-minded organizations, bar associations, and American voters.
The authors would like to thank Carlie Malone and Nina Reddy for their exceptional research on this report. The demographic characteristics of current and past appointed judges were retrieved from the Federal Judicial Center FJC , which provides information on race, ethnicity, and gender. The data were then broken out to provide diversity characteristics for all sitting judges, sitting judges by circuit, judges appointed by Trump, and judges appointed by each president dating back to FDR.
In order to compare judicial diversity with population diversity in the circuits, the authors collected population demographic information from the U. Census Bureau for each state and U. This information was then aggregated to provide a representative picture of demographics for the populations covered by each federal circuit court. Nance and Paul E. James L. For instance, one study on women judges found that they issue harsher sentences for certain offenses.
See Ibid. Kristine L. Supreme Court, and state appellate courts. Smith Jr. For an overview of research on the impact that religious affiliation has on judging, see Jeffrey J.
Rachlinski and Andrew J. See, generally, Steven A. Jonathan P. Cox and Thomas J. The authors examined which judges still serving on the federal bench would meet the senior status qualification requirements under 28 U.
Street Law Inc. Sarah E. I had no idea. I made my own outlines from scratch, and they were horrible. By the time I realized I had to be plugged in with the white students to get the good outlines, it was already the end of my second year. Law Firms. See Mary L. Danielle Root. Maggie Jo Buchanan. Peter Gordon Director, Government Affairs.
In this article. InProgress Stay updated on our work on the most pressing issues of our time. See also. May 8, Danielle Root , Sam Berger. Examining the Demographic Compositions of U. Circuit and District Courts. Feb 13, the Democracy and Government Reform Team. Part II: Diversity on the federal bench matters. Better descriptive and substantive representation on the bench The presence of a diverse group of federal judges improves both the descriptive and substantive representation of underrepresented groups on the federal bench.
District Court for the Northern District of California[ Edward M. Better, fairer decisions Judges are human beings who hold biases and prejudices like everyone else. Having a group of judges from a variety of backgrounds, including underserved or historically underrepresented communities, has a positive impact on the decision-making processes of federal judicial panels and the Supreme Court.
Address the pipeline problem The lack of diversity within the federal judiciary cannot be remedied without addressing the judicial pipeline problem. As described in a report by the Minority Corporate Counsel Association on sexual minority attorneys: Nongay people announce their sexual orientation whenever they mention a date, a spouse, or a child.
Get young people from underrepresented groups interested in judgeships In order to bring individuals from all different backgrounds into the judicial pipeline, it is necessary to get young people of different races and ethnicities, genders, sexual orientations, and religions excited about pursuing a career in law.
Make the law school admission process fairer and more accessible Before becoming a federal judge, one must be admitted to and attend law school. Ensure that law school environments are inclusive and welcoming Once in law school, students may experience an unwelcoming environment that can at times be downright hostile. Ensure that law students have equal access to professional opportunities The many challenges that underrepresented students face in law school can prevent them from obtaining prestigious judicial clerkships and positions at distinguished law firms, both of which have traditionally been considered necessary for becoming a federal judge.
Prioritize diversity in legal sectors that serve as stepping stones for judgeships As described in previous sections of this report, working in certain sectors of the legal field—for example, serving as a judicial clerk, working at a top law firm, presiding as a state or local judge, or serving as a state attorney general or U.
Judicial clerkships Clerkship positions are not often filled by candidates from historically underrepresented groups. Law firms Like clerkships, prestigious law firms are also highly selective and favor law graduates who attended elite law schools and graduated at the top of their class.
Prioritizing judicial diversity in the nomination and appointment process Addressing the pipeline problem, as explored above, will go a long way toward ensuring that there is a larger pool of judicial candidates from which to choose for the federal bench. Sittings and recesses alternate at approximately two-week intervals. With rare exceptions, each side is allowed 30 minutes argument and up to 24 cases may be argued at one sitting.
Since the majority of cases involve the review of a decision of some other court, there is no jury and no witnesses are heard. For each case, the Court has before it a record of prior proceedings and printed briefs containing the arguments of each side.
During the intervening recess period, the Justices study the argued and forthcoming cases and work on their opinions. Each week the Justices must also evaluate approximately petitions seeking review of judgments of state and federal courts to determine which cases are to be granted full review with oral arguments by attorneys.
The Constitution of the United States is a carefully balanced document. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.
While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to , state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people.
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