Chairman Nadler Statement for Subcommittee Hearing on "The Importance of a Diverse Federal Judiciary, Part 2: The Selection and Confirmation Process"
Washington, July 12, 2021
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on Courts, Intellectual Property, and the Internet hearing on "The Importance of a Diverse Federal Judiciary, Part 2: The Selection and Confirmation Process:"
"Mr. Chairman, thank you for holding this series of hearings on the importance of a diverse federal judiciary. I appreciate the opportunity to focus today on the selection and confirmation process.
"A diverse federal judiciary preserves public trust in the courts and enriches judicial decision-making. But, as I said at the subcommittee’s first hearing on this topic, we need to determine why, in 2021, our federal courts remain so strikingly nondiverse in so many ways, and what we can do to ensure that the path to the federal bench is open to all highly qualified lawyers willing to commit themselves to equal justice under the law.
"To be sure, we have made progress. Although the judiciary remains disproportionately White and male, and corporate law partners, prosecutors, and those with Ivy League degrees still predominate, the federal courts are certainly less homogenous than they once were. But that progress did not just happen. It was the product of decades of effort by people like our distinguished witnesses and by political leaders who recognized the value of increasing diversity on the federal bench.
"This progress has, unfortunately, come in waves. It began in earnest under President Jimmy Carter, who created a circuit court nominating commission that was instructed to recommend lawyers who had demonstrated 'outstanding legal ability and commitment to equal justice under law' and whose 'training, experience, or expertise would help to meet a perceived nee' of the courts. By the end of his single term, President Carter had appointed four times as many women to the federal bench as all of his predecessors combined, and more than twice as many people of color.
"Progress continued with President Clinton, whose White House Counsel explained that they wanted nominees who were 'balanced people who had a life and a wide range of experience.' It resumed again with President Obama, whose White House Counsel explained that '[t]he president wants the federal courts to look like America. He wants people who are coming to court to feel like it’s their court as well.'
"The effort to ensure that our judiciary encompasses a wide range of personal and professional backgrounds has resumed once more under the Biden Administration, whose White House Counsel made clear, in a letter sent to Senators earlier this year, that the administration wanted judicial nominees who 'represent the best of America,' 'who look like America,' and 'who have a wide range of life and professional experiences.'
"While presidents may set the tone for who they will ultimately nominate for a judicial vacancy, the judicial selection process, in practice, is far more complex than the requirements set forth in the Constitution—that the President nominates and the Senate confirms.
"For example, most people may not realize that home-state Senators also often play a significant role in recommending district court nominees to the White House. And most people may not be aware that our bankruptcy and magistrate judges—who are even less diverse than the rest of the federal judiciary—are chosen by district and circuit court judges.
"But, as I think our witnesses will explain, there are aspects of the process that resemble many other jobs. For example, people will not apply for job unless they know about a vacancy and know how to apply for it.
"And they probably will not apply if they do not think that they are wanted, or if they do not have an adequate system of support and resources to help them through what can be a long and complex process.
"That is as true for potential judges as it is for anyone else. The late Justice Ruth Bader Ginsburg, for example, explained that '[t]he first time I ever thought of being a judge was when Jimmy Carter announced to the world that he wanted to change the complexion of the U.S. judiciary, which he did.' Justice Ginsburg’s story parallels the experience of many judges who have different personal and professional backgrounds than their colleagues on the bench.
"Fortunately, years of experience at both the state and federal level have given us some useful tools to make sure that highly qualified potential judicial nominees are not overlooked.
"I am pleased that we will be hearing from our distinguished witnesses about how to design a selection process that ensures that highly qualified lawyers know about a vacancy and how to apply, are encouraged to apply, and are evaluated fairly.
"I look forward to hearing from our witnesses on this very important topic, and I yield back the balance of my time."
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