Courts matter, and who sits on them matters. Too often the public’s interest in the courts is only piqued when there is a vacancy on the U.S. Supreme Court. The truth is that lower courts have far more impact on our day-to-day lives than Supreme Court justices. A minute fraction of the cases litigated in this country will reach our highest court. As voters, we need to care who is being nominated to hold a gavel in our state and our country, and we should demand that judges reflect the people they serve.
Courts impact nearly every policy area. Environmental justice, reproductive freedom, criminal legal reform, immigration, LGBTQ rights, privacy, name an issue and you can almost be certain the courts impact its trajectory. Advocates on these issues need to care as much about judicial nominees as they do about who wins legislative elections. Not only can the impact by the courts be greater than that of the legislature at times, but judges in states like New Hampshire and federal judges have lifetime appointments.
Judges should reflect the people they serve and who are directly impacted by their decisions. This means putting a premium on racial, gender and professional diversity. The previous administration’s nominees were overwhelmingly white and male, exacerbating the disconnect between courts and the public. The same arguments for why we need diversity in our legislatures can and should be made for why we need diversity on our courts.
This week, the Biden administration flipped the script of the previous administration and nominated a slate of judges set to make history on racial, gender and professional diversity. Multiple candidates will be historic firsts. This includes Tiffany Cunningham, who will be the first Black judge on the Federal Circuit Court of Appeals and Judge Lydia Griggsby as the first woman of color to serve on Maryland’s federal bench. Additionally, Judge Zahid Quraishi will be the first Muslim American to serve a on district court bench, and Judge Florence Y. Pan who will be the first Asian American woman to serve on the U.S. District Court for D.C.
This slate also reflects the similarly pressing need for professional diversity in our courts. Four of the eleven nominees are former public defenders. Elevating nominees with criminal defense experience is critical to breaking the mold that the road to the bench goes through prosecutors’ offices. Particularly at a time when this country is finally reckoning with the cataclysmic failure of “get tough on crime” policies and trying to end mass incarceration, we need to stop seeing prosecutors as the preferred resume for judges.
We need reform-minded judges and U.S. attorneys. This doesn’t exclude prosecutors, but it certainly should bring a more critical eye to them as potential nominees. Prosecutors must account for their own role in filling our prisons over the past few decades and the disproportionate incarceration of people of color. It would be deeply distressing in today’s day and age to see judicial nominees who have advocated for stiffer penalties, supported the death penalty or opposed cannabis legalization for instance.
As senators and the White House discuss potential U.S. attorneys, I hope the same emphasis on diversity applies. We do not need more heavy-handed prosecutors. We need prosecutors interested in alternatives to incarceration and who have demonstrated their commitment to police reform. And we absolutely need prosecutors who reflect the people they are charging, with an emphasis on racial and gender diversity.
Let’s also see more judicial nominees who have fought for civil rights in the courtroom. Many of the most famous decisions are about civil rights, whether it’s Roe v. Wade, Brown v. Board of Education or last year’s Bostock v. Clayton County. As the country holds its collective breath over the fate of Roe and grapples with religious exemptions to non-discrimination provisions, now seems like a particularly acute time to elevate nominees who have spent their career advocating for civil rights.
There remain dozens of open vacancies on federal courts across the country, including one here in NH. While this first slate of judicial nominees by President Biden is a good first step, I hope we see many more such nominees in the coming months. Most of all, I hope we see more nominees that reflect the same commitment to racial, gender and professional diversity as this first slate. More public defenders, please. More civil rights attorneys, please. More judges who reflect the racial and gender diversity of the people who will come before them.
(Jeanne Hruska lives in Concord and is the senior advisor for communications and strategy at the American Constitution Society.)