Picking Judges in the 21st Century

Picking Judges in the 21st Century


I’m going to kick us off this morning. My name is Sybil Dunlop. I’m a partner at Greene Espel, and the current president of the Infinity Project. When I joined the Infinity Project, my dad asked if I was joining an advanced mathematics project. It’s not but I wanted to do two things in my introductory remarks. The first one was explained what it is because the name is not necessarily, obviously, intuitive. The second thing is talk about why I care so passionately about its mission. The Infinity Project aims to increase the gender diversity of the state and federal bench to ensure the quality of justice in the Eighth Circuit. It seeks to do this in three different ways. First, it wants to create public awareness about the lack of and the importance of gender equity on the bench. It wants to engage senators and other decision-makers on issues of gender equity, and it serves as a clearing house for women who have indicated an interest in serving on the state or federal bench within the circuit. This includes helping them apply for positions, giving the mock interviews before they have interviews, and helping them get the job. Before I turn to why I care passionately about its mission, I want to say as a disclaimer because I’m a lawyer, that I’m confident that not everyone’s speaking here today agrees with me about why I care passionately about the Infinity Project’s mission and that’s awesome. I am so excited to have a robust conversation here today to participate in an arena where we’re going to share diverse ideas and learn from each other. But I get to go first, and I get to say why I care passionately first. The first thing I want to say is that I know it’s not fair now, the numbers tell us that story. For a long time, Judge Diana Murphy was the only woman who had ever served on the Eighth Circuit. It was founded in 1891. So I’m going do my math from the Infinity Project, 1891 to 1994, that’s a 103 years. In 1994, Clinton appointed Judge Murphy to the Eighth Circuit. But for the next 20 years, we’ve gotten nothing. So in 2013, President Obama appointed Jane Kelly and I heard folks say, “Well, good job Infinity Project. Your work’s done. You’ve got another woman on the Eighth Circuit. You can call it quits.” I want to say no because I can do math. At this rate, it’s going to take a 120 years to get to gender parity on the Eighth Circuit. Our work is not done. So why do I even care? Why do I care about getting to gender equity on the Eighth Circuit? I want to do one thing first and say why I don’t care. I don’t think women will be kinder or gentler judges. Occasionally, I hear people advance this argument that women will bring an ethic of care to the bench, that women care more than men judges. I don’t think that’s remotely. True. Women can be cut-throat, women can be terrible, I can disagree with them. They can be evil. We have Catherine the Great, Bloody Mary, Margaret Thatcher. I was worried about that joke. The idea that women will civilize the public arena is frankly the reason why Rousseau said women shouldn’t be allowed to vote in the first place, that they were too moralistic, that they would be somehow sullied by participating in this arena. So here’s why I do care. First, I believe the legitimacy of our judicial system depends upon it reflecting the communities we live in. This is an idea that’s frankly as old as our nation. In Federalist Number 39, Madison wrote that 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 and not from a favored class of it. I’ll go from Madison to Professor Sherrilyn Ifill, for an example, and she says, “It’s not going to judge from Iowa is biased in favor of Iowa litigants. It’s that if all the judges on the circuit are from Iowa than Minnesota litigants or Arkansas litigants might lose confidence in the fairness of the court.” Studies actually bear this out. They have done interviews right now in Los Angeles where they’re interviewing people who are Latino, and they don’t believe they have a fair shake at the judicial system because it doesn’t look like them. The second reason that the judicial diversity is important to me is a bit more controversial but I think it’s important to discuss it openly. I believe that diversity on the court’s 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 had only civil litigators on our appellate courts and no criminal litigators, we would feel like something was missing, an aspect of the debate and experience that people could make better decisions from. I believe it’s exactly the same thing with gender. I don’t mean that I want to influence outcomes. What I mean is that when the judges are having a robust and full conversation about a case, I want there to be a representative democracy. I want there to be voices of everyone in our society there because we will get better outcomes when there are multiple perspectives there forcing us to have thorough and robust analysis when we reach a decision. So I will close for thanking you for listening to my perspective at the outset. I am so excited here and learn from our exciting lineup of speakers, two of whom include law school professors of mine. So I will now turn the mike over to Matthew Hough, who was the Editor-in-Chief of the University of St. Thomas Law Journal, who has worked tirelessly to put together this event and he will give you the official kick-off. Thanks. Thank you Sybil. I don’t know how official this kickoff will be even. I’m going to try my best here. My name is Matt Hough and I’m the Editor-in-Chief of the University of St. Thomas Law Journal. On behalf of the Law Journal, I’d like to welcome all of you to our symposium today titled, Who decides picking judges in the 21st century. We have an exciting program here today. One that we’ll look at the evolving nature of the judicial selection process as well as the meaning and importance of judicial diversity from a wide range of perspectives. Last May when the journal approach Dean Brabbit and the Infinity Project about co-sponsoring a symposium. We knew right away that this topic was the perfect fit for both the mission of the Law Journal and the mission of the Infinity Project. Our law journal is a student-run publication and we examine currently legal issues through the lens of our mission. So the topics that we’ll be discussing today really align with our mission because they touch everyone in this room and every member of our society. Our judges shape our democracy. They influence our social constructs and they guide our behavior and so we’re really honored to have such a diverse group of speakers with us today. So on behalf of the Law Journal, I’d like to thank all of our speakers for being here. Many of them traveled a great distance to join us here in warm and sunny Minnesota on a Friday in March. So we really appreciate that. I’m also grateful for the Infinity Project and having the opportunity to co-sponsor this event with them. I want to thank everyone at the school of law for making this event possible. Finally, I want to thank all of you for joining us today. We have a great program and we’re looking forward to hearing what our speakers have to say. So with that, I will hand things off to my journal colleague, Patty Dana, who will introduce our first speaker. Thank you. Who’s from Vanderbilt University, where she serves as the Interim Vice Provost for Faculty Affairs and holds the Charles B. Cox III and Lucy D. Cox Family Chair in Law and Liberty. Professor Tracey George brings a much needed social science perspective to conversations about race,, gender, and equity in the legal profession. She challenges us to think about how the structure of our legal institutions shape but the outcomes they produce. For example, in 2008, Professor George co-authored an article calling for the Congress to redesign the Supreme Court, expand its membership and set standards for panel and on-bunk review. These changes, she argues, would expand the capacity of the court allowing them to here five times the number of cases that they hear today. This would enable them to serve as a more effective check on the other branches of government, and more active in reviewing the decisions of the lower courts. Now, any resistance or hesitation that we feel to this change might be instinctual, but it’s not grounded in the text of the constitution. Professor George reminds us that Article III itself says nothing about the size or the shape of our Supreme Court. One other possible benefit of this redesign, a much more diverse bench. Professor George’s more recent scholarship has turned to the state court systems, examining the demographics of those who serve on states across the country. As independent researchers, Professor George and Professor Albert Yoon worked with the American Constitution Society to construct an unprecedented database containing more than 10,000 biographies of state court judges across the country. They then use this data to compare the gender, racial, and ethnic composition of each court to the general population of its state. The gavel gap describes the disparity they found in race and gender between those who hold judicial power and the communities they serve. Professor George explains and I quote, “When the judiciary appears to reflect the existing power structure, it simply makes it appear as though judges are principally interested in protecting the status quo instead of protecting the rights of all. The judicial system is there to serve interests that transcend short-term political goals or partisanship. But rather than listen to me.” Quote her own words. Please join me in welcoming Professor George to the podium. Well, that was a very generous welcome and thank you Patty very much for it. I’m going to see if I can make this work, advance. Can you see that as well? Awesome. All right. So good morning. I am delighted to have the opportunity to be here today as part of this joint Symposium sponsored by the University of St. Thomas Law School and Law Journal, and the infinity project. It’s an honor to be included in this impressive group of speakers who’ve been persuaded to come and join you, and I look forward to hearing what everyone else has to say as well. I owe special thanks to the St. Thomas Law Journal and to the infinity project. In particular, I’d like to thank Editor and Chief Matt Huff, Senior Editor Mimi Lewean, and of course my former students civil Dunlop who continues to be the remarkable and visionary leader she proved to be now too many years ago it seems in law school. I particularly appreciate this chance to discuss with you the dynamics of judicial selection in the United States and why it’s significant and the importance of it and understanding the work that our judicial system does. My plan is to speak for 20 minutes so that we can have 10 minutes for questions at the end. If you look at your table, you have useful notecards in the center of the table and my spy pens as well. If you write down any questions you have, at the end when it’s time for questions if you hold them up, Matt has promised me that someone will come and grab those questions from you. So I’m talking about judges, but what I’d like to do is start by looking at the midterm elections of 2018. So in the midterm elections of 2018, the results were heralded as marking a dramatic change in who serves as our elected representatives. There were a historic firsts for women, for ethnic racial and religious minorities, and for LGBTQI candidates as well. As you can see from this slide which is a squaring in of the most recent Congress, there were record numbers of women and minorities sworn in in January of this year. Indeed, and the just over 100 years since Jeannette Rankin was sworn into the 65th Congress as a Republican from Montana, now nearly one quarter of voting Federal lawmakers are women and four of the six non voting as well. Lawmakers have color comprise almost the same percentage marking 22 percent and as with women, they’re slightly better representation in the House than in the senate. We saw similar results in 2018 in the state legislatures. Today one-quarter of state legislative seats are held by women, and 19 percent are held by people of color. Now executive offices do lag. While we saw the first openly gay governor elected in Colorado, by contrast we have not seen much change in the number of women and governor seats. Nine of the current governors are women, we’ve had that number twice before. No woman has been elected president. While we have had an African-American candidate elected President of the United States, under-represented minorities are not well-represented in governor’s offices. So we see that, in fact, 2018 was a year of records. But let’s be clear. They were not surprising outcomes. Why do I say that? Well, because they’re not unexpected. You can see these trend lines showing you the number of women in Congress over time and the number of under-represented minorities that have been elected to Congress. We’ve seen a steady uptick in women and minorities elected to Congress and running for office over the past 30 years. Indeed, we’re getting closer and closer to success in executive races as well. So the diversification of Congress is expected. While it is true there was some individual candidates who certainly were surprising, who would have expected prior to the 2018 election that in Eastern Kansas they would elect their first LGBTQI and Native American representative. But setting aside some individual outcomes and looking instead and the trend, I would say to you as a political scientist, we forecasted the outcome we saw this past fall in the congressional races overall. The increasing diversification with an expectation that at the rate that we’re going and in the patterns we’re seeing, we will approach an equilibrium that better matches the demographics of the districts and the states where the candidates run. So that’s not surprising. So why am I talking about the 2018 elections if they weren’t surprising? I’m talking about them because there was one very surprising outcome in the 2018 election and it wasn’t a judicial race, and Harris County Texas, which is Houston, 19 African-American women were elected to county courts. Only one was running for re-election, 18 new African-American women judges. By comparison of all of the county court judges in Texas, all 500 prior to that election, only 19 total were African-American women. This we did not expect and as someone who studies state courts and elections and state courts, I certainly was surprised. So that’s what I’d like to talk about. So what I’d like to talk about is thinking about how do we try to understand the patterns we see in the composition of our courts in the United States? To do that, we really should start by understanding judicial selection and how it works. So judicial selection in the United States is part of the institutional design of our courts. So institutional design is extraordinarily important to the functioning of any institution. Think about the place we’re in right now. Everything ranging from the structure of this building, to how students are admitted and particularly think about this in the case of the law school I’m standing in, the mission of the law school itself decides so much about the work that happens here, the law students that are produced, the scholarship that’s produced, the policy positions that are taken by those who come from this law school. The same of course is true for courts. How we designed courts affects the work the courts do. Now, Judicial scholars, like myself, often turn to studying the courts of other countries in order to try to understand how different features of institutional design effect the work of courts. We do this in part because American courts have a lot in common, both federal and state courts. They’re common law, they’re adversarial, they rely on juries. But while American courts have a lot in common, they do in fact very substantially on one very important factor. That is how do we choose our judges? There’s tremendous variation across the United States and how we pick those who decide cases and represent the courts to the community. In the United States, we have three general ways of picking judges, three categories of ways of picking judges. One is that we rely on the elected branches, executive, and legislative branches perhaps alone not together. Excuse me. We don’t have snow in Nashville, but we have the flu. Excuse me, and use that as a method of picking judges. They’re also merit-based processes, and then finally election as in the case of Harris County. So let’s look at the two systems we have, the federal system and the state system since we’re going to talk about both today. This is a graphic that shows you how judges are chosen in the federal system. I’ll start with the more familiar Article Three process. So in the article three process, you begin with identification of candidates that is completely within the control of the White House. If it’s for lower court judges, it’s in collaboration with state senators and perhaps even in some instances other state federal officials where they identify candidates. A candidate is vetted and the nominated and then goes through a confirmation process at the US Senate. The Article One process is less visible to most individuals, but it represents a substantial portion of federal judges. These are the US magistrate judges and the US Bankruptcy Judges. Almost half of federal trial court judges in the United States are in fact magistrate judges rather than district judges. That process is far more opaque. Judges apply after a position is posted, then reviewed by a selection committee comprised principally of lawyers, three names are forwarded to the Article Three judges in the jurisdiction, and those judges pick the person who will serve. So in the federal system alone, we have two different ways of choosing our judges. Once we move outside the federal judicial system, the changes are pretty significant. So here’s a graphic. I appreciate it’s trying to communicate a lot of information in a histogram. But the process of choosing judges in the states varies dramatically, not just between the states or among the states, but also frankly over time. There’s been a great deal of evolution and momentum behind changing the way we pick judges as we’re constantly trying to improve the judicial system. What you can see from this pattern that’s visible is that election is a central part of choosing judges in most of the states. In the United States, the majority of state trial court judges are elected either by partisan or nonpartisan election, in Texas it’s partisan election. Once you move to the appellate courts, there is some movement away from election to appointment systems that may be merit based or may be entirely within the discretion of the elected branches. But even still because life tenure is not common in the state judicial systems, almost all judges in the United States will face an election at some point in their career, either to get on the bench or at least to stay on the bench. So we see this real variation in the United States that allows us to try to think about how is choosing our jurist impacting who serves as a jurist. Well who does serve as jurist? Sybil talked about this in her remarks and talking about the lack of diversity in the eighth circuit. If we look at the demographics of American courts, we can start with the courts again that are more familiar to people and easier to measure. Let’s start with what we know about Article three courts. So today, or more technically last week, I looked at the numbers on the composition of active judges on Article III courts in the United States. Currently we stand at 34 percent of active federal judges in the United States are women and about 27 percent identify as non-white. Those numbers are positive trend. When Jimmy Carter whom we are going to hear more about I understand at lunch took office, you did not have anything approaching these numbers of women and minorities on the federal bench. So although the first woman was appointed to a federal court in 1928, very few women served until after Jimmy Carter has being appointing large numbers of women to the bench. Okay. So the numbers in Article three courts, we see women represented at about a third, so closer to the 50 percent they represent 50 to 51 percent in the population. Under Article One courts, we have a similar percentage of women not as high, serving on Article One courts but people of color are less well-represented. Only 14 percent of Article One judges identifies as a race other than white. Why is this? Why do we have this difference? That is an interesting question. What does account for the differences that we would see? I have various theories because of the opacity and the selection process for Article One judges it’s harder to test because we can’t see the candidates are that are under consideration but, I’ll just comment there that that’s something I’d like to try to understand better. Alright. So in the federal courts we see some diversification in who serves, the Eighth Circuit’s certainly is not where the courts as a whole are in terms of the representation of women. But nevertheless, we see trends that show diversification across the country. What about with respect to state courts? Why should we turn to state courts? Well, we should turn to state courts to try to understand the representation of women and minorities in the courts for various reasons. The most obvious is that state courts matter. State courts are America’s courts. For most people if they interact with the judicial system, they are interacting with a local state judge and while many people might say I’m going to take my case all the way to the US Supreme Court, everyone in the room knows that ain’t going to happen, right? That the US Supreme Court is not going to hear their case and more significantly, the power, the discretion, lies locally. So state courts matter, they’re very important. But we’ve known very little about state court judges historically. Indeed in certain states you cannot find in a public place a list of all of the judges who serve on the states courts. They protect the information, they make it difficult to identify people even in states where there are elections, so you would think that would be quite easy to track down who serves, it’s extraordinarily difficult in most states in the United States to identify who serves as judicial officers. It’s certainly difficult to determine any biographical characteristics about them. So as Sybil mentioned, my colleague Albert Yoon and I who were startled to discover this just decided that we were going to try to figure out the answer to that question and we began collecting data on those who serve. And for that purpose we produced something we called, after we got the data, the gavel gap because of the gap that existed between the composition of the states and those who served on the court. So if we look at the percentages and the figure, what we know is that women comprise about half of American law students and have been going to law school in large numbers for at least the last 40 years, right? With a particular uptake in the last 30 years. So there are a large number of women in the pipeline in the legal profession but less than one-third of state judges are women and indeed in certain states, there are for every woman in the community right? Fewer than one-third of the bench is represented. Or stated differently, for every three to four women in the community, there is one woman on the bench with West Virginia taking that position with only 17 percent of its bench including women on it. So we can see in these numbers right that women are very underrepresented in state courts. I find this a surprising result in part because we’re familiar with successful outcomes for women candidates and certainly on state supreme courts we see somewhat better numbers. The numbers are similar for people of color, right? So people of color comprise about 39 percent of the population today, but only 17 percent of state trial judges and 20 percent of state appellate court judges. So very few women, very few minorities on the state courts. So although we’ve had women on the bench, right? Since 1928 in the federal courts and 1920 the year the 19th Amendment passed in state courts and we’ve had judges of color for almost the same period of time. We’ve seen very little movement in the representation of women and minorities on state courts. So why does it matter? Why should we care about that representation? Well, there’s a number of reasons. One is just what I mentioned already. I’m sorry, this is casting a large shadow. I want to look at this statistics, we have a web page called the gavel gap that allows you to look up any- It’s the gavelgap.org. You can look up any state and it will give you statistics on that state. It’s an interactive web page that allows you to look up your own state and play around a little bit with the grade that we give them and the representation of minorities. So why do we care about these numbers? Why are they so significant and important to try to understand? So one is as I already mentioned is the significance of state courts, right? So state courts account for 90 percent of the judicial business in the United States, right? So as I mentioned already, for most individuals, state court is court, right? That is going to be their interaction with the legal system is going to be in the form of a state trial quarter entry-level court judge not federal court. Two, in addition to handling a large percentage of the work, state courts are also very importantly the courts that are the dominant player in the criminal justice system and if we think about the work that courts do, we should particularly care about the work they do with respect to criminal justice given the power that reflects at the status exercising, right? So in order to get a sense of the scale of the state criminal justice systems as opposed to the federal justice system with which most of us are generally more familiar and certainly the cases we read are very commonly are coming from those courts. I compare here just federal to California. Now it’s a big state, but it’s just one state and if you look at the numbers of criminal indictments and cases handled through the federal judicial system in the criminal justice system versus the California criminal justice system, right? You’re looking at 75,000 defendants convicted in a year in federal system compared to a quarter of a million in California alone, right? So it’s a verge the state criminal justice system is extremely important and in the criminal justice system judges, trial judges in particular, are extraordinarily important, right? So if you look at the work of the criminal justice system, you can see that when you put in all the players, trial judge, prosecutor, public defenders, juries, right? They all intersect back with the trial judge from the beginning of the process to the end with discretion that casts a shadow over the decision-making of other actors in the system, trial judges are extraordinarily important even to the extent that they’re necessarily having a secondary effect on actors with whom they have less direct interaction. So we should care about who serves on state courts, we should be particularly sensitive to who is serving as state trial court judges because they have so much authority. As I’m sure you’re all aware, trial judges have a great deal of discretion, the standard of review for many of the decisions they make in the criminal justice process is quite differential. There are very few appeals and even fewer successful appeals from the decisions in state trial, criminal trial court. So we should focus and understand who’s serving on those courts because of the significant impact they have. One way to think about this is looking just at the Bureau of Justice Statistics to appreciate the disparity that exist when only 17 percent of trial judges, state trial judges in the United States are people of color. Not only is that not consistent with the 39 percent of representation in the population as a whole, is certainly out of keeping with the defendants who will appear in those courts, where there is an over representation of defendants of color, particularly non-Hispanic African-Americans, and Hispanic Latinx defendants as well, with nevertheless three-quarters of these trial judges as white. So even though the US Supreme Court has found it unconstitutional to have jury selection practices that produce an all white jury, we nevertheless have most criminal defendants facing what is essentially an all white bench. So that’s where we stand or where we stood with respect to the composition of our judicial offices and the process by which we chose those jurist. Let’s go to Texas. So as I mentioned already and I showed the photo, in Texas we had the surprising outcome in Harris County, where Houston is the seat. The outcome that we saw was that 19 African-America women were elected. Eighteen for the first time to the local trial court there. How can we put that in some context to understand why that is a significant outcome. Well one is to look at my gavel gap data. So if we look at the gavel gap data which is from the last time they had elections in Texas for these positions. This was the representation in 2014 of the courts in Texas. So while minorities account for as you can see from this graphic, account for 41 percent of the population of Texas. This is the American Community Survey, it’s a survey done every other year in-between the census based on a sample rather than the full population survey we get with the decanal census. Forty one percent of the population in Texas is minority, and if you add to that, I’m sorry not 41, 51 percent, I’m sorry I can’t see this, I’m trying to look, oh right. Okay. So when we look at our numbers, we have a majority of the population is of color. Nevertheless, only 26 percent of the judges were judges of color and women although much better represented in Texas than many of the states, they’re 10th, Texas is 10th at the time in terms of the representation of women on the bench, almost all of those women were white women. In fact, it had becomes so dire in Texas in terms of the representation of minorities on the bench that in 2016 the Lawyers Committee for Civil Rights under law, brought a voting rights action under Section two against the state of Texas for having statewide elections for appellate judges, on the grounds that it had the effect of discrimination against minorities, pointing in particular to the lack of Latinx members of the appellate courts, notwithstanding the large number of the voting age population 25 percent that is Latinx in Texas. All right. So the numbers looked bad in Texas at the time. So what happened? How did we find ourselves in this position? Well, it wasn’t a trend, so it’s not like what happened in Congress. We didn’t see that every year in Texas there’s been meaningful increase in the number of women of color who were being elected to the bench. In fact prior to the 2018 election, if we look only at the district court judges, I only 23 percent were nonwhite, as compared to the population, majority/minority. So how did they win? So what can you do if what your project is like the Infinity Project is to try to affect who serves? How can you reach that goal? Well, there’s a couple of things. So one variable that clearly made a difference and we talk about this more in my paper on this project, is that in some of the races, both parties put forward female candidates for the judgeships. So the available candidates were more diverse in terms of gender and in fact in many instances both parties put forward a person of color. So once we got past the primary stage to the general election for and these are partisan elections, we were assured of a candidate winning, who was going to be contributing to the greater diversity of the match. So that’s one factor, as who’s being recruited to run for office. A second variable that may have affected the outcome, well it’s what was happening up ticket. So as you may know, we think about judicial elections as low information, low participation elections. So they’re almost always down ballot and there’s very strong data from many races that there’s a tremendous drop off like a cliff, not just a decline. It’s not linear, it’s a drop-off from the top of the ballot to the bottom of the ballot in terms of people voting and participating. So you have very few people voting in judicial elections and they do so with very limited information. Indeed one of the best predictors who’s going to be successful in a judicial election is name recognition that may have nothing to do with knowing the person. So a name that’s familiar, it could be a name of a famous football player in the state, being a Minnesota that would occur to me. In one instance it was the name of a popular cartoon character. So judicial elections are very low information. So it’s very hard to move the needle on judicial outcomes simply through campaigning. I’m not one who’s going to be critical of voters for being uninformed about judicial elections, it’s extraordinarily time-consuming to try to get to know, to get valuable information about across all candidates. So given that it’s low information, low participation, what happens? They appear to have had an unusually high number of party line votes, that’s an option in Texas election, party line votes in Texas that year. At the top of the ballot in the Senate race was a candidate, Beto O’Rourke, that many people wanted to vote for in Harris County. So they’re saying that that could have also been part of the outcome. I would note we did not see a similar result during prior presidential races in Harris County. Notwithstanding also similar mobilization going on. So I think a number of variables are coming into play. The pipeline has not changed dramatically in Texas in general, in terms of the diversity of the bar. So clearly, it was in getting the candidates to come out. One impact is this going to have going forward within Texas. Well, just as with other races, incumbents are very likely to win reelection and judicial elections. So this means that we’ve changed the conversation in Texas. In Texas we will continue to have a more diverse bench because we have more diversity on the bench as a result of this election. Further, we also know that there’s a greater probability of getting to higher court in Texas, appellate court in Texas if you serve as a trial judge, as is true in other jurisdictions as well. What implications outside of Texas? Well, everyone wants to try to learn from Texas. So to the extent there’s interest in trying to understand how you can change the composition of the courts in a particular state. If you have elections, this is going to be a state that we’re going to try to understand, to try to make sense of. I also think the impact outside of Texas as it can demonstrate that in a state where there’s the perception that these are very sticky numbers, indeed the perception was sufficiently great that the Lawyers Committee invested in filing a lawsuit they’re thinking it would not change. This is an opportunity that will continue. So what’s next? I think that’s a great question. What is next? So I’m hoping that your questions will help me know what we should be doing next in our research. [inaudible] track how much time I have to answer? Sure. Okay. Excellent. So what role do you think frustration with the criminal justice system impacted the judicial outcome in Houston County? Because of the notoriety of the disparate treatment of African-American litigants. So I can tell you descriptively that in fact, so if you’re not familiar or so in Harris County, the treatment in terms of bail, pretrial detention, harshness of penalties, treatment of juveniles, disproportionate number of juveniles processed as adults sent to adult level detention centers is notorious but it has been for quite some time. So narratively, I think that that is an explanation potentially. What’s hard statistically or empirically is to see what changed now. So one possibility is, as you know, criminal justice reform has really become a bipartisan issue and I think there’s a lot more energy and investment there and trying to motivate across the spectrum. It’s no longer the case that criminal justice reform is perceived as being a sign of weakness for judges. So I’ll give you an example. There’s been very interesting research done of the effect of elections on judicial behavior. What they find is that as you get closer to an election, judges give longer sentences. It’s really an incredible finding, extraordinarily robust controlling for the characteristics of the defendants and the cases against them that are broad, and then they go back down, or for judges who aren’t running for reelection, they don’t change. So this is a very robust finding because of the perception that it will harm you when you run for reelection if you can be pointed to as weak on crime. I don’t know if that potentially could change as well. So I think this is a great question and I think is certainly part of the narrative. I’m not sure how much independent affected had but I think it was really important. So what are the percentages of men versus women who seek out judgeship? Shouldn’t that impact the statistics? It absolutely should. So when we think about the pipeline, the challenge in terms of trying to understand that as an empirical matter is for appointments, of course, we don’t know exactly. I think more significantly for elections, we haven’t known historically. So I think that is part of what we have to try to understand better. It’s certainly part of why we can forecast that Congress is going to continue to become more diverse because we can see who’s running for office. Even when they don’t win, we know that there in fact is going to be this continue pipeline. What is the goal? What should the numbers look like? So I’m going to just talk here a little bit about what we know about the composition of courts and how that affects the work that courts do. So in research both in the United States and in other countries, we’ve looked at the significance of reputation of a court to its success. So if you think about it, courts are highly leveraged. This is going to get everyone who does corporate law to listen more closely. Courts are highly leveraged. They can’t hear very many disputes so they can only hear a very small number of disputes. So they need everyone else to trust them to reach predictable good outcomes and so they don’t have to hear their disputes. For that to work, you have to have a good reputation and one of the best predictors of the reputation of the court is how well it reflects the composition of the country at the community where it’s located. So my time is up. I really appreciate it. I really look forward to hearing the other discussion. Thank you very much. Let me begin with a word of thanks to Professor George. That was wonderful and Lisa Brabbit, the Dean for External Relations here at the Law School at St. Thomas. One of the reasons I appreciate Professor George’s insightful presentation is that it becomes the perfect backdrop for our next segment which is the Infinity Project, a model for building a candidate pipeline in a sphere of influence. Sybil, thank you very much for your comments that opened as well with your reflections about the Infinity Project. Let me give a little bit more background in terms of the history of the project and where it came from etc. In 2008, when Judge Diana Murphy was participating in a women trailblazers in the law oral history program for the American Bar Association, she got to the point and the chronology of delivering the oral history, where she was asked a question about reflecting on her appointment as a woman, the first woman this, the first woman that, and she paused for a minute. It almost struck her that is something she hadn’t thought about in a while. I’m paraphrasing here. This is not a quote, but she said, “Twenty years ago, I was surprised to be the first and as I sit here today, I’m sort of shocked I’m still the only after two decades.” So shortly thereafter, a group of women got together, myself, Judge Mary Vasaly, Professor Marie Failinger, Debra Fitzpatrick who’s on our panel, and Professor Sally Kenney, who’s done a two-lane, got together and mobilized and decided that we wanted to address the issue in a broader way. Since that time, in the months and the years that followed, many, many others have been instrumental in advancing the mission of the Infinity Project. Men and women, Republicans and Democrats, coming together to have honest conversations about this particular issue. Infinity Project doesn’t mean we all agreed all the time. We did not. When we put strategic plans together, we had disagreement among us but we were able to do it in a very civil, thoughtful way and that in order to the benefit of everybody, not just within the organization but the communities that we were trying to serve. The shared work and the collaboration was very, very rewarding. So over these 12 years, there have been many, many lessons learned and the panelists today, have been part of that process for quite some time. Let me do very brief introductions of our three panelists and then turn it over to them to share what they have brought forward about Canada Pipelines etc. So to my immediate right is Judge Celeste Bremer, Magistrate Judge for the Southern District of Iowa. She joined the bench in 1985, former prosecutor, litigator and corporate counsel. She’s been incredibly instrumental in the efforts of Infinity, and she is a past recipient of the Judge Diana Murphy Legacy Award. She’s wearing her Infinity Tiffany necklace which is the price for that and her bracelet. Thank you. To her right, Lola Velasquez-Aguilu is Minnesota’s newest chair to the Commission on judicial selection. Congratulations Lola. She is past President of the Infinity Project, and currently litigation and investigations counsel at Medtronic. To her right, is Debra Fitzpatrick. She co-directs the Center on Women, Gender and Public Policy at the Humphrey School and serves as the Executive Director for the Infinity Project. She’s been with this effort from the start and has simply been invaluable to the entire process. So let me turn it over with a broad question. Twelve years now, lots of work, lots of effort, lessons learned? Judge Bremer do you want to kick us off? Sure. Set on? Yes. Thank you. I’ve been laboring in this field since 1978. Which was the first time I applied to be a judge and discovered Iowa’s merit selection process and that it might not have been constructed quite as clearly as I would have liked it. So one thing that Infinity has brought to our work is some organization and some structure and some accountability. When we know Deb is going call, then we scurry around and get our work done. But it has introduced us to some data-driven analysis like Professor George, Sally Kenney’s book. If you don’t have this, you need to get this and read it. Because it looks not only at the United States but across the world and it is a work on the side of the head in terms of how you frame this argument and gives you some data. So I’d say the work got to a focus in Iowa because of the loss of three Supreme Court members at the same time on a retention election. Then for seven more years, we didn’t have any women on our Supreme Court. So you can keep identifying the problem but if you can’t move the discussion, it doesn’t matter to keep saying, “Here’s a chart, this is what it looks like.” So Infinity has given us some fidelity to data which has been helpful. Has given us ways to get a statewide focus and get this integrated with the State Bar Association, so it now becomes part of their message and part of their goals.Then we’ve got some very specific initiatives I can talk about later, about media training, which is what Infinity brought to us. Otherwise, we wouldn’t talk to the press, and then how to talk to the press, and what is press today. Sorry Linda, but it’s not always you. So how to do social media to get in on that. Then to improve the system just by shining some light on it. I’ll give Lola the idea, all nominees, their interviews are videotaped and they’re live streamed, and so, we have data. So I’ve gone back and watched three years worth, and then looked at the patterns of the commissions and then explained that to the commissions and to the applicants. So I think now the applicants are much better prepared and the commissions have responded. So- Thank you. How did you turn that? I just brought it really close. Yeah. I think you just have to speak. Can you hear me? Thank you for that. We’re going to drill down in a minute on what happened in Iowa with media training. But first, I want to ask Lola to give her broad level overview and then maybe Lola too you’ve been so instrumental in the boot camps, which is a function that’s been unique to Infinity. Can you speak to that as well? Sure. So first of all as to lessons learned. There’s a multitude of organizations out there, including the Professor we just heard from, who are doing really great work and providing us with incredibly important data. Things like the Gavel Gap report, the Brennan Center, we we couldn’t do the work that we do without them. But, that’s not a space we could occupy or we should occupy. What I learned and saw early on is what we needed to do was really meaningful outreach to potential applicants and to stakeholders. By stakeholders I’m talking about the people who are actually making the decisions. By meaningful, I mean not subtle. What we learned was that you had to be indignant. No one is going to do what you want and get to that place just because you think they should. You have to tell them why aren’t you doing this? You have to be ready to confront the responses. We had to do that in a really aggressive way which makes a lot of people in Minnesota super uncomfortable. Thankfully, I’m not from Minnesota originally. It’s also sometimes a hard look for women. Which makes the job even harder, which also makes it even more important. So we have to be willing to have hard conversations with our senators, with our judges. The fact, again, that we’re seeing better diversity on an Article Three level that in Article One level means that anytime there’s a magistrate vacancy, we need to remind our district court judges that we are paying attention and why it matters to have diverse magistrates. We have to be willing to have those very direct conversations. Now, we were also constantly though in those conversations getting comments about the pipeline. The response being, well, we don’t have the applicants. I knew and we knew that that was not true. We’ve heard already women in particular have been graduating at 50 percent of law school classes for the last 30 years. So there’s a huge pool of women who are out there as lawyers and I knew the same was true for lawyers of color. So two things. One, I didn’t believe that these people weren’t applying and I still think that’s true, they were applying, they’ve always been applying. This isn’t an issue of applicants just not leaning in. But, okay, if that’s the criticism then let’s make sure that the numbers of applicants are overwhelming. I had worked in politics before going to law school and had always been really impressed with the trainings that Emily’s List had done as they were trying to increase the number of women running for political office. So Deb and I sat down for lunch at some point in time and I said we need to do this for judicial applicants. We need to do a training that gives people the practical tools to apply and succeed in applying for the bench, and that means talking about how do you build a resume? If you’re someone who’s only seven years out of law school and this is something you’re going to do in five years, what do you do with the next five years to put yourself in the best position? We need to make sure that you know who the stakeholders are that you should be engaging, how do you build a kitchen cabinet? So these are some of the really practical advice that we were trying to give to these applicants. The other thing that we found, and I can’t stress this enough, and it’s so true for women and for minorities. People needed to be told that they were capable of being on the bench. Unfortunately, so often, folks from underrepresented communities who’ve been underrepresented as they’ve made it to where they sit in that moment, have always had to be the best and excelled the most. We thought we’ve got to check all the boxes before we can move to the next level. Newsflash, a white male counterparts weren’t doing the same thing. So if you wait to check all those boxes, you’re going to miss your chance. We had to tell applicants that message. We had to tap them on the shoulder personally and say, “We think you’re ready.” That was hugely important. These individuals were ready but they didn’t believe it until they heard it. It didn’t even have to come from anybody of influence, it just had to come from somebody outside of their own head space. I think that’s everything, right? I’m going to come back to you and a number of issues in a moment Lola. But thank you. Deb, to you. Then Lola mentioned efforts to tap also decision-makers. Yes. Including folks like Robert Raben and if you’d like to tell a Robert Raben story, that’d be great too. But can you talk about your broad overview and then give a little bit of focus on the efforts to connect with decision-makers, not just here in Minnesota, but in Washington and what that was like and those difficult conversations. I think the other thing we learned is Minnesota’s really uncomfortable about these conversations. Is there anybody here from Nebraska? Because they’re even more uncomfortable about the conversations. So anyway, Deb. Yes, thank you. Thank you Dean Brabbit and Lola and Judge Bremer. It’s been an honor and a privilege to work with all of you for the past 12 years. I do think one of the key learnings from this work over these last 12 years is that as Lola mentioned, there’s a lot we can learn from other sectors and that the kind of barriers that we see in the judicial, the legal realm really are also prevalent in all sectors, right? So when we think of picking judges as essentially a hiring or promotion process, we know that there’s a lot we can learn from efforts to get more women to run for office, but also just how we think about increasing diversity in every sector of our economy. I think that the most important thing is the idea of bringing these three legs of our mission together simultaneously. Like any one of them by itself isn’t quite enough. That this idea that you have to raise the awareness, you have to put some pressure on the decision-making processes as well as decision-makers and then you have to help people step up to the opportunity. So I think the boot camps are really a great illustration of how you could bring all three of those things together. I’ll talk specifically about the decision-maker part, right? Because what we did was we had the decision-makers part of those boot camps. So it required those decision-makers, the merit selection commissioners to come and be in the same space with these people who wanted to think about themselves as potentially applying and it required them to be a little reflective on how are they picking people and why aren’t they seeing the people that are in this space in front of them. So I think that was a really critical part of that. I think again in the awareness part, so that we had a room full of people from under-represented groups for each of these boot camps, it was impossible for those decision-makers to make the argument that there’s not a pool of people who could be stepping up into these positions. Then finally again, as Lola said so well, this was really an opportunity to reach out to people and say, “We think you could be a judge,” and bring them into the space. Can you not hear me? [inaudible]. Sure. Okay, yeah. So again, there was essentially a day long training sessions that we are partnered with affinity bar organizations in the state of Minnesota to again bring together people at various levels of their careers. We had kind of three levels, sometimes two, but basically bringing together people who were part of those affinity bars men and women, to learn from again, we had many decision-makers that were part of those conversations both for federal seats and state seats. I think that pretty much summarizes it. So again, these boot camps did give us this opportunity to do all three of our legs of our mission simultaneously and have been very, very effective. I think as Dean Brabbit mentioned, we also obviously have worked quite a lot at the federal level and those processes vary from state to state and from senator to senator. But I think we’ve also learned a lot about how so as part of these boot camps, we were bringing in the decision-makers from the merit selection commissions, the senatorial commissions that are increasingly being used by elected officials to help them decide who they’re going to nominate for federal seats. So again, the boot camps, we were able to bring those state-level decision-makers, those federal level decision-makers together with people who aspire to be on the bench and for everyone to see the incredible talent that we have in the State of Minnesota that could serve on the bench. Thank you. In Iowa we did boot camps copied right off of out of your book, although with Iowa Women’s Bar Association and Polk County Women Bar Associations which are the two largest women’s bar, worked with the State Bar Association Diversity and Inclusion Committee and a couple other committees there and so I thought it was important to put the gloss on it that this was a state bar association initiative. That this was their idea and that they were going forward. So we did some webinars about the process just to make it easy for anybody to listen to. We did some day long boot camps that had judges who had been through the process, so a Supreme Court Justice and someone who had been a state judge and is now a federal judge and then someone from the governor’s office, not someone who was considering current applicants, just to unbundle behind the scenes pieces of this that they had done either as an applicant or as a sitting commissioner. Then what I’ve done is try to do the training with commissioners to get the lawyers and the citizen members to think about what is our job description? Because they do their interviews and then they immediately vote. I so I’m like, well, what criteria might you be using? For a lot of lawyers, well, it’s being a litigator. Well, nobody tries anything anymore. I mean, you’re not a litigate, you’re a case manager and once in a while you might try a case, once in a while you might get to argue a case, but the majority of what I do is not trial work. So again, to give the commissioners some data, we always have a couple of new judges and older judges come to the commissioner training. So the new judge can say, oh my God, I thought I was going to rule on evidence all day and I have to bring my own post-it notes. I mean, I have to rearrange furniture to have a hearing room, to explain to the Commissioners the real physical limitations of the job, I’m driving for hours to get to a court point. I think that’s part of the reality check where people don’t know that as an applicant like, you have no law clerk. Then I think that gives the citizen commissioners a lot bigger voice, because they are in business or some kind of organizational work and then they can turn to the lawyers or the presiding judge and say, wait, they have to bring their own paper. So that’s not the job we thought we were appointing. So that’s helped to do a little reality check there. Have the boot camps achieved what you hoped they would in terms of what? Tell us a little bit about what you’re hearing from the participants who’ve been through the process. What’s coming full circle? Yeah. The feedback that we got afterwards, I thought, was so interesting. That’s why it really highlighted to me the significance of personal invitations, because people kept saying, “This is something maybe I thought I wanted but I never thought it was real.” They couldn’t vocalize it for themselves and it was so empowering to hear it from somebody else. We have seen a lot of the participants from those organizations continue in their path to the bench and they’ve come back to us. So we’ve continued to support them through mock interviews, or just brainstorming, how to move to the next phase, and I think we’ve just seen great numbers of individuals who participated in our boot camps and going on to join the bench. Now, one thing I will say, the other component to this was attendance was confidential. We started everybody’s boot camps saying, “What happens here, stays here, including who is here.” It was just important because particularly when individuals are coming from an underrepresented community. Imagine, you’re the only lawyer of color in your law firm who’s of a senior ranking. If someone gets wind of the fact that you might be interested in the bench, your work might dry up. So it was really important for people to know that this was a safe space. So we’ve not been in the business of saying, “Yes, we have this person here who is now on the bench, who attended our boot camp,” because we’ve maintained that the confidentiality is so important. Do you want to add to that Deb? No. Just I agree. We also just to cue off of what Judge Bremer said, we did partner with the Women’s Law Section in North Dakota to do a training that included some rural North Dakota folks and some rural Minnesota folks, and had that success as well in terms of those participants stepping up in applying and being appointed. But yes, the confidentiality is key. But also again, the evaluations really were heartbreaking in some ways in that. Many people said, “Aye, this is the first time that I thought that I could really do this thing. So thanks for asking,” and just again driving home. How critically important that recruitment is in this space. I’d say we do offer that in Iowa like on some online mentoring or I’ll meet you wherever you want to meet. If you don’t want to participate in the full group, it’s videotaped. You can watch it. You can be on the webinar. I would say one of the other benefits and the outcomes of preparing for the boot camp was the data of looking across hours of interviews. Well, first of all, we kept track of what questions were asked but there’s a 20-minute interviews. There’s four questions just about, why do you want this job? Why should we pick you? You don’t get very far but you can start to see the patterns in the successful applicants of the personal story and, “Here’s my five things that demonstrate I can do what this court does.” But because the commissioners knew we were doing this and because many times we’ll go because the interviews are in public, it’s the Hawthorne effect. It’s you are being observed and so you change your behavior to respond to who’s observing you. I would say the commissioner’s work has gotten a lot better over the last three years that we’ve been doing this, or at least better as I define it. Iowa on the state commissions do private interviews in private places. I’ve always been very uncomfortable about that, both as an applicant and a commissioner. But now, we have a list because we’ve debriefed applicants. So we have a list of all the questions from the private interviews. We circulate that and so people aren’t taken aback when they get a question that they didn’t think anyone would ever ask. So I think we’ve tightened up the system a little bit. Judge Bremer, I want to stick with you for a minute because Iowa did some unique things around media training. Do you want to elaborate on that a little bit? Well, Deb said, “Do you want to do media training?” We were like, “No,” because nobody wanted to be the one to be out there and be the face of gender fairness on the bench and try to articulate that. As a judge, I’m always trained. You never talk to a reporter and anything you say anywhere is on the record, and you have to be very careful, and there is some thought that even our supposedly merit selection governor appointment isn’t political. Judges involvement in that could be considered political action and that you shouldn’t do it. So I’m like, “Sure. If anyone else wants to do that, that’s a great idea.” But I went to the training and have them the quote from Infinity and what it taught about five or six of us who have sustained this is how to respond to a reporter in a coherent way, how to have some coherent thought about what is the message, and does the message need to change but how to be consistent about, is the issue pipeline, is the issue commission, is the issue appointer and why does that matter to the person who’s going to vote, and who has voted for a senator or a governor, and then just to understand what judges do. So it was also somewhat of an education process for the reporters who came in that, how commission’s work, what step are we at now, why does it matter, and so it helped us get better articles explaining the pipeline, explaining the data that existed so that when they would get quotes, “Well, we just never had any qualified women apply or we appointed R1.” So just explain what’s going on here and then be able to have the reporter ask the next question, “Well, here’s our list of graduates.” Well, and Deb, can you then elaborate on how that media training and the attention was one other tool on toolbox and stakeholder influence, and where did it go from there? Do what happened on North Dakota as an example? Oh, sure. Yeah. I was going to actually talk about Minnesota. We, through again, started building relationships with reporters and opinion writers at the Star Tribune and have gotten, I think over the course of our history, four op-eds in the Star Tribune on this issue of appointment of federal judges. I think it has been a really important opportunity to, again, shed light on how these processes work, and to let the decision makers know that somebody is paying attention to, again, what is the makeup of the bench that these appointments are related to. That somebody is paying attention to who is going to be chosen, who’s going to be nominated, and who’s was going to eventually end up in those seats. So again, I think that is just an important part of the, you need to shine light on the process, and the media has been an important part of that because there is this delicate balance about whether this is political or not. I think one of the learnings I would say over the 12 years is that it is at least little p, politics. Every process has some little p politics to it. So I think that, again, making sure that the public is aware, and its particularly opinion leaders who may read the Star Tribune opinion page. That that is critically important part of making sure that we are encouraging decision-makers to do fair processes, and that they will be held on some level accountable for what comes out of those processes. Well, and I think it’s this continuing conversation because it’s not like since infinity started we now have eight or nine women on the eighth circuit or that was until this year that we got another woman back on the Iowa Supreme Court. There was another vacancy in there, another two coming up, and I think someone might have just checked that off the to-do list, and now we can just go back to what we used to do. So it’s being in it for the long haul and telling law students, because it’s not too early to start, you have to be political. You have to be the person that can call the senator or that can call the governor, and you have to be the person that the pointer will return your call. So it isn’t like, “Oh, that’s icky.” That’s politics, that’s life, and so whether you can participate in that form of life, which I can’t, but you know people who can, and any federal judge will tell you or Judge Richard Arnold used to say, “It might surprise you to know that my brother is a political appointee.” They were both on the circuit, and that’s how it works. So don’t think, I can’t do that. Yes you can, and it goes back to telling somebody, get your face out there and do it, and come back for more. Well, what do you say to people who when you reach out and you recruit, and you’re taking them to this process and they say, “But I’m not political, this isn’t how I operate?” How do you break that down for them so that they don’t see that as a barrier to moving forward? Well, I mean interestingly I think because of the way the federal process has changed over time, I think most people believe if they’re interested in a position as an article three-judge, that being apolitical is an asset. So then the question is how do you leverage your political friends? This is where I think infinity could be helpful because I say we still, although I’ve cycled off out of board now. But, because infinity is a nonpartisan organization and has credibility with both parties, it’s an important organization to engage if you’re someone who, for example, is going to be named or nominated for a Federal District Court position. So for someone who’s interested in the Federal Bench, I think it’s a matter of also figuring out who can help you identify the stakeholders, and who can you leverage to assist you. It’s different at the state court level because politics just isn’t yet as much of a role as it is with the Federal Bench. And yet we’ve worked hard to have leverage as a group, right? As a voice. As a voice. Can you take that now to how does this group have a voice for this issue? What does that outreach look like? I have an answer. Wonderful. It comes from Sally Kenney’s work, and this again was somewhat of a whack on the side of the head, is don’t argue for difference. Argue that I’m entitled as my right as a citizen to be on the bench just like I’m entitled to serve on a jury. For crying out loud, you wouldn’t strike all the women from a jury. So how can you get away with putting up so many artificial thresholds that they get winnowed out of the process? Then ask what justifies exclusion of women from the bench. So reverse the burden of proof. It’s not my job to show I bring anything with my chromosomes but it’s why does this look like this? Then make the case that exclusion stigmatizes, that when you’re left out of the room, and things happen in the room, that it’s perceived that I don’t need to be there. Then just point out that discrimination is wrong. So this is something every citizen can do in every avenue of their lives, and law students have a big megaphone, and they know how to use social media. So I think that’s a huge leverage. So the other thing is what are the criteria for selection? Because we’ve always done it this way or because it’s always been a bar leader or it’s always been somebody or other. We always get behind geographic representation. Going back to what if the eighth circle was only judges from Iowa? I’d be okay, but people would say, “Well, how did that happen? That’s just weird.” That just couldn’t happen by accident. Similarly, when it’s all men except for one, that can’t happen by accident. That’s not an accident. That’s not random. It’s not the lotto. So even if we can’t change it this week, we can continue to shine a light on it. Thank you. In the time, we have a few one, two minutes remaining, and just a question from the audience which is really is there an ideal time, I’m going to modify this a little bit, is there an ideal time in your career to come forward on this path? It’s an interesting way to have ordered the question because I don’t think, if the question is to come forward on the path, and that means is there an ideal time to start thinking about applying in the future. Then I think the answer is, it’s never too early. If the question is, when is an ideal time to apply? The answer is no. I think that trying to get on the bench is not an easy thing to do, and I often find people who will get discouraged because they think that they’ve applied once and they didn’t get it, and then they did whatever thing they thought was holding them back, and then they didn’t get it again. Because the news flash, it is a moving target, right? Every time it’s not like the needs of the bench stay the same every single time. So, all you can really do is make sure you are doing what you need to do to be the best lawyer, to get the right experience, to build the right community of support around you. But, if you’re saying things like, well, I need to do five trials versus three trials. That’s the wrong question, okay? That’s where you’re looking at, am I just checking boxes? I need to have both done, trial work and corporate work, and once I’ve done those things then I’ll be ready. Once I’ve achieved this level of clientele, then I’ll be ready. That’s the wrong way to look at it. I think you have to look at it in terms of, what are the qualities and characteristics that make for a good judge? What have you achieved and attained those things? There’s different things like experiences that lead to the development of those qualities and characteristics. But again, if the question is, when is the ideal time to start thinking about the bench as a possible career? I mean, it’s as early as when you’re in law school because, and I don’t mean that to say that you should do things with the specific goal of someday getting on the bench. But if you drive your career in a way that builds the experiences and the characteristics and qualities that we look for, it’s going to serve you well no matter what. I want to thank my three dear friends and colleagues, not just for their comments today, but for their continued effort to move this issue forward and really being committed to it for the long-term. So, would you join me please in giving them a warm round of thanks. Thank you. Welcome back from break everyone. So, there is a small typo in today’s program. This panel will run until 11:45, not 10:45. So, we’ll have plenty of time to hear from our panelists. So, we’ve just heard about the judicial selection process in the state courts, and the methods of building a candidate pipeline in the sphere of influence. But now the question turns to the meat and potatoes of any public positions selection process in the modern United States of America, the role of special interest groups. For three perspectives on the role of these interest groups in judicial selection process, we’ll first hear from Ilya Shapiro, Lena Zwarensteyn and Kim Askew, each in turn, and then Laura Provinzino will lead a panel discussion amongst the group as a whole. Our first speaker, Mr. Ilya Shapiro is the Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. The Cato Institute is a public policy research organization dedicated to the principles of individual liberty, limited government, free markets and peace. Mr. Shapiro lectures regularly on behalf of the Federalist Society. He clerked for judge E. Grady Jolly of the US Court of Appeals for the fifth circuit. Mr. Shapiro earned his JD from the University of Chicago Law School. Our second speaker, Ms. Lena Zwarensteyn is that fair courts Campaign director at The Leadership Conference Education Fund. The Leadership Conference Education Fund is a national coalition charged with promoting and protecting civil and human rights with the goal of a more open and just society. Mrs. Zwarensteyn previously served as the Director of Strategic Engagement at the American Constitution Society. She began her career as a public policy associate at the Planned Parenthood Federation of America. Ms. Zwarensteyn earned her JD from Michigan State University College of Law. Our final speaker, Ms. Kim Askew is a partner at K&L Gates in Dallas, practicing primarily in complex commercial litigation. As a longtime leader in the American Bar Association Standing Committee on the federal judiciary, while the ABA is not direct advocacy organization, they weigh the qualifications of judicial nominees and give radiance on the professional qualification of these nominees. We will appreciate her discussion of the ABA process. She clerked for former Chief Judge Jerry Buckmire of the US District Court, Northern District of Texas. Ms. Askew earned her JD from Georgetown University Law Center. Moderating the panel discussion will be Ms. Provinzino who is AUSA and chief of major crimes and priority prosecution at the United States Attorney’s Office in Minneapolis. Stemming from her clerkship and friendship with the late Honorable Diana E. Murphy, Ms. Provinzino is especially excited to be a part of this presentation today as the immediate past president of the Infinity Project. She clerked with judge Diana E. Murphy at the US Court of Appeals for the Eighth Circuit. Ms. Provinzino earned her JD from Yale Law School. Again, the panel will be taking questions from the audience. So, if you have a question, please fill out the little note card on your table and raise it in the air and one of our assistance law students will come and pick it up from you. All right, thank you. Thank you so much for the nice introductions. Just as Alex said, I’m really excited to be here as a former clerk of Judge Murphy, bringing together I think her legacy, both her commitment to this law school and to excellence on the Eighth Circuit Court of Appeals. So, each of the panelists will have 10 to 15 minutes to give their opening statements. Then we hope to be very interactive. I’ll have a few questions and engage them in discussion. But we’re very excited to incorporate all of the questions you have. So, make sure you’re thinking and writing down as we go along. So, Ilya Shapiro kick us off. Great. So, we’re talking about the role of interest groups. I don’t really have many organized thoughts about this in terms of my perspective. I comment on nominations that are made, I want to have strong originalists and textualists who will decide constitutional and statutory issues in certain ways. Occasionally, I might recommend someone or second a recommendation to the White House council’s office or the office of legal policy or something like that. But that’s about it. It’s not like there are smoky backfield rooms where all of us interest groups, first on the right when it’s the administration or those on the left then when it’s another administration get together and hash all of this out, it’s nothing close to that. But I want to step back and because I think we’re going to talk more about that in the interactive portion. I want to step back and contextualize our current political moment if you will, surrounding federal judicial nominations. The battle to confirm Brett Kavanaugh showed that the Supreme Court and the federal judiciary is now part of the same toxic cloud that’s involved in all of the nation’s public discourse, and ironically, Kavanaugh was picked in part because he was thought to be one of the safest picks with a long public career that had been vetted numerous times, firmly part of the legal establishment on the conservative side, and had displayed a political caginess that actually made some on the right worried that he was too much like John Roberts or rather than Antonin Scalia Clarence Thomas. As it turned out of course, 11th hour sexual assault allegations transformed what was already a contentious process into essentially a Partisan Rorschach Test, and all told, Kavanaugh faced a smear campaign unlike any other since Clarence Thomas. Now, confirmation processes weren’t always like this. In fact, the Senate didn’t even hold hearings on supreme court nominees until 1916, and that was driven by the unusual circumstance of a justice resigning to run against the sitting president, and the replacement who was chosen was the first Jew, Brandeis. It wouldn’t be until 1938 when a nominee testified a zone hearing and that was Felix Frankfurter. In 1962, Byron White’s hearing lasted about an hour and a half of which Justice White himself appeared for about 15 minutes mostly answering questions about his football playing career very different than what we now have. Now, this isn’t to say that it wasn’t until the advent of television or let alone social media that nominations became politically fraught for the republics first-century confirmation battles including withdrawn nominees and those who were tabled or not acted upon were a fairly regular occurrence. George Washington himself had achieved justice nominee rejected. James Madison did as well. John Quincy Adams who himself had declined a nomination from Madison had a nominee, “postponed indefinitely” like Merrick Garland. Anyway, it goes on and on. Most 19th century presidents had trouble filling seats on the high court, and in the 20th century, presidents Harding Hoover, Eisenhower, Johnson Nixon and Reagan, all had nominees rejected. Fdr never had anyone rejected, but his court packing scheme certainly was both in Congress and at the poles, and Johnson’s proposed elevation of justice Fortas led to the only successful filibuster of a Supreme Court nominee, and that was a bi-partisan filibuster, and Fortas didn’t even have a majority let alone a filibuster busting supermajority. Of course, Douglas Ginsburg withdrew before President Reagan could send his name to the Senate. I call him the l last public casualty of the Drug War. Think about it, what other public official has suffered a career loss because it turns out that he smoke marijuana. So even Marion Barry ma a comeback, and that was a much worse situation. Then of course, there’s Garland, who’s the first nominee on whom the senate took no action since 1881. Now, this seemed like unprecedented obstructionism. But, as we’ve seen, plenty of nominees have never gotten hearings or votes. The last time that the Senate confirmed nominee made by a president of the opposing party to a vacancy arising during the presidential election year, doesn’t happen very often, the last time that it was done was 1888. So, just like the Senate could decline to take up a bill passed by the house, or a treaty signed by the president, it could surely decide how to exercise its power of advice and consent. Indeed, Democratic senators have said as much, both Joe Biden, when he was Judiciary Committee Chairman in the ’90s, and Chuck Schumer in 2007. Now, this was purely a political matter, with the Senate stocking out how it would exercise its prerogative, and the voters being the ultimate judges. Indeed the Senate could decide not to confirm any nominee at all, and I assume that would not work after a while, there would be a political price for doing so. But in this case, Mitch McConnell’s gamble worked. Not only did it not hurt vulnerable senators in the 2016 election, but it kept the Republicans together, and frankly provided the margin for Donald Trump in key states. Of course, Trump rewarded that part of his electoral coalition with the nomination of Neil Gorsuch, who was confirmed on a party line vote after the Senate decided to exercise the nuclear option, and removed filibusters, which expectedly brought back the process to what it had been 15 years earlier. Because, Harry Reid was the first use of the partisan filibuster to block judicial nominees starting in 2003, until he removed that in 2013. So, opportunities for obstruction have also continued, pushed down to arcane parliamentary processes like the blue slip and cloture votes, we can talk about that if you want. But control of the Senate remains, by far, the most important aspect of the whole endeavor. More significantly, by filibuster and Gorsuch, Democrats destroyed their leverage over future more consequential vacancies. I don’t think it’s clear at all. In fact, I think it’s not the case, that moderate Republican senators would have gone along with the nuclear option to sit Kavanaugh in place of Anthony Kennedy. But they didn’t face that dilemma. They won’t face it if President Trump has the opportunity to replace Justice Ginsburg O’brien, which was a much even more consequential change on the court. But given the battles that we saw over Gorsuch and Kavanaugh, too many people now see the court or the judiciary more broadly in partisan terms. That’s too bad, that’s not a healthy thing. But it’s not a surprise when we see the confluence of longstanding trends, where ever divergent theories of constitutional statutory interpretation, map onto party affiliations, and the parties themselves are more ideologically sorted than they’ve ever been. So, it’s no surprise, that nominations are a fraud. Why all the focus on judicial office? We don’t see battles like this over even Attorney General nominees, or secretary of state, or what have you. Well, it’s because a president has few constitutional powers, certainly domestically, more important than making judicial appointments. Justice Scalia served 30 years on the High Court, acting as a bridge to the 21st century for President Reagan’s legal agenda. Three years ago, there was a big ruling on non-profit donor disclosures; a lot of us are involved with non-profit organizations, want to keep our donor lists private. Three years ago, a district judge appointed by Lyndon Johnson, made a ruling on that issue. When I talk to law students, “That might as well be Andrew Johnson. Ancient history.” Right? So, judges continue to have an effect for a very long time. That goes just as much or more, for the lower courts, which after all decides 50,000 cases to the Supreme Court, 65 or so, after argument. A president in one four-year term, appoints about 20 percent of the federal judiciary to give it a different perspective. When President Obama took office, one of the 13 federal circuits had a majority of democratic appointees; the Ninth Circuit. For historical reasons by the way, not geographical. I have a law review article coming out, talking about the dynamics of the Ninth Circuit, and why it should be split for judicial administrability reasons. When Obama left office, nine of the 13 had majority Democratic appointees. So, even if politics has always been part of the process, and even if more judges were rejected in our country’s first century than its second, we still feel that something is different now. Confirmation hearings are the only time that judges go toe-to-toe with politicians. That’s definitely a different gauntlet than what President Tyler’s nominees ran. Tyler made six nominations, only two of them were successful. So, is it about TV and Twitter, or legal issues have become more ideological? I don’t think so. I don’t really think there’s been a perversion of the nomination process, or more demagogic political rhetoric, or even the novel use of filibusters. I think it’s really a symptom of two larger phenomena. First, as government has grown, so have the laws over which the courts have power and more impact on public policy. Second, judges are now appointed for jurisprudence, and political philosophy, and judicial philosophy, more than cronyism and party loyalty. That makes things very different. It crystallizes the differences. So, is there anything we can do to fix this dynamic, to turn down the political heat? Reform proposals are bound. We can discuss them if you like. Term limits, changing the size of the court. By the way, expanding the court isn’t necessarily a partisan thing, you could imagine if you’re crafting a court from scratch, you might want, say 19 members, because then each individual seat might be less consequential, and you presumably have fewer 10 to nine rulings than five to four. But how do you get there from here to there? There’s a huge transition problem there, as well as setting new rules for the confirmation process. Other scholars have lately proposed really radical things like having a college of justices if you will, where circuit judges are picked at random to serve on the High Court for a while and they rotate through. Lots of innovations. But, I think this is all rearranging deck chairs on the ship of state. That’s not the judicial confirmation, but the ship of government. That is the problem, is the politicisation, not of the nomination process, but of the product. I think the measure of the extent to which the Supreme Court gets detoxified, will be the extent to which it plays a role in re-balancing our constitutional order. Curbing executive branch overreach, putting the ball back in Congress’s court, and returning power back to the States. After all, separation of powers and federalism exists not as dry Madisonian theory, but ultimately as a means for protecting that individual liberty for which we have the constitution and judicial review, and all that in the first place. That’s the framer’s brilliant best stab on how to solve the internal problem of empowering government to secure liberty, while making sure it checks itself. I believe so much in that Madisonian vision. If men were angels right, all that, that my license plate is fed 51, which, some people think as I pass them, that it means I’m an FBI agent. Not the case. Just really nerdy. So, the reason we have, and I’ll conclude with this, the reason we have these court battles is that the government is making too many decisions at a national level. There’s no more reason for a one size fits all healthcare system for example, then that zoning laws be uniform in all cities around the country. So, I say let federal legislators, not regulators, and make the hard calls about truly national issues like national defense, or actually interstate, actually commerce. But let states and localities make most of the decisions that affect our daily lives. Call it federalism, or actually call it subsidiarity. If any of you are Euro or Catholic acolytes, you’re familiar with this idea that you make decision-making at the most local levels. Let Texas be Texas, and California be California, and Minnesota be Minnesota. That’s ultimately the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or the Marble Palace of the High Court; highest court in the land. Depoliticizing the judiciary, and toning down confirmations, are certainly laudable goals. But that’ll happen only when judges go back to judging, rather than ratifying the other branches accesses and differing to everyone, and ignoring federalism. Until that time, I think it’s absolutely appropriate for senators to question judicial philosophies, and theories of constitutional interpretation, and for senators and citizens to vote accordingly. Thanks. Thank you Ellia. We have Lena Zwarensteyn at the end there. Thank you all so much for being here and I really want to give a special thank you to the University of St. Thomas Law Journal for pulling this together as well as the Infinity Project. I am a big fan of the Infinity Project, and if we could expand it to every circuit, I will do what I can to try to make sure that that happens because I think that the work you all do is absolutely incredible. So as mentioned, I’m Lena Zwarensteyn. I’m the Fair Courts Campaign Director at The Leadership Conference Education Fund and our sister organization, the Leadership Conference on Civil and Human Rights. We’re a coalition of more than 200 member organizations that are really working together to make an America as good as its ideals. In my role, what I do is especially around the issue of Fair Courts, is try to put together a cohesive and maybe be a little bit of the conductor of the orchestra that is the Civil and Human Rights Community. Our founders envisioned a contrary and government institutions that would over time make a more perfect union, and so presidents, congresses, judges, and all of us have really pressed time and time again to make it more perfect, and that’s why I am honored to have the role I have at the Leadership Conference. I’ll discuss a little bit about one, what we do at the Leadership conference in our coalition, why we care about the courts, the decision-making process which has been discussed a little bit already, areas for input, general trends that we’re seeing especially in the past two years. We talk about how it’d be great if maybe or at least Ellia did, that judges weren’t so political maybe in their decision-making. But I do think it really makes a difference who we put on the bench to begin with, and then what we’re doing about it. So why do we care at the Leadership Conference about fair courts? We know it’s a priority because we have to protect the courts. We fought long battles in Congress and throughout the courts to recognize our fundamental, civil, and human rights from education, tribal rights, disability rights, access to health care, voting rights, marriage equality, affordable housing, immigrant justice, rights for working people, and so on. We know so often that the courts have been a backstop for us in seminal cases such as Brown versus Board of Education, Roe versus Wade, Miranda versus Arizona. But more recently, we’ve really noticed that the importance of the courts in preserving basic rule of law has really come into sharp relief, from everything, from the Muslim ban, to sanctuary cities, to voting rights. We really do have a long way to go when it comes to recognizing our civil and human rights. But if the courts are stacked against us, those who are coming maybe perhaps from the most extreme corners of the legal community, then all of those victories that we’ve had over the years and the ones that we have yet to actually achieve are all in jeopardy. So we’re already seen this. The courts have been ruling more and more for the interests of the wealthy and powerful. I know we’re going to hear a little bit more from Senator Whitehouse later today in his video remarks. He’s been steadfast champion for really exposing just how much corporations and money has influenced the entire judicial selection process, whose writing Amicus Brief to the Supreme Court and who’s paying them to do them and so on, and really recognizing that there is a trajectory in terms of rolling back civil and human rights so that the wealthy and the powerful and corporations have more power. But we also have Supreme Court decisions that have really shown just that sharp relief. We have Shelby County versus Holder, a five-four decision that really gutted many critical portions of the Voting Rights Act. We had a Hugh Stead, which was another five-four decision that said that justified Ohio’s Voter Purge, which really rendered a number of people unable to actually access the ballot box. We had Janus versus AFSCME, a critical, another five-four decision which overturned 40 years of precedent that severely restricts the ability of labor unions to collect fees and be able to organize. This is really by design. I know Ellia mentioned that there’s not a lot of smoke rooms or where a lot of this is being discussed, but really this is a decades long, a pattern and practiced by the Federalist Society and others such as the Heritage Foundation in order to make sure that there is this very stacked pipeline of people who are willing to perhaps rule in these areas. Not to say that they always will, but they’re more likely to do so. We need to be making sure that we’re doing, at least in the leadership conference, do everything we can to make sure that those courts are protected, that we’re doing what we want to do in terms of having a proactive vision for the judiciary. Because we want this more perfect union and we don’t want to retreat on progress we’ve made, we advocate for judges who are fair, independent, impartial fact finders, representative of the communities in which they’d be serving, representative of a diverse legal practice in that professional diversity, and they recognize the importance of civil and human rights. So most of my work does focus on the federal courts, and so that’s where I’m going to be putting a lot of my time. But when it comes to judicial selection, when it comes to who gets poised to even be on the Federal Courts, but who really is making the decisions. I don’t want to understate the importance of the State Courts because they are, as Professor George already mentioned, deciding majority of the cases and it’s usually that’s where people have interactions with the court system. But what we do at the leadership conference, we do try to work with decision-makers. I think it’s really important that we actually are engaged in this process. So the Constitution Article II Section 2, leaves it up to the president to appoint but the senate to provide “Advice and consent on these nominees,” and these are lifetime appointments. Rightly, many senators consider this to be one of their most fundamental duties that they do. I have as a senator beside perhaps declaring war, judges can serve for decades. It’s very difficult by design because we wanted to have an independent judiciary. This is what the founders do, to remove judges, to have somebody removed from office is rare and it’s an exceedingly high standard. So we need to make sure we get it right on the front end. So the lifetime of a nomination, Professor George laid it out really well on her points. But I wanted to discuss some of the input points. So ideally, every senator really does is not only see their role in terms of how they vote on a judicial nominee really, really important, but who they’re putting on the bench in the first place, in the jurisdictions where they have control, and that’s for both the District Court and circuit court. So Ellia talked a lot about the Supreme Court. Happy to share a lot of stories throughout this most recent Kavanaugh battle. But I really want to focus a little bit more on the district court and circuit courts because that’s where majority of the decisions are being made. That’s where the senators have insignificant role. So it’s really become a lot of tradition, and White House has worked with Senators so that they know because of that Article II Section 2, that the president appoints, the Senate confirms and provides that advice and consent, that they actually do work together. But how that’s done has evolved, and I’m excited to hear even more. I did think President Carter really recognize and understood very early on that our Federal Courts were not reflective of America. So really implored Senators to put together blue ribbon panels and merit-based selection commissions in order to ideally find people who would be more apt to serve on the bench. When you have senators primarily. With the default as white and male, they’re probably surrounding themselves with people who look similar to them. So it was important to have community members to come together, often from the legal community, in order to select and try to diversify more people who serve on the bench. Now, a lot of progress has yet to be made. Unfortunately, we are regressing on a lot of that progress, but I think it’s important to note that those commissions and we’ve talked a lot about them so I’m not going to belabor them too much, but they are really representative of the community and the various aspects of the legal community in the different types of processes that people have. But when it comes to what the Senate does, home state senators have a lot of deference especially when it comes to who they select for the District Court seats. Each senator does it a little differently and it feels like they do it a little differently each time that there’s a vacancy that comes up and I’m happy to talk about those. There’s different models that different states used. But here in Minnesota, there is a bi-partisan selection commission which I applaud because I think that that’s a really great way to get the community involved and to have more intentionality about who serves on the bench. It’s less so, some senators do have their selection committees review circuit court nominees. I applaud them for doing that because I think that there is a reason why your commission which should review those persons qualifications, that happens often in the Seventh Circuit in Wisconsin. In Ninth Circuit in Oregon, they’ve done a lot of that and other commissions as well and other states. But it’s vital that there’s these safeguards because otherwise, really, it might not be that smoke-filled room but you could rely on one person or one organization to really influence that selection, who gets put on the bench to begin with. We know that President Trump, who just taken recently, well not that recently, but he campaigned throughout with a Supreme Court shortlist. To basically, what I think was show up his conservative bona fides because he knew that the courts were so important to him. It was the first time someone has done that with a list of people that they would promise to put on the bench. The reason why I believe that a lot of people really believed in and President Trump at that time as a candidate was because the Federalist Society and Heritage Foundation hand selected these people. He also discussed litmus test, that these people would overturn Roe versus Wade or devastate the Affordable Care Act, and so on. So that’s something that I think when we’re talking about how we did depoliticize the bench or at least the selection process, that only further splinters, I think, what we’re doing and it really does go to show that basically, a few people have a significant amount of power over who’s actually chosen. So it’s vital whoever is doing the selecting whether that is commissions, senators, ideally those who are in White House Council and the Office of Legal Policy at the Department of Justice, to look for people who are competent, have the judicial temperament for the job, are impartial, someone we all can believe could be fair and unbiased, and that there really is demographic diversity from race, ethnicity, LGBTQIA status, women, as well as professional diversity. We need to have more public defenders on the bench in order for there to be more just judiciary. There needs to be more reflective legal aid attorneys who serve on the bench, and so on, and so forth. But the trends that we’re seeing right now are not leading us in that direction unfortunately for the past two years. We’ve seen both the types of nominees that have been selected but also the breakdown in the entire process. We often hear that elections have consequences, I think that’s the argument that I hear the most. They sure do but that doesn’t mean our judiciary should be changed at the whim of a president here on every single two years, four years, six years, depending on which election you’re talking about. If we go and really feed into this to the winner goes as spoils, then it really degrades the independence of the judiciary, the way that we all believe that the judiciary should be an independent institution, something that we can all look up to. But this is something that I think Mitch McConnell has very, the Senate Majority Leader has on his mind. He doesn’t care so much to the winner. In his mind himself, go all of the spoils. So earlier I mentioned that complete denial of Merrick Garland giving him a hearing and Mitch McConnell has said that that is his proudest moment was when he looked in President Obama’s eyes and told him he would not get his Supreme Court picked. That is appalling. You can vote down a nominee but to not even give a president who was duly elected, the opportunity to have his nominee for the highest court even considered, is really a step too far. But really, it was the tip of the iceberg. Mitch McConnell was stalling a lower court nominees. Only 22 judges were confirmed in President Obama’s final two years in hopes that if a Republican president won, they could fill the bench. So the trends in the nominees that we’re seeing right now predominantly White, 93 percent of those who have been confirmed to the circuit courts so far and that’s out of 31 as of this week are White. Zero have been Black or Latino. Eighty percent are male of those who’ve been confirmed to the circuit courts. They’re very young. But to the point Eliot was mentioning it’s ideology and I think that’s where, at least, at the leadership conference we have the most issue. People, nominees are being nominated who have said things such as it being transgender children are evidence that Satan’s plan is working. People who are the go-to lawyers for the NRA, people who defend and are the lead lawyers on a lot of the xenophobic policy defenses at such as the Muslim ban or challenges to the citizenship question on the census, and those who really wish to challenge tribal rights. Many nominees coming before the Senate Judiciary Committee refuse to even say whether or not Brown versus Board of Education was correctly decided. Presumably because we think that perhaps that ruling is in jeopardy. That’s troubling. I will applaud Senator Smith when she was first elected, she had the hard task of voting on the Eighth Circuit nominee who actually unfortunately was replacing Judge Murphy, David Strauss. In her defense, when she’d unfortunately did not get a blue slip that was a whole big fight, I know, here in Minnesota. She really took that decision-making very seriously and said when, then justice now judge, Strauss was unable to come with a defense to why Brown versus Board of Education was correctly decided even through textualists or originalist approaches, she found that concerning and so certainly do we. So President Trump’s already filled about 20 percent of the circuit court seats. He’s had 86 lifetime appointments already confirmed in the Eighth Circuit. I’ll note out of the year 11 active judges, four have been nominated and confirmed now who were nominated by President Trump. Two of them had been rated by the ABA Standing Committee on the federal judiciary at some level of being not qualified, all have been White men and that leaves unfortunately Judge Jane Kelly to be the only woman on the entire Eighth Circuit right now. So the Infinity Project’s work really couldn’t even be more instrumental at this time. I think when we were talking about rollbacks to progress, this is one. We could have had another woman on the bench had President Obama’s nominee to the Eighth Circuit in North Dakota seat, Jennifer Puhl even gotten any consideration or confirmed. But instead, President Trump got to nominate and the Senate confirmed Ralph Erickson to that very seat. But the vetting process has become embarrassing and I’m just going to roll through some of this very quickly. There had been no omissions on Senate Judiciary Committee questionnaires from blog posts that are anonymous from defending the early KKK to forgetting to put that your wife happens to be the Chief of Staff to the White House counsel’s office which could create a conflict of interest, an embarrassing lack of experience that I got put around on viral video. I know, more people have been rated not qualified by the ABA Standing Committee on the federal judiciary than previously, the Senate Judiciary Committee’s has immiserated its own norms, those are those blue slips which are literal blue pieces of paper that senators submit to say they you approve or disapprove of a nominee. This week, we had the first time in history a nominee has been confirmed over objection of both of his home state senators. Previous to the Trump administration, there had only been three nominees confirmed over objection of one home state senator. That number is far gone because the Trump administration has done this but this week is monumental because Senators Cantwell as well as Murray from the state of Washington were basically steam rolled by this entire process and now we’re going to have a Ninth Circuit nominee, and there’s more poised to the Ninth Circuit California nominees, there are three who’ve been nominated over objections of the California senators. We’ve also seen stacked hearings with controversial nominees. Hearings during recess, the nominee I mentioned, that was confirmed earlier this week had only two senators ask him a question because they decided to schedule the hearing during a recess. That’s appalling and they’re also putting nominees into hearings before their ABA review which has important data to review or even in. There’s now debates about reducing the amount of time we can debate on nominees. But what can we do? So I will be completely frank, resources are asymmetrical. When it comes to the civil and human rights community, the progressive community, that funding is not necessarily there to be able to wage the types of fights that we want to be having. But we know that a lot of money flooded into hold open the seat when Justice Scalia died so that Merrick Garland couldn’t even get a hearing. Millions of dollars were spent for that. But it’s vital that what we do is that we connect people to the courts to the issues that they care about. We impress upon them the importance of that. I am a firm believer in asking people and this is why I love the Infinity project and what a lot of you are doing. Ask people to consider becoming judges early in their career because we only get good out if we put good in and we want to model that and we want to mentor that, and so we need to continue to do that. We have a lot of education to do. RC4 organization does do a lot of work to campaign on specific, sometimes supporting in previous administrations in particular. But in these days most likely a defeating nominees because they are hostile to civil rights. But we also talk to senators about their process and encouraging them in terms of best practices. What to look for when they’re selecting judges. So there’s a lot of work to do and I’ll leave it there because I know I’m excited to hear from Kim next. Thank you. Good morning. I am quite excited to be here. I really thought a lot about whether I would come to Minnesota, and what I still consider winter, when you’re from Texas this is winter, it was 60 degrees on Wednesday. When I left yesterday I thought oh, it’s going to be a little cold. But I’m here because I was just so very impressed with this project, with what the University of St. Thomas is doing, the Law Review. Of course, the Infinity project which is very well known. We are at a very important time in our democracy with respect to the selection of federal judges. So having worked for so long in that process for the American Bar Association, I come today not as a special interest group or an interest group, but as the American Bar Association. The 400,000 lawyer member, the largest Bar Association in the world, certainly the largest in the United States, to talk about what the ABA actually does as part of the valuation process with respect to federal judges. All federal courts the law, all Article Three Courts and of course Article Four Courts with respect to the territorial district courts. I have been to Guam. I have been to the Virgin Islands evaluating nominees to those courts. This is very important work, and what the ABA does is a little bit different. We are not an interest group. We don’t come to the process to express a view on the ideology, the political affiliations of anybody that’s nominated to the process. It has been very interesting to hear the well-considered comments of my peers on the panel today. I won’t tell you what l agree or disagree with, because I’m here speaking for the ABA today, and most importantly, the Standing Committee on the federal judiciary. I think that even lawyers do not always understand what that process is and believe that the ABA has a political role in this. You can put politics in anything, but that is not the role of the ABA. The first thing, it’s important to understand, is the role of the American Bar Association and the Standing Committee. The Standing Committee of course is a Committee of the ABA, but it is the only Committee of the ABA that’s truly a standalone committee. We are appointed by the president of the American Bar Association. We don’t answer to the president of the American Bar Association. He doesn’t get to sit in your meetings. He does not or any other member of the ABA who was on the policy side of the ABA, they are not a part of those deliberations. They know what we do when you learn what we have done, and that is when a rating is released on a candidate, on a nominee and sometimes it’s a nominee, and now especially with the Trump Administration as it was with the Bush Administration, their nominees for years before that from 1953 when President Eisenhower first brought the ABA into this process until 2000. The ABA did all of it’s evaluations pre-nomination. So we hear a lot about not qualified ratings these days for most of the time that the ABA did its war, there are a lot more not qualified ratings out there than you will ever know about. But part of the reason the Executive for the president chose to go that route, is they didn’t want to put up perhaps someone who had been found not qualified by the ABA. So from 1953 to 2000, the work of the standing committee on the federal judiciary was done on a pre-nomination basis. The Bush administration came in in 2001 and from 2001 until 2009, we did our work on a post-nomination basis. But it was post-nomination but the hearing would not be conducted on the nominee until the ABA had released its rating. So even though the ABA did not get to vet the nominee prior to nomination, we knew that the Senate Judiciary Committee heard from us because they did not hold a hearing until those ratings came out. The Obama administration of course went back to a pre-nomination review, and I served on the committee during the Bush Administration. I chaired the committee during the Bush Administration. I chaired the committee for year doing right after the transition to the Obama Administration. So trust me, I have seen it all with the Standing Committee on the federal judiciary and even after service on that committee ends prior Members of the Committee will often come back to conduct evaluations just because of the sheer number of evaluations in the system and especially in the Trump Administration where I think we have had a 155 nominees that had been nominated by President Obama. A 15-member committee cannot do that work. You bring back the people who know how to do it, and I can tell you that I have vetted many nominees under this administration as well. So the Committee is composed of 15 members. A representative of each Federal Circuit. The Ninth Circuit gets two. Not because it’s special, but because it’s just so big. We’ve got Hawaii, we’ve got Montana, we’ve got California. So we just need two representatives in that Circuit, and of course there is a chair. You can be appointed for no more than two, three-year terms. I know no one recently who has been appointed to more than a three-year term and lawyers just can’t do it. Just the volume of work. I can tell you it can be a full time job. I have been on the committee when Supreme Court nominees come through, put aside your practice. You’re just going to be vetting what comes before you. I served as chair for two years, which is a very rare thing. But only because of the transition that was taking place with the administrations and because the process changed where we went from post-nomination to pre-nomination reviews again. So those 15 individuals do the work as you can imagine these are very seasoned lawyers. They don’t come with any particular political point of view. Having worked on the committee as the Fifth Circuit representative and then as the chair for two years, I could guess what people’s political affiliations were. We never talked about them. Never knew about him. Didn’t really care. Because once we prepare our work, we don’t sit down and have discussions on how to do this. Individuals who are on the committee, individually vote, you get a report, you sit in your office and your dean and your backyard, wherever you do that work, and it is not a process where you’re convincing others. The strength is in the reports that come from the committees, and these are reports that will rival any great briefs that you see in the courts. These are very detailed reviews that take place. We consider it a nonpartisan peer review. We talk to lawyers. We talk to judges. We talk to people who actually know the nominees. If it’s your political buddy, Cato or the Leadership Conference will talk to you about that. We get the Senate questionnaire and the nominees are required to tell the Senate, what are your cases? What do you work on? Who knows you? We go from bad, and of course in the days of Google, lawyers have all kinds of ways of figuring out, who knows you? We go to federal courts. We know where you practice. How much you practice. You may give us all the people you’d think like you. We’re going to talk to the lawyers that you beat or that might not like you. We want the full picture and it’s a peer review. It is a confidential process. We don’t ever give the names of who we have spoken with. We tell people it’s confidential and I know that lawyers and judges believe that because I have had them say to me, “I’m going to tell you what I didn’t tell the FBI Ms. SQ.” It’s because they believe we are peers, this is the American Bar Association. There’s a duty that we owe to courts and many of us are trial lawyers who do this work and so we work very hard to get a fair and balanced picture of who this nominee is. We vet only professional qualifications, professional competence, exactly what you think that is. Intellectual capacity judgment. Can you write your knowledge of the law, your professional expertise, integrity, character, a general reputation in the community and of course temperament, freedom from bias, open-mindedness and importantly, equal justice under law. We want judges who will apply law and facts and come to whatever decision that leads them to. We’re all biased in some way, but without bias that has been expressed in a way which would affect one’s ability to do that. So the average report that the ABA is going to prepare, we generally have 40-50 interviews of lawyers and judges that the nominee has practiced before. If you are a law professor, we’re reading all of those writings. A very different process with the Supreme Court because it is different enough, we have special reading groups assigned to look at the writings of a Supreme Court nominee. We take that information that is in the questionnaire and really try to figure out who this nominee is with respect to the three things that we vet. We make it very clear that we don’t vet ideology. We don’t care what your philosophy is, your political affiliation, everybody has a view as to whether the ABA is liberal or not liberal, and it really does not impact the work that we do. We don’t get to tell the president who to nominate. We don’t put together the list that maybe used in an election to say here’s who I might put on the court. Whomever the president nominates, the ABA vets and we use the same vetting procedures regardless of what party you are with. We have three ratings, well qualified, qualified and not qualified. I can tell you that everybody who ever is nominated believes that they’re are well qualified, and sometimes a lot of the times the ABA will agree with you because I think it’s really true that the vast majority of nominees to the federal courts are the finest lawyers in America and of course, a peer review process is going to show that they are well qualified. The ABA gets criticized because of those we find not qualified, and there’s a lot more discussion about that recently just because of the process that’s being followed, there many, many more nominations, there is not adequate time for review. In prior administrations we had at least 35 days to conduct the kind of review that we conduct. There was also hearings not held before the ABA ratings were released. As you well know now, there are hearings being conducted before the ABA ratings are released. The executive, the Senate Judiciary Committee does not get to look at or even ask the ABA, “Well, why did you find someone not qualified if the hearing has already been conducted.” But that is all we will do. Even when the ABA releases it’s reports, we talk about what we have found, again, we do not identify people. The Senate Judiciary Committee has made it very clear that the purpose of those reports and certainly the ABA is not to hurt anyone in their careers or whatever, we sometimes have to give a report that’s a negative one which is why we like the pre-nomination process, because when the ABA told President Obama and all those presidents from 1953-2000, some of them may have decided, “Yes, we are going to nominate a not qualified someone that you have found not qualified.” Did not occur with those found unanimously not qualified by the ABA. President Obama, non of the persons that the ABA found not qualified in that pre-evaluation process were nominated by President Obama. Again, it’s the decision of the president as to whether they will go forward. I’ve had the unfortunate experience of having to testify on a non-qualified candidate as the Fifth Circuit representative and it is not something that the ABA takes pride in. The ABA is the trade association for the lawyers of the United States. The last thing we want to do is to be in that position, but if we have to, we justify our work. So that is our process. Now, many say the ABA itself is politicized and I will tell you on the ABA side of the house, that’s not the Standing Committee on the federal judiciary? Yes, they are. They take policy positions, that’s why we have the House of Delegates. We take positions on the independence of the judiciary and what’s coming down the pike and a whole lot of legal issues that an administration may or may not agree with, that is not what the Standing Committee on federal judiciary does. You cannot serve as an officer of the ABA if you are on the federal judiciary committee. You cannot be on the Board of Governors, they don’t coordinate with us, they don’t even try, they just know that’s not how we do it. It is a firewall that is respected and honored because the ABA truly believes in the value of the work that it does in providing these neutral nonpartisan peer reviews to people who may spend decades on the federal courts of the United States of America with lifetime appointments. So our committee is the only committee in the ABA, we like it, we don’t report to anybody. The Senate Judiciary Committee gives us instructions when it has issues about what the ABA is doing, of course, we coordinate with the Justice Department, the White House to make the process better and we will, I hope continue to do that. We cannot endorse candidates for federal judicial office if you serve on this committee, you can’t make a partisan political contributions on the federal level and I loved it because we elect judges in Texas and you write them cheques, and when I was on the committee I would say, “You know, I’m just not doing anything on a partisan basis.” So we really try to stay out of the process and even after having served on the committee for one year, if the president wants to nominate you, you got to wait a year because we want it to be very clear that it is not political to us and that the ratings coming out of that committee are not influenced by those kinds of considerations. We of course, vet Supreme Court nominees. I was the chair when Justices Sotomayor and Justice Kagan went on the court, personally participated in that process. The process is much broader, of course, with a Supreme Court nominee. It is led by the circuit representative where the nominee comes from, but every circuit representatives does an independent vetting in their own Circuit. With many Supreme Court nominees, they do have national reputations and judges in the federal system, if you don’t think they knew who Neil Gorsuch was, we found that out. Many of them do even though they were not in the 10th circuit. The reading groups are very important. We have a lawyer reading group and we have a law professor reading group. So we get law professors who are experts in various areas to review in detail the writings of a nominee. If you are judge, we are evaluating those opinions. Of course, we have the expertise from practitioners doing the same thing. Again, we don’t pick you based on what your politics is, we get a law school that has the faculty, we try to mix it as much as possible to get a balanced point of view. Again, the ABA does this because we believe it is so important. You may see me dark as my peers give some of their opinions because I don’t want to speak to what the ABA might or might not say on a particular thing because I know the Standing Committee on the federal judiciary would not have any positions. In fact, it gets to be very interesting sometimes because the ABA will be coming out on the one hand saying something and the committee is just releasing it’s ratings and people will say, “Oh you know, the ABA has stepped into that again.” Well, maybe, but that was not the Standing Committee on the federal judiciary. So it’s an important process and I hope this was helpful to you in understanding how that process works. So following Ann Kim’s lead as a DOJ employee, any of my comments do not reflect the department in their positions. Please write down any questions you have, we have some time for questions, I’m going to kick it off with questions for each of the panelists and give them a chance to do that, but let’s start with that, with Ellia. All right. Well, so first of all, the ABA is of course an interest group, not the Standing Committee, the ABA as a whole. It’s unfortunate, the standing committee, and I’ve got to know Kim a little bit last night, lovely person or any of the other members, colleagues, her colleagues on the committee. But it’s kind of like how would someone on the left feel about the Federalist Society doing ratings? Because that is how the ABA is considered to be. This is not your father’s your grandfather’s ABA. This is not represent lawyers in the country, represents a small sliver of left-wing lawyers in the country. So the Standing Committee does good work, generally I’m not saying that. But maybe it should be spun off, maybe there should be some other process, I don’t know. But I think President Trump and President Bush before him were correct in not considering ABA ratings as they went ahead and in doing their thing independent of what the ABA was doing. So until we have a different process, that’s where those on the right stand on that. As far as Lena’s comments, I found it very interesting to be accused of being overly ideological when it seems like, it’s Lena’s organization that keeps talking about results and what kind of rulings they want to see. In my remarks, I don’t know if I said what kind of result I like. I talked about methods, I talked about tools for interpreting constitutions and statutes and that sort of thing. There are no litmus tests although they apparently are on the left, if someone is going to overturn Roe v. Wade I don’t think that’s going to be viewed very helpfully. In fact, this is what’s gotten someone like Naomi Rao into trouble because the White House Counsel’s Office does not ask, will you overturn Roe v. Wade? There are concerns by Senators who want to make sure that they’re rock ribbed whatever on the bench. Speaking of Naomi Rao. I find it rich that there’s this criticism of this or any other Republican administration, it’s really no different as appointing only white males. Look whether to Lena or anybody in the audience, if there are originalists and textualists women or people of color that are being missed, please let me know. I’m just a small player but I’m happy to funnel that, those overlooked candidates. Because that’s ultimately what this is about. Ironically, when Republican administrations, when President Trump appoints women or people of color or both, they are the ones who were attacked the most. Whether it’s Naomi Rao, Patrick Bumatay, a Filipino American gay man who was viciously opposed by Kemal Harris, and Dianne Feinstein, and since under the new White House counsel has been demoted, he’s now a District Court nominee rather than Ninth Circuit nominee. So it’s a very nasty game that’s being played here. Again, the concern is with appointing originalists and textualists. This is not trumpy judges, whatever that means. You don’t see Judge Judy or Rudy Giuliani on Trump’s list. This is a higher caliber, I think based on ABA ratings as well of judicial nominees generally, yes there are some bad apples absolutely. But generally, than any other administration, than Bush, than any, it’s incredible, it’s remarkable that this is coming from President Donald Trump. It’s ironic, amusing, whatever word you want to use, but the judicial nomination operation is just an incredible machine that from my perspective has produced Trump’s best successes. I mean, I wish you would put the Federal Society in charge of the rest of the government, frankly. Finally, just correcting some factual points. The blue slip, only two judiciary chairmen have treated blue slips as absolute vetoes. The process is now in place as you get a reasonable time to investigate the potential nominees, and as long as there’s consultation, just merely because you oppose them that is not enough to not proceed. You can vote no. In fact, I encourage again, Senators, who think that a nominee is bad for the rule of law to vote no. If we’re not going to allow filibusters, meaning 41 senators to block, they’re certainly not going to allow one. Cloture votes. President Trump has faced more cloture votes, this is motions on the vote to proceed to a confirmation vote. More cloture votes than all previous presidents combined, including our nominees that ultimately are confirmed by voice vote or 90 plus. During a recess, Dianne Feinstein agreed to those hearings, that’s not a problem. That Brown v. Board point is offensive. I don’t think any of these nominees want to overturn Brown v. Board or consider it controversial. This is to avoid the got you game of then asking about other more presidents that are in fact contentious, like Roe v. Wade but but others. So not to go down that route, the White House Counsel’s Office, the Office of Legal Policy Council don’t talk about grading any particular case whether it’s Marbury or Brown or anything else. So I’ll end there, I got me a little excited. Let me just just respond very quickly as a trial lawyer who stands for juries in Texas, I sort of avoid labels and that left-wing label is always attached to the ABA. I just say, look at the facts, 155 judicial nominees by President Trump. Ninety eight of them have been found well qualified by the so-called left wingers. So that just suggest the ABA is just doing its work regardless of what their political affiliation is. The ABA is looking at those three criteria by which professional competence is defined. Fifty one were found qualified, six were not qualified. Some of the not qualified have been nominated, others have not been renominated for the very reasons the ABA found them not qualified. So again, we all have our political positions, that is not what the Standing Committee on the Federal Judiciary is attempting to do. We’re looking at those three criteria I’m interested in a conversation not so much a debate right now. So I don’t really want to go into rebuttal portions, but I will just quickly mention. I might not have been talking about tools as a statutory interpretation or anything else like that. But I think what’s really important to note is that there are and there used to be a number of nominees even in this administration who could say things like yeah, Brown v. Board of Education was correctly decided. Here are the tools of interpretation that I might even be able to use and apply, and I think that there’s a number of ways a nominee has historically answered that, and has not. Sort of the accusation that were outcome-driven. Well, I think it’s very important to note that no, we don’t want to see civil rights protections rolled back, we need to achieve even more than that. But the courts have to be empowered in order to be able to do that, the courts cannot become a political arm in order to achieve what this administration, especially can’t do in a policy matter through legislation, they’re trying to achieve it on the courts. I think that’s the biggest concern that we have. One of the big goals of the Infinity Project is to try to make the process, the judicial selection process more transparent. So I have a question about, we started talking about this kind of smoky back filled rooms. It’s not happening there. But Ilia, you mentioned there’s the politicization of the product, but not the process. So can you help us understand I think a little bit more about what the current process is through Trump. Then Lina, I’d like to have you respond, how that differs from Obama and is there still room for interest groups like yours or the ACS to have some input, in what’s the current process under Trump? Then can I have a chance for you to talk a little bit more about ways in which the ABA could still become relevant, or make itself a little more relevant under this current selection process. So in center-right legal circles, there arose a concern that Republican appointments were too much based on, are you a loyal Republican? Are you nice enough with people in power? Rather than do you have a solid paper trail, or background, intellectual rigor in originalism, textualism? So that’s been the emphasis of the federal society. Getting people who are more younger and rigorous in these interpretive schemes and educating them and yeah, producing not so much a pipeline but creating a critical mass from which Republican presidents can pick, rather than picking whoever the head lawyer of the county Republican Party is or something like that. It’s to change the type of the pool from which Republicans are picked, but it’s not a matter of outsourcing the choice. That the White House is outsourcing the choice of the federal society. As Don McGahn, the former White House Counsel said to the Federal Society National Convention a year and a half ago. I and all of my staff are members of FedSoc. So it’s not so much that we’re outsourcing it, it’s we’ve in-sourced it. So it’s a change in the conservative legal elite, if you will, that has this member organization. That’s the counterpart of what the ABA is not. The Standing Committee, again, I’m not impugning your efforts. That’s what that’s all about. So I want to talk about that legal Ilia and I think that this is true not just for the Federalist Society but a lot of the legal community. I think those who perhaps are more attracted to the Federalist Society, perhaps that’s why we have to point out the women and people of color who may have this view or those types of tools and interpretations to Ilia because I don’t think a lot of women and people of color generally find that those tools of statutory constitutional interpretation are attractive, and I think that that’s a problem. So when you are or the Federalist Society brags at their annual convention, that they’re in-sourcing the judicial selection process to the Federalist Society by hiring only Federalist Society, you are finding the most narrow view of who you will then be picking from in order to select some judicial nominees. That’s a huge problem. I think you know President Obama certainly, and I don’t think any other administration was only ever going to single-handedly or to look at one organization singularly, when they were coming to judicial selection. The American Constitution Society during the Obama administration was not gone too and the only voice when it comes to judicial selection, rather you want to have because the courts matter because the public’s trust in the courts matter, multiple voices about who would be a good candidate. If you’re only selecting from a homogeneous group, those who think that they would be good judges, that’s what you’re going to get out. So I think that it’s really incumbent upon us when we’re thinking about judicial selection, to think of how we can really knit together a broader community and I think that’s what the progressive community, the civil rights community, especially wants to see down because if you really are only coming from one particular perspective, you’re only going to get that perspective out on the other side. Now, President Obama certainly welcome to that. It’s very clear after Ilia even quoted Don McGahn that that’s not so much the case here on the Trump Administration. So that input point, the points in which the senators are able to select and appoint people is absolutely critical. It is vital that those senators have those judicial selection commissions or some strong, steady force in which they are finding great candidates, that they are encouraging that there is some transparency and how this process works. Having talked to lawyers around the country, most people don’t know how the judicial nominations process works. So demystifying that, making accessible helps but it really helps to make sure that we are also having a judiciary where people can see themselves, that there are paths that yes, you are going to probably blaze your own trail but you want to see that there’s something that it’s possible for you to actually be able to do that. If you have roadblocks, if you have blue slips that are not being at all, even dignified, then I think that’s a problem in a quick footnote on the fact-checking of apparently the fact check on the blue slips. There are three times that previous to President Trump that a nominee’s been confirmed without support from both of his home state senators. It’s been only three times. It’s been by the people who were withholding the blue slips were Democratic senators and it was a Democratic Senate Judiciary chair who decided to go forward with a hearing. That’s dramatically different than what we’re seeing right now where this is this all of the safeguards in terms of the judicial selection process from selection to confirmation are really being denigrated. I don’t know exactly how we get back to a better point, but I don’t want anyone to leave with any confusion that this entire process has been degraded because they want to achieve through the courts what they can’t do in a policy away, that if we want to honor what Congress can do in those legislative acts and what they’re enabling agencies to do, then we have to make sure that we are having judges on the bench who actually really view that and see that and understand that in its importance, but the Senators have to get that right too. That starts with the Senate Majority Leader Mitch McConnell. As a libertarian opponent of judicial restraint, I’d just like to add that I’ve had as many or more debates within the Federal Society as against ACS rather progressive groups. The ABA will simply continue its role of providing neutral peer reviews. For the 66 years that the ABA has done this, it has not always been smooth sailing. This is not the first administration to decide that it did not want the ABA in the pre-nomination process. Even in the pre-nomination process, there were times that ABA has come at a great criticism. What do we do? We do what good lawyers do. First of all, the ABA does not endorse any nominee for a federal judgeship. Even on the side that is not the Standing Committee, the ABA does not endorse candidates. It does take positions on issues like independence of the courts and other issues related to the administration of justice, but of course, that’s the part of the very purpose of the American Bar Association. We work with the Senate Judiciary Committee. I have been on the front line testifying, I have heard the criticisms, and we have worked with those senators to say what do you need, what would you like to see improved in our process? There were times they would say, “We want more transparency.” If you have a negative comment or an adverse comment that you receive on a nominee, hear the kind of safeguards that we want you to give the nominee in that process. We have always done that. We work with the Justice Department, with the Senate Judiciary Committee to tweak the very form that nominees fill out because we are the lawyers who take those forms and do something with it and we say, it would it would be very helpful. We were the lawyers who said, “Why don’t you put the forms on the website, don’t you think the people of America would want to know who’s being nominated?” It was like, why didn’t we think of this. So we will continue to do what we’ve done and because we believe it’s a service to the Senate, to the White House, but most importantly to the American people. We could go on but it’s time for lunch. There are a few questions that I didn’t have a chance to answer. If it was one of your questions, please come up, the panelists will make themselves available now or at break or at lunch. So please join me in thanking our wonderful panel. On behalf of the Law Journal, I would like to thank each of you for the hearty discussion. Now, the Law Journal would like to invite all of our guests and students to a equally hearty meal, I worked on that. Students, please let our guests line up first and then only go when they’ve gone through the line. Then after Professor Greenhouse gets a quick chance to eat, she will provide our keynote address, that will begin at approximately 12:15, I will give a five-minute warning, and it will be followed by a questions and answer session with Dean Brabbit. So guess whenever you are ready, please line up at the back of the atrium and go around to the buffet. Thank you. What a fabulous morning? My gosh, and I know the afternoon promises to be just as dynamic. Again, I’m Lisa Brabbit. It is my distinct pleasure to introduce our keynote speaker, Linda Greenhouse. Perhaps you know Professor Greenhouse as a Radcliffe College graduate, a member of Phi Beta Kappa, editor of the Harvard Crimson and Yale Law School graduate. Perhaps you know her as an expert on Supreme Court matters. She’s covered the court for three decades, providing insight on thousands of decisions written by 18 jurists. Perhaps you know her as a Pulitzer Prize winner and the recipient of many other Journalism awards. This is the very public facing Linda Greenhouse. But you probably didn’t know that she is an animal lover and once raised a baby iguana that grew into a five-foot long adult iguana. You probably didn’t know that she is the proud mother of a very successful daughter, a daughter who was once roommates with, not a senator but a five-foot long adult iguana. As a mother, Professor Greenhouse experienced all the trials, tribulations, and thrills of working alongside a young woman experiencing her own professional journey, shattering glass ceilings in a different way, and in a different venue. Today, her daughter as a successful Hollywood filmmaker, a director, writer who was elected to the Motion Picture Academy at the age of 31. The Los Angeles Times reports the median age for the academy is 62 and membership is 77 percent male. Unfortunately, she couldn’t attend the Oscars this year because she’s home with a new puppy. Now, this is true, research shows that there’s a genetic connection to the love of animals. Professor Greenhouse is no stranger to sticky floors and glass ceilings. As the Harvard stringer for The Boston Herald in the late sixties, the paper was very happy to publish her articles. They were insightful and extremely well-written. But a full-time position was not an option for women at the Herald and it was not an option at the Boston Globe either. Doors were closed, at least until this event and our history called the Vietnam War. Several men were drafted out of positions at the times and James Reston hired the first woman into an internship program to help fill the vacancies, Linda Greenhouse. Just as she was hoping that the end of explicit bias was in sight. Implicit bias made its debut. Early in her career when she and her lawyer husband attended events in Washington DC, male lawyers would talk only to her husband and not to her. So, she started to play a little game. She would intervene in the conversation occasionally throwing out little insider facts about the supreme court and she would count how long it would take before the lawyer would do a double take and say, ”Who are you and what do you do?” Now, let’s drill down for just a moment on one aspect of what she does. She spends her professional energy being extremely observant, she must be, and she’s exceptional at it. Think about what it’s like to cover the court, accessibility is totally limited, Justices don’t give interviews, and the staff is forbidden from talking to the press. But do you need to be extremely observant to note the gender imbalances on the eighth circuit with only two white women and not a single woman of color ever? Please join me in welcoming Linda Greenhouse as she brings her intellectual firepower and insightful analysis to important issues related to the courts and picking judges in the 21st century. Linda Greenhouse. Thank you Lisa for doing all that extra research. So, thanks very much for having me. I’m really happy to be here. It’s a subject I’ve thought a lot about, I’ve lived through many observations about it. I was there when Sandra Day O’Connor first took her seat on the supreme court bench, and I remember, I had a just a deep of a physical reaction to walking into that courtroom and seeing a woman on a bench for the first time. I agree very much with what Sybil Dunlop said at the beginning of the session that it’s not that women are the bench are going to be more empathic, more one thing or another thing. It’s the notion of the dynamic of a court whether it’s a collegial, appellate court, collegial as a term of art, or a group of district judges in a courthouse all doing their own thing. Just to know that there are other people from other kinds of life experiences. I remember when, after Thurgood Marshall left the bench, Justice O’Connor wrote a little essay honoring him that appeared in the Stanford Law Review and she said that, what she remember most about Justice Marshall, was the stories that he would tell around the private conference table of the justices that would be evoked for him by different cases. He would tell stories from his amazing life and Justice O’Connor wrote, I remember this, stories that might by and by change the way I see the world. I remember reading that, it was a long time ago and it was at a time when Sandra Day O’Connor had, I think never voted in a case on the side of racial inclusion. She was very much anchored on the conservative side of the bench. So, I read that and I thought, well, that’s interesting but that seems a little abstract. But by the time she ended her career, remember, she wrote the majority opinion in Groot or the case that upheld affirmative action at the University of Michigan Law School. Her sense of the world and her place in it did evolve and enlarge and it would be very reductive and presumptuous of me to say it was because she listened to Thurgood Marshall telling stories, but I think we all learn from one another and I do think it’s extremely important. So what I tried to do here is anticipate what was going to be talked about at this symposium and and try to say things that wouldn’t duplicate what other people were saying. So I’m not sure the extent to which I’ve succeeded. But what I’m trying to look at here is some thoughts about women’s legal careers, how do women get in that pipeline? Not quite as focus on the mechanics of it as you heard from the panel before the last panel, but what lies ahead for women entering the law? So, President Jimmy Carter appointed 40 women to the federal benches you heard earlier from Professor George’s introduction, five times as many as all his predecessors combined. The impact was really transformative. When Carter became president in January 1977, there were only five women among nearly 400 judges on the federal district courts and only one out of 97 judges on the Federal Courts of Appeals. Surely, Hofstadter was that one, she had been appointed by Lyndon Johnson in 1968. Carter appointed 11 women to the federal appeals courts including Ruth Bader Ginsburg and the late Patricia Wald, 29 for the district courts, for a total of almost 16 percent of his 259 judicial appointments. So, for our purposes today, I think what’s most interesting is not the royal numbers, but the path that those particular women took to the federal bench. Their path differ notably from that of the Carter Administrations male appointees. The women were less politically connected. They were much more likely to be sitting judges on the state courts and much less likely to be major law firm partners as many of the men were, which is not surprising since they were very few women in big law in those days. Their private practice credentials were more likely to have been earned in government service or in public intra settings. Again, see Ruth Bader Ginsburg or Pat Wald. More than the male appointees, the women ran into problems with the American Bar Association. Which was accustomed to evaluating judicial candidates with more conventional credentials, read male credentials. I recount this history of which this is really just the tip of the iceberg because judicial appointments were a very contentious front in the gender wars of that time. As feminist scholars including Sally Kenney who if you’ve heard mentioning Mary Clark have documented. But really more is in introduction to my topic. What does the pipeline look like today now that women outnumber men in the nation’s law schools as you’ve heard earlier, 51 percent according to the statistics that the ABA published last year, what are their career paths? How did they experience a life in the law? Where do we find women in the pipeline to the bench? So my effort really is to supplement the focus of this symposium by adding some general context about women in the legal profession. A close look at what goes into the pipeline should better inform our evaluation of the progress of women onto the bench. So, to cut to the chase, there’s some real challenges still confronting the legal profession and anybody who cares about gender equity, both on the bench and on the way to the bench. So first, the statistical snapshot drawn largely from data published last year and by the ABA’s Commission on Women in the Profession. I have to say, the ABA is not a left-leaning organization, it does a lot of important research to understand the rule of law and how law is being practiced today. Women make up 35 percent of attorneys engaged in active practice today. They earn about 78 percent of male lawyers earnings. A gap that translates into more than $450 a week, and that gap has grown rather than shrunk in recent years. The gap is somewhat breathtaking. In fact, between male and female partners in the country’s biggest law firms and I realized that doesn’t apply to everybody, but it’s just an interesting benchmark. There’s now a 53 percent difference in pay, as reported in December of this last year, up from a 32 percent difference in 2010. Male partners at these big law firms. I mean I’m astonished by these numbers, but they are the numbers, earn an average of $959,000 a year compared with women is $627,000. Now, those nothing no cry over, but as a difference. If those who study such things attributed to the fact that men are more likely to be the firm’s rainmakers and to receive “Origination credit,” for the work they bring in. How open to women our law firm partnerships. In private practice, women are 45 percent of law firm associates, 23 percent of law firm partners, 19 percent of equity partners. There are off data statistics that look at newly promoted partners rather than partnerships as a whole. So it captures a more current snapshot, and in that snapshot, women were 38 percent of new law firm partners in 2017 of lateral partners, partnership hires, 28 percent were women. Women are 26 percent of the Fortune 500 general counsels. The first snapshot or the bench. My numbers are a little lower for the state course than Tracey George’s numbers, but I grant that hers are right is about 30 percent of the state court judges roughly a third of the federal court judges, including of course precisely one-third of the US Supreme Court. Speaking of the Supreme Court, for the first time in history, half the law clerks are women. That’s a big jump. In the Federal Courts of Appeals is about 45 percent. But equity amongst Supreme Court law clerks doesn’t correspond to equality of opportunity in Supreme Court practice. Of the few women who practice regularly before the Supreme Court, most are government lawyers. By the current Supreme Court terms midpoint in late January, lawyers had made a 112 appearances in argued cases, and only 17 of those appearances were by women, and only six appearances by women in private practice rather than representing the government. The US Solicitor General’s office, is the most frequent repeat player before the Supreme Court, and the office is very important feeder to the upper reaches of the Supreme Court bar. Until recently, women accounted for about half the lawyers in that important small office, where only one woman Elena Kagan has ever been Solicitor General. In recent months, that number has dropped to only four women out of 16 lawyers. But, it’s important to get behind those statistics to see what life is like for women in law practice. Studies of women in law firms and in-house counsel physicians regularly show evidence of implicit and sometimes the unmistakably explicit bias, and I should note that much of what I have to say applies to the experiences of layers of color regardless of gender. Women and layers of color frequently report what’s known as prove-It-Again bias, and I think Lola really was referring to this, and the earlier panel which talked about people not being self-confident enough that they have what it takes to even think of a judicial career, Prove-It-Again bias. That feeling of always being on trial with their commitment and confidence, question and having to be proved time after time. Women report feeling pressure to behave and conventionally feminine ways, and are often assigned office housework tasks more often than their male peers, and often they respond to that pressure, perceived pressure by being the ones who volunteer for the housekeeping tasks. Among the recommendations by one study published last year, by the ABA and the Minority Corporate Counsel Association, under the title, you can’t change what you can’t see, interpreting racial and gender bias in the legal profession. When recommendation was at firm leaders stop asking for volunteers and simply assign such tests on a gender neutral basis. Another study reported that when women leave affirm to go in-house, their motive is often taken to be a desire for a more manageable work life, while when a man makes the same move, he’s regarded as a strategic thinker, who wants to be close to the centers of corporate power. Too often, female general counsels are seen as and treated as tokens. Studies of the past to a general counsels positions show that women who work in-house are rarely promoted to the top position. They do better by moving into general counsels positions at a different company in fact, and that’s no guarantee either. Of 30 major companies that replaced a retiring General Counsel in 2017-2018 cycle, 30 companies, 22 hired men and only eight hired a woman. In law firms, women and lawyers have color of both sexes report they are brought along on meetings with prospective clients as eye candy to suggest diversity. But that is the pitch turns out to be successful. They often don’t receive credit for their roles in preparing for or participating in the meeting. Women who become mothers report that their career prospects often hit a plateau. A group of female lawyers at Morrison Forrester, filed a lawsuit against the firm last year claiming that that firm responds to mothers and pregnant women with lower pay and fewer promotional opportunities including to partnership. Proskauer Jones Day, are the big firms have been sued recently over imbalanced in partner compensation. A real wake-up call came earlier this year, and you probably remember this. When the law firm of Paul Weiss celebrated as new partnership class with pictures, of the dozen new partners only one was a woman. This widely reported incident prompted a 170 General Counsel and Corporate legal officers to sign an open letter to all big law firms, announcing that in choosing outside firms to retain, the signers would give priority to those committed to diversity and inclusion. Noting that partner classes, “In no way reflect the demographic composition of entering associate classes”. The letter said, “We are left to wonder if you and your partner’s value diversity enough to put into place programs to develop, promote, and retain talented and diverse attorneys, we expect the outside law firms we retain to reflect the diversity of the legal community and the companies and customers we serve.” That could prove to be a very important initiative, but time will tell. Will this wakeup calls these successful? Well, anything help to solve a problem that’s been identified and discussed actually for many years. The ABA and Minority Corporate Counsel Association Study offers several suggestions beyond the useful one of no longer seeking volunteers for unglamorous tasks around the office. Its report emphasizes the use of metrics for evaluating both job applicants and job performance with the goal of being the elimination of subjective and open-ended appraisals, placing everybody on an even playing field. I think I heard resonance of that in judge members remarks about more transparency in the application process, into the interview process. Some big firms including Proskauer and Skadden are redesigning summer associate programs to give special attention to women and to minority law students. Proskauer this summer is coming up with what they call a bootcamp to 30 women who are about to enter law school, and these young women will spend a week learning useful law school skills, being paid $1,000 for their attendance, and those who complete the program are guaranteed a callback interview for the firm summer associate program after they finish their first year of law school. As for fall, Weiss its promise to “Do better in the future.” So where does this leave us in our request for equity on the bench. Female lawyers as well as judges often report they’d been mistaken for someone’s assistant in the office or in the courthouse, and of course this applies probably even more acutely to lawyers and judges of color. Earlier this year after a lawyer in Michigan tweeted in frustration that she had been mistaken once again for a paralegal, Eva Guzman, a justice on the Texas Supreme Court tweeted in response to the quote. “This evening I was again told you don’t look like a judge.” That in turn prompted a judge for Michigan, Crayona Lillard to tweet. “People tell me all the time I don’t look like a judge even when I’m in my robot official events.” A Florida judge Florence Miller said that sometimes when the door to her chambers was open, “Attorneys would inform me that they were there to check in and ask of Judge Miller was here yet.” Judge Miller would simply accept their signatures without revealing who she was, and then it would enjoy the lawyer shocked expression minutes later when she took her seat on the bench. Would anyone say to a woman wearing a judicial robe at the US Supreme Court, “You don’t look like a justice?” Not anymore obviously. But remember, it’s just a year or two before President Ronald Reagan named Sandra Day O’Connor to the Supreme Court. There was a hit broadway play called First Monday in October, that treated as a joke. The unlikely notions that a woman was someday sit on the Supreme Court. The play was a comedy. Then, Justice O’Connor changed the narrative, and that’s our challenge. The narrative changes when the facts on the ground change. Changing those facts has been the life’s work of the infinity project, and those of us here today, I think all of us accept that challenge as our own. Thank you very much. Thank you very much Professor Greenhouse. Would you be willing to entertain some questions? Thank you. I thought you and I were going to do. Okay. You should be seated. Okay. Thank you very much for your remarks. You gave us some interesting, I’m tempted to actually say depressing statistics about women in the profession. Of course, these statistics impact the pipeline. What is the impact of these statistics when we think about what we call qualified candidates, because there tends to be a buzz term or a term that gets tossed around in various venues. We want qualified candidates. What is the impact of the numbers on qualified candidates. Then if you could talk a little bit about what is a qualified candidate? Yeah, I think the earlier panel dealt with this pretty well. It’s not checking off a particular box of how many years have you been a partner or who your clients have been, and this kind of thing. What we really are looking for are habits of mind that manifest good judgment that will make people who see the work of session judge trust the courts no matter what the outcome has been. I think it’s much more of a judicial personality. I think is what, obviously in addition, to the basic aptitude and sufficient experience. But at the end of the day, a judge needs this judgment. When you say, when we can change the facts, then we can effectuate change in other venues and our places. How do we keep implicit bias at bay so that when we bring the facts forward, we’re not carrying forward some preconceived thought process about the roles that we shouldn’t play in both society and in the profession? Yeah. If I understand the question, I think, when I talked about changing the facts on the ground, what so struck me that morning when Sandra O’Connor first took her seat on the bench was wow. Now, all of our daughters, or classmates, or whoever, there’s a door that’s opened. So I think we’re still in a phase where certainly in the Eighth Circuit but many other places too. Every woman is sort of a pioneer and has to carry. That’s burden, is being judged for not only her own merit and accomplishment, but for how she exemplifies womanhood in the profession or womanhood on the bench. That’s a load to ask someone to carry. So it’s maybe the flip side of the coin of implicit bias. It’s every individual being held up as the ultimate exemplar. I don’t know if Justice O’Connor had turned out to be a really bad pick. I mean, I don’t know how that would have played out. Fortunately, that was not the case but there’s a microscope that’s trained on any woman who’s the first or the second or whatever. People will have to deal with that. Speaking of pioneers and the profession, Judge Murphy would, on occasion sometimes publicly, mostly privately, talk about her impact on the court as the only woman on the court. In your observation, what do the three women justices bring to the court and can you also give some thoughts about that era where Justice Ginsburg was the only woman on the court? Yeah. So after Justice O’Connor retired in 2005, there were, well, more than four years between her retirement and Sonya Sotomayor coming on the court in 2009, during which Ruth Bader Ginsburg was the only woman and she was pretty frustrated. She talked a little bit out of school about that how at a conference that the justices have a closed-door conference a couple of times a week where they talk about the pending cases. She would make some remark and somebody would talk over her. Then, somebody else would say the same thing and that was taken seriously. Now, does that sound familiar to people that have been, to women that have been in meetings. You think, this happened to Ruth Bader Ginsburg, one out of nine around a conference table. But yeah, it did. She was just swilled. Ideology and politics and everything else aside when for Sonya Sotomayor and then a year later, Lenny Kagan came on the court. So it’s a critical mass. I think it’s very hard to say in any meaningful way. What court difference has it made in terms of the work product of the court? But these are three very hard working women who do their homework. I commend to you the transcript of the argument in the court on Wednesday in the Bladensburg Cross case, the question is whether a 44-foot tall Latin cross standing in a traffic circle between two major highways in Blandensburg, Maryland but on public land owned by the government, violates the establishment clause. The first page after page, after page of the argument is simply Justice Sotomayor, Justice Kagan, Justice Ginsburg and I’m just kind of left me smiling too. I wasn’t at the argument, but I read the transcript. They’re not shy. Their presences’ well felt. Sometimes, we point to that when we talk about transferring public trust and confidence in the judiciary. The presence is felt, they participate, they’re full participants on the court. Is there a gap then when in public trust and confidence and how important is it when many Americans can’t name all the justices on the Supreme Court and many probably can’t name a judge on the appellate court? Talk about that gap and what role do we as organizations, individuals, lawyers, judges have in trying to bridge that gap? Well, your observation is certainly correct. I just was reading for another purpose, a recent C-SPAN CNN survey about public attitudes toward the Supreme Court. People were just given an open-ended question, can you name any justice? About half of them could not. We all live in a world where RBG is like everything. So half couldn’t name any justice. Half of the half who could name any, named her name, Ruth Ginsburg. The next biggest one, I think was it a kind of surprise me that Chief Justice John Roberts, 14 percent could name him. So, certainly people can’t name judges on their circuits and I will say most people don’t have a clue that they’re living in the eighth circuit or the 45th circuit. I mean, it’s not a concept I grew up sort of interest as citizen. I happened to have grown up in the Second Circuit but was that relevant to me as a young person before I started writing about this stuff and figuring it out? No, I somebody walked up to me in high school, what circuit are we in, I wouldn’t know what they were talking about. So now I think we can’t translate it into- all they know there’s this many judges out of that many under federal circuit. I think as Professor George said at the beginning, we most people’s encounter with the courts is at a very local level. So you know the Texas, I didn’t know that Texas story of the Harris County Beto O’Rourke driven 19 women. I think that in a way that’s more important than in some of these higher level courts where people are very unlikely to encounter that the Supreme Court hears these days. Maybe 62 cases year on a busy year. So obviously what they decide has an impact on all of us, but most people have no idea who’s doing the deciding. Let me take a little bit of a turn here and ask about a different matter. In your opinion what did the Kavanaugh hearings do for the process of picking judges? Oh, well, I was very sad about the whole way the Kavanaugh hearing turned out. Most sad about his performance and that his closing argument, whatever it was, his rant, because I know him and I really would have expected better, much better. So I think to the extent that I agree with my friend Ilya Shapiro bought anything. It’s that it’s certainly left a very sad impression on the public and I just wish it hadn’t happened that way. Where do we go from here with the the process, if you were to change one or two things about it and you had certainty of that outcome. What would it be? About the Supreme Court confirmation process? I think getting rid of the filibuster was a very bad thing, because it means that any president and the world will turn and it may turn into two years from now. One year from now. It means you can be as extreme as you can and still get 51 votes and it drives the process to extremes and I guess a few of the earlier speakers mentioned the utility of looking at at non-US systems. So for instance, the German Supreme Court which is a very highly respected one. They can only confirm nominees by a supermajority and that means you play to the middle. I think that would be something that would definitely help now. People say well, Harry Reid started and he got rid of the filibuster in the lower courts. So the Democrats they’re outcrying and they’re over this. What that was about and I’ll just give you a little historical perspective because it’s very easy to keep this as an inside the beltway conversation which is not useful to anybody but President Obama had tried for five or six years to fill the vacancy that had been created by John Roberts promotion, and he nominated a highly accomplished woman named Caitlin Halligan who had clerked for Justice Stephen Breyer and had been Solicitor General of the State of New York and had a Supreme Court practice. She was filibustered three times because the Republicans in the Senate believed that she would be a very attractive Supreme Court nominee for a Democratic president down the road and they wanted to keep her off the court and President Obama found himself unable to fill three vacancies on the DC circuit. So as soon as Harry Reid got rid of the filibuster, those three seats were filled with not by Caitlin Halligan. She finally gave up, filled by three other very good judges at which point the Republicans said, Obama’s packing the DC circuit. Actually, no he was filling the vacancies that had been held open and he could only fill in by getting rid of the filibuster as part of the history of it. But I think that would bring the filibuster back would help at the Supreme Court level. So if bipartisan appeal is the objective if- well, first of all do- are you, do you believe that everybody agrees that bipartisanship is the way to go, or do you think there’s some discussion out there about just sort of let all the advocacy, have all the advocacy they want, and if we get political in terms of the process, well then once they hit the bench, it’s all okay? Well, I’m not sure bipartisan is necessarily the rubric but none extreme. So I think at least until recently, we were not a country that to whom the extremes appealed, and I think you know certainly on our courts. I think we’d all be better off with a little little less ideology. You once I think talked about how a President, their real legacy is in judicial appointments. We’re seeing nominations come forward that are younger and younger perhaps in an effort to make sure that that legacy is captured on the court for a long period of time. We have a nomination of a 36-year-old woman and the fourth currently, we’re seeing kind of a younger, I had a conversation with a person at Twin Cities who once mused to me. Well I would love to be on the Appeals Court but I’m 50, I’m too old, right? so where does this go because I also read something you wrote about DC Circuit Judge who said, She was the perfect judge in many ways book but because she had a rich life expectancy or rich life expect, a rich life experience and she was 50 at the time, she brought forward all of that, all of that knowledge that’s sort of lived experience et cetera. How do we reconcile that and what are your thoughts about younger and younger and younger? Well, what’s going on now is certainly the extreme edge of a trend getting younger and younger is partly an artifact of life tenure. You know, the US is the only country in the world that has life tenure for its High Court, no other country. Every other country has a term of years or an age limit on. So the incentive is you’re going to project your yourself far into the future and nominate them at 36. Ruth Bader Ginsburg was 60, Harry Blackmun, former judge of this circuit was I think 61. As many people have noticed, federal judges live a long time and I think the impulse to go younger and younger would be taking it right off the law review pretty soon. Its logical. If you’re going to maximize your ability to influence the future, it’s logical although of course, future is along time. So what it might impel the president to nominate a certain kind of person. At any given moment there are issues that might be salient. They might be the most important to the system 20 or 30 or 40 years down the road or maybe something totally different and that person may have become somebody totally different. So it’s obviously no guarantee, but that’s our politics right now. I’m going to ask you a question about recruiting, but I’m also going to invite the questions from the audience to come up and the cards, if you could collect those now. So we’ll get started on the next question, then we’ll entertain some questions from the audience. You wrote about how Justice Burger was both ambitious and political, and how it was his goal to get his friend Harry on the court. He was in fact influential in making that happen and it worked. Does that work today? You mean, can the Supreme Court Justice- Well, in terms of judges helping other judges get to the bench and what does that look like? Well, The Washington Post had a story yesterday, that Justice Clarence Thomas has been lobbying senators to vote in favor of his former law clerk, Naomi Rao. It’s a free country, you can pick up the phone but people could decide, how they think that looks, what they think of that. The Washington Post deemed it to be newsworthy that is doing that. So it is a political process. The extent to which we want our judges engaging in capital P politics as well as small p politics, we have to decide. I was a little surprised by that, but people judge what they think of it. Can I grab some questions from the audience as well, any coming up? I see people writing. What would you tell the students in the audience who are making decisions about their career path, and if they have aspirations to someday serve on the bench. What would you tell them? Oh, I don’t think I would tell them anything different from what Lola told them an answer to that question which I thought was a very smart answer, is make yourself the best lawyer you can. You don’t hold yourself apart from the engines of political power in your community. Because anybody who makes it onto the bench has to have friends, and friends in good places and there’s nothing at all wrong with that. Mentors and people who care about your own trajectory, give you advice. So not everybody wants to be a judge. There are plenty of people who have walked away from that opportunity, because it does isolate you from things that other people may find more appealing. So I think to decide super early in one’s career that, what I really want is to be a judge. I was sort of, wait a little bit until you maybe have a more well-rounded view of what all the options are in a legal career. Talk a little bit about the role of the media and the judicial selection process. Is the media, they’re playing the role they should be playing, or they are pulling the responsibilities they should be advancing, are things getting kitty went bust somewhere, then talk a little bit about, how social media is changing the landscape? I think social media is changing the landscape a lot. So you can think of many examples where allegations or stories take on a life of their own. On the web, and I think it’s impossible to put that genie back in the bottle. It’s become another way of doing politics and we were talking at lunch about, what blogs we read and how we try to stay informed, and I think it’s extremely useful for people to look at plugs from the entire range of ideology, just to see what’s being said out there. But the notion that an idea is going to be prevented from getting legs. People are very smart and their use of social media, and people who devoted a whole lot of energy to it and often achieve their goals through it. Do you see, this is a question from the audience, do you see pipelines for conservative women who can apply to the bench. Do you see ways in which they can mobilize, and if you don’t see ways in which they’re mobilizing, what are your reflections about that? Why not? Well, I mean, the country is a big place. So I’m not sure if that question means at the higher levels of the federal judiciary, or locally where I think ideology may have less play. I think all these things are just contention on the general political climate in this sandbox in which one wants to play. So President Obama has been successful in putting, he hasn’t put a lot of women on the bench, he’s actually put a surprisingly small percentage of his nominees. There have been women, but the women that he has found were certainly not disadvantaged by their politics. So I don’t think there’s a particular burden on someone who’s too conservative or too liberal. I mean, President Obama was not looking for very open liberal judicial nominees of either gender. He really named a lot of former prosecutors and magistrate judges and very few academics, if any. I can’t really think of any other than Elena Kagan, who was dean of Harvard Law School. So I don’t think it was a particular advantage to anybody with judicial ambition in the Obama years to be identified as a strong liberal. As I said it’s always contention on the moment. Another question from the audience. In 10 years from now, how do you think we’ll look back at Trump’s legacy in shaping the bench? Well, of course, some of that depends on what these people do on the bench. But we can assume they’re all going to still be there to 10 years from now because they’re going on so young. So it’ll be a Trump judiciary. So for better or worse. Let me ask another question from the audience, “Can you share some of your best memories, your fondest memories of either a private conversation with a justice or oral argument at the court.” I really didn’t have as many private conversations as people may think so. I don’t really have a good answer to that one. But my favorite moments of arguments, so one I could think of was a colloquy between Justice Scalia and Professor Laurence Tribe of Harvard. So it was a punitive damages case of some kind and cert had been granted over the opposition of the party who, after cert was granted, hired Larry Tribe, who was in this day very famous Supreme Court practitioner as well as Harvard Law Professor. Larry Tribe completely reconfigured the argument that the respondent in this case had made in its fruitless opposition, fruitless effort to get the court not to grant the case. He was making a lot of headway in his argument and Justice Scalia was getting quite frustrated because I think Justice Scalia had thought this was a case he could turn to his advantage but Larry Tribe was making a lot of inroads to the arguments. So he said, Justice Scalia said, “Professor Tribe, I don’t remember seeing this argument in your brief in opposition.” Larry Tribe said like that, “Justice Scalia I like to think it was there by implication.” He won the case. Thank you for that. Another question from the audience, ‘With all the attention on Notorious RBG, is this good or bad for women and should we be focusing more on the quality, the merits than her notoriety?” Oh yes, that’s the softball question. Yes. I think the answer is yes. I think it makes me a little bit twitchy. Ruth Ginsburg as a Lego, I don’t know. But where does that come from? You have to step back and it comes from the fact that she has come to exemplify powerful, even uppity woman 85 years old who’s speaking truth to power as perceived and that’s why she’s been adopted by a much younger generation as an emblem. Do I think it gets a little kitschy? Yes, it’s way kitschy but that’s the reason for it. The next question from the audience has to do with evolution. “What do you make of Justice Roberts’ recent votes with the liberal black? Is he evolving? Is he case-specific?” This is an interesting question because you write about Justice Blackmun’s evolution, coming to better appreciate the poor, the marginalized, and women over his course and service on the bench. So the question pertains to Justice Roberts but even more generally, you know, is he evolving is so specific. But then I would add, if this is the case for jurists and if evolution is happening in the process of serving in this role, then is diversity less important? Well, I think the easy answer to your last question is, no, because why would a judge court evolve? That’s what I was suggesting by quoting Justice O’Connor talking about Thurgood Marshall. I think it’s inevitably broadening to be serving your professional life with people who are not like you. As to being on the John Roberts’ watch, which anybody who cares about the court is on the John Roberts’ watch right now. He’s become the median justice. Every group of nine justices would have a median justice and it just happens that it’s the Chief Justice of the United States. Which way is he going to jump? There have been two or three data points in the last couple of months and I think those are too few to really draw any conclusions. I think the only conclusion I have is that, he I’m sure is very self-conscious because he’s a very self-conscious person, about his particular role at this moment. He cares about the court. He also cares about his own agenda. He’s got to engage in a very fascinating balancing act as to how he can keep both of those goals in view of preserving the standing of the Supreme Court and getting anything done to accomplish what he’d like to do in his own traditional career, and that’s a story that we don’t have the final chapter of but we should all be watching and thinking about it. Professor Greenhouse, you have enriched the intellectual dialogue of this symposium in so many ways and we are incredibly grateful for you, your time and for sharing your experiences in your history with us. Can I ask one more fun question? Sure. What’s on your bucket list? What’s in my? What’s on your bucket list? Seeing the northern lights. Well. Not today. That might not happen today but we have a beautiful snowfall for you. Anyway, please join me in thanking Professor Greenhouse. Brian Fitzpatrick, he’s a Professor of Law at Vanderbilt Law School. His research focuses on class action litigation, federal courts, judicial selection, and constitutional law. He has a ridiculously impressive list of credentials that I will hit briefly, but I also have a story about him because I served as his research assistant. So I will hit ridiculous impressive credentials first. He graduated first in his law school class of Harvard Law School, and he went on to clerk for Judge O’Scannlain on the US Court of Appeals for the Ninth Circuit, and Justice Scalia on the US Supreme Court. After his clerkships, he practiced commercial and appellate litigation at Sidley Austin in Washington DC and served as Special Counsel for the Supreme Court Nominations to US Senator, John Corwin. Here’s what I learned from him when I served as his research assistant. Two things. The first thing I learned was intellectual vigor. It was in a time when a lot of folks, a lot of academics were getting in trouble for not having their citations be accurate. Probably the most famous example of that time was Doris Kearns Goodwin, who was getting a little bit in trouble for having, it looked like having research assistants basically copy things and put them in footnotes. This was not going to happen to Professor Fitzpatrick. In gathering citations for him, we would look through them together. I would bring them in a bucket to his office and we would look through them to make sure not only that the citation was accurate, but that it supported the concept he was looking to support, that it was authentically, intellectually honest in supporting the principle that he was articulating. I learned something about cite checking briefs from that. I learned something about having honest citations and being thoughtful about it when you say something to the court about what a case means. The other thing I learned is about how to have a good civil debate. Because at the end of his article, we’d finished it, it was cite checked, he said, “What do you think?” I said, “It is so well done and I totally disagree with you.” He said, “Well, let’s talk about that.” We had a great conversation about it. It was everything that I could have hoped for in an academic experience, to have a really smart person challenging me, challenging what I thought, and to be able to have a conversation about it. So it is what I would hope for every law student here that they get to experience in law school. It is one of the reasons I am grateful I went to where I went for law school, and it is one of the reasons I am honored to introduce him as our next speaker. Thank you. Well, Sybil, thank you so much for that very thoughtful and moving introduction. I’m on spring break and I’m just delighted to be here. When I was contacted to come here for spring break several months ago, I thought to myself, this is going to be a terrible time to be in Minneapolis. But because Sybil invited me, I wanted to be here. She was one of my very first students at Vanderbilt and I remember her with great fondness. I do remember the cite checking process that we went through. I stole that process from Justice Scalia. Before he let any opinion draft leave his chambers and go to the chambers of other justices, he would sit down with the law clerk that had helped him with the draft and the law clerk would hand him source after source after source, open to the page that it was cited for and he would read it, and it better had said what you said it said in the draft. It was a great quality control mechanism and it did keep you very honest in the course of writing your drafts and I’m you remember that Sybil. So I’m delighted to be with you today. I’m going to talk to you about something that I don’t think gets enough attention in conversations about judicial selection. That is the ideological consequences of using one method of selecting judges versus another. Is it possible that when we try to maximize what we’re getting out of our selection method for judges along a number of other metrics, that we might unintendedly end up skewing the ideological viewpoints of our courts away from the public in a way that might not be desirable. That’s what I’m going to argue might be the case today. The source materials for my argument are going to be data that I collected about our State Court judges. I use State Court judges because our State Courts select judges in many different ways. As we know, the federal system has the same selection method. Political appointment, the President nominates, the US Senate confirms. The states have four methods, give or take, and that provides for some variation and we can measure whether there are any differences in method of selection because different states use different methods. So just to show you where I’m going here, these are the four methods that we see around the country in use by our states today. Political appointment, that was the original method by the way. All of the original states at the time of the founding used political appointment like the federal government does today. Some states had the executive branch appoint like the federal system. Some states had the legislative branch appoint, some states had a combination of the two. But all the states use political appointments. Some states still use political appointment today. New Jersey and California have executive appointment. South Carolina and Virginia have legislative appointment. Many more states today use partisan elections. These became very popular in the midst of the 1800s, and a good dozen or so states still use partisan elections today. Judges run for office with party affiliation on the ballot much like other offices. Nonpartisan elections, that’s why I believe you have here in Minnesota. This is a method that became popular during the Progressive Era at the end of the 1800s. Judges run in election, but they don’t have party affiliation on the ballot. So you’re not really sure a lot of times whether a person is a Republican or a Democrat when you go in to vote for them. Then the most modern method, which is actually the most popular method today, is this commission method, sometimes called the Missouri Plan or Merit Selection. This is a method where a small commission of people gives three names to the governor, and the governor has to pick one of those people when filling vacancies on the bench. Originally, the commission system was designed to fill the commission with a lot of members of the bar because it was developed at the end of the Progressive Era at a time when the Progressives wanted experts to run government, and the Progressives thought that lawyers were the experts on who would be a good judge. So they wanted the commissions to be filled with lawyers. The states have deviated from that some over the years. Some states do stack the commissions with lawyers, other states don’t to the same extent. But we have four very different types of methods in use in the states. One thing that I’m going to argue is that different methods produce a lot of different consequences. One of the consequences can be that some methods produce ideological skew in the courts away from the people who live in their states. We should perhaps pay attention to that when we’re deciding which method of picking judges we think is best. These are the usual criteria that we talk about when we talk about which method of selecting judges is best. We’ve heard a lot about diversity today. That’s a very important criteria. These are some others that we often hear about, independence, accountability, competence, integrity, legitimacy. All these are very, very important. Ideally, we want to maximize all these if we can as often trade offs, we can’t get 100 percent on all these things. But I think, again, today, what I want us to do is I want to add one more thing to this list. I think we should care about whether or not the method that we use is skewing our courts ideologically. Are we ending up with judges who have political philosophies that are out of step with the people that live in the states? Now, why might that be important if the judges political philosophies are out of step? Aren’t judges just supposed to follow the law? Aren’t their political philosophies supposed to be irrelevant? Well, maybe that’s supposed to be the case but we all know that’s not the case. There’s lots and lots of research and data that shows us that judges, their opinions are correlated. Their legal opinions are correlated with their political views. So if we end up with a bench that’s all Republicans, we’re going to get different decisions than we get if we end up with the bench that’s all Democrats. That’s what the data suggests. I think that’s what our intuitions suggests as well. That’s why when Professor Greenhouse talks about median justices, she’s invoking this spectrum of political philosophies from one end to the other. So I think we have reason to be concerned, that some methods of selection are not resulting in judges that have representative views, political views of the people in their state. So let me tell you what I’ve done. I went around and collected campaign contribution data, data on every campaign contribution I could find, that a state appellate judge made over the course of their lives, before they became appellate judges, while they were appellate judges, after they were appellate judges. I looked at all state appellate judges between 1990 and 2010, is over 3,000 people who served as State appellate judges in our country during that time. I gathered up all their campaign contributions and I looked to see, did they give more campaign contributions to Democrats or did they give more campaign contributions to Republicans. If they gave more to Democrats, I assign them the label Democrat. If they gave more to Republicans, I assign them the label Republican. Then I looked in each state what percentage of the appellate judges in your state had more people giving to Democrats versus more people giving to Republicans. That gave me a statistic for how left or right leaning the appellate courts are in each state. Then I compared that statistic to the people in every state, the voting public. How often did the voting public vote for Republicans or vote for Democrats in state legislative races, in US House races over the same 20 year, 1990 to 2010 time period. I compared the appellate judges’ leanings to the public’s leanings in every state, and this was what happened. This bar chart here is a ranking of how out of touch the judges are in a state versus the people in their states. So what we see here is, there’s a middle line at zero percent. I hope you can see that. The blue bars go to the left or the right, from the zero percent line. That zero percent line is the public’s leaning in that state. So if the judges had the same political leanings as the public in their state, there’d be no blue line at all, there’d be no blue bar at all. That state, the blue would be right on that zero percent line. States at the top of this chart, they have judges that are to the left of the public in their states, and the number one offender is New Hampshire, followed closely by Iowa, Vermont, Georgia, Utah. These are states where the judges are much more liberal, according to my campaign contribution data, than the public that votes in their states. As you go down, the states become less and less left-leaning until you get to the bottom, where those states are right skewed, the judges are more conservative than the voters in their states. There the biggest defender is Virginia, followed by South Dakota, Texas, and Massachusetts. That just shows you Massachusetts the voters are so liberal that it’s not hard for the judges to get onto the right of the voters in Massachusetts. So the first takeaway from this chart is this. The vast majority of states have judges well to the left of the people who live in those states. Most state appellate courts are liberal skewed, very few are conservative skewed. The second thing to take away from this chart is the following. I grouped the states by the way in which they select their judges, their method of selection. I found that the methods that resulted in the biggest skew were the commission system, and the nonpartisan elections. That merit system where the Lawyers Commission picks the judges and then the nonpartisan elections. Partisan elections were somewhat skewed. Then political appointment, some states use the governor, some states use the legislature, was the closest to the public’s leaning in the states. So this suggested to me that there might be some reason why some methods we’re skewing the judges more than others. The hypothesis that I’ve come to is found in the following graph. This is from a study by Adam Bonica and Maya Sen, they’re political scientists, one is at Stanford and one is at Harvard. They’ve also used the campaign contribution data. Instead of matching it up with judges, although they’ve also done that confirming what I found on my first two graphs I showed you, but they’ve also matched it up just with lawyers all across America. They used the Martindale Hubbel database, and they mash it up with the campaign contribution databases. This is what they find. The bars here are the volume of lawyers at each particular increment of ideological spectrum. On the left side is liberal, on the right side is conservative. What you see is there are many more lawyers on the left side of the ideological distribution than on the right side. Lawyers are liberal profession, lawyers are more liberal than the rest of us. So when we use methods of selection like nonpartisan elections, or like the merit screening commissions, when we use methods of selection that do not account for the fact that the legal profession is left-leaning, if we don’t screen out that left-leaning attribute of the legal profession when we pick judges, then we end up recreating that same left skew in our judges. We cannot take a pool of people that are left skewed, and pick from them judges without any regard to ideology because we’ll just recreate the ideology in the underlying pool. That is my hypothesis on why merit selection and nonpartisan elections produce a leftward skew that the other methods do not, because those two methods are uniquely bad at screening for ideology. Nonpartisan elections voters go to the ballot box, they have no idea who a judge is, they don’t know anything about a judge’s philosophy because the most important cue to a voter is party label. Party label is like a trade mark, it tells voters all kinds of information about philosophy. When we take that off the ballot, the voters are at sea, they cannot screen these two lawyers who are running against each other, or more than two, for ideology and they end up just recreating the lawyer ideology on the bench even if it’s very distant from their own. The merit commissions, it’s the same situation if not worse because not only might this commission not be screening for ideological skew, but the commission might recreate the the ideological skew, insofar as the commission itself was selected by the lawyers, as it still is in many of the merit selection states. So for this reason, I’ve been urging our states to consider whether or not your method of selection is resulting in an ideological skew, when you go about thinking whether to keep your method of selection or to change it. In my home state of Tennessee, we got rid of our commission system. We passed a constitutional amendment and got rid of it, and now we have a political appointment system where the governor nominates and the state legislature confirms. I was just in the state of Iowa where they are having a rousing debate right now, to get the lawyers off their Selection Commission because they’re worried that their courts have been skewed to the left by selection commissions that are skewed to the left. So I’ve been encouraging those who are interested in judicial selection to at least give some consideration to what the ideological consequences of these methods of selection are. This maybe not be the most important thing to worry about in a selection method, but I certainly think it’s worth worrying about, along with diversity, along with independence, along with accountability, et cetera, because we all know that a judge’s political philosophy does make a difference to their decisions. If we want decisions that we can be proud of, then we have to pay attention to all of the inputs that influence those decisions. Thank you very much. I’m happy to take any questions from the audience whether through the cards, or stand up and yell at me, whatever you’d like. Do you want me to read these cards myself? Sure. Let’s see here. Isn’t one of your assumptions that the pool of applicants/appointees is the same as the voting public? What if the conservatives don’t step up and run/apply regardless of selection method? Is there more to this one here on the back? I think there’s more. Let me see here. If only attorneys can be judges isn’t that the type of thinking society is valuing for this position of responsibility? I lost this person little bit here. Let’s just start at the beginning. Isn’t one of my assumptions the pool of applicants is the same as the voting public? I don’t think that’s one of my assumptions. All I’m doing here is I’m using a proxy. Admittedly, it’s a crude proxy campaign contributions. I’m using a proxy for how liberal or conservative the appellate court is in a state. I’m comparing it to another proxy for how liberal or conservative the people are in the state. That is how the people in the state vote. When they voted in United States House of Representatives elections and when they voted in state legislative elections, and I compared those two figures with one another. I just wanted to see. For example, if the judges in a state were 75 percent Republican and 25 percent Democrat, and the public in the state was 50-50, that court would be skewed 25 percentage points to the right. That was like Virginia in my graph. I’m sorry if I didn’t read it right. But you’re free to stand up. You don’t have to do this [inaudible] five percent of your general electors reporting that they’re Republicans, and then you get your judges on the bench and you report that there’s 75 percent liberal Democrats. Because in 1990, I gave five dollars to somebody in the Democratic Party, which I can’t because I’m a judge. But in any event I think the underpinnings of your data I struggle with. But in order for the governor to appoint or people to elect in a partisan or nonpartisan or the Merits Selection Commission to nominate, your pool has to be as reflective of the voters for this theory to hold up because otherwise you can only appoint out your pool. If you have your box of red and blue marbles, you’re never going to get all 50-50 red and blue marbles if you’ve only picked one color to go through the nomination process or if you’ve made your nomination process whether it’s having to raise money for a campaign, and campaign under a particular flag or no flag, but we know what it means, or jump all the hurdles of a commission process. Each of which are funnels. I think I got it now. But you can’t get there from here. Can I respond? We can get there. Here’s how we do it your honor. So, number one, you do point out a very important limitation to my data which I talk about in my article where I published this in Vanderbilt Law Review in late 2017. That is the data is only based on people that give campaign contributions. So in some states, and I think Iowa was one, there are a lot of judges that we could not find any campaign contributions for them over the course of their lives, not just while they’re judges. I think the databases go back to the seventies. Did you give anything in the databases. Some states, there’s less missing judged data. So, this worried me. It worried me a lot. I tried to think to myself now is there any reason the worry is in there believe me. I thought to myself is there any reason now why the people that gave campaign contributions would have wildly different political leanings and that people who didn’t give any? I couldn’t really think of any reasons. I couldn’t think of any reasons, but I was still worried even though I couldn’t think of any reasons why these two pools of people would be radically different, but all the people who weren’t giving campaign contributions were rapid Republicans and they weren’t showing up in the data. I couldn’t think of any reasons why that would be true. But I felt better what made me finally feel better was the real academics, not me. I’m just a simple country law professor. But the real academics, Adam Bonica and Maya Sen, the political scientists with the PhD, the people from Stanford and Harvard not Vanderbilt, the real ones. They did a similar study and I did similar problem and they had some fancy statistical techniques that are way over my head to deal with the missing data problem. They concluded after using their fancy statistical techniques, which are way over my head, they were good enough for the peer review journals that they ended up published in. That the missing data would not be significantly different from the observed data. So even though you’re right, we’re missing a big chunk of judges in a lot of the states. I feel I can sleep well at night that I’m not misrepresenting what the whole of the judges look like from the fact I can only observe some of them in the data. On the second question. If we don’t have enough Republican lawyers, how can we ever get enough Republicans on the bench? That’s what I thought you meant by the mumbles. But let me just answer the question that I want to answer then, rather than the one you apparently were trying to ask me. That is, there’s plenty of Republican lawyers to put Republican judges on the bench. There’s only seven justices on the Iowa Supreme Court. I suspect even as liberal as the bar is in Iowa and it’s almost as liberal as the bar in Massachusetts, according to [inaudible] , I think we could find seven Republicans to put onto a court if we needed to. Another question. Should I go off these cards or someone want to stand up, someone brave enough to stand up or do I have to read the card? Read the card. All right. Are the results similarly skewed leftward, if the commission also has members at large onto the lawyers? Now this is a great question. So it’s you? See you should have stood up and took credit for this. So, the states, they use the commissions, they appoint their commissions in different ways. Some of the states like our favorite State of Iowa gives a lot of control of the bar. The bar picks half the commission in Iowa, the lawyers of Iowa elect half of the commissioners, half minus one, the most senior justice is a tie breaker on that commission. So the lawyers control half the commission, the governor controls the other half and there’s the senior justice, gets one vote. Some states, the bar gets a fewer number of slots. Some states, the bar gets no slots, the elected officials all pick the commissioners. So one thing that I wanted to look at as I’m trying to exploit this variation to see can we tease out any differences in the states that have a lot of bar presence versus a little bit of bar presence. I tell you, I really thought it was going to show as the number of bar spots goes up, the skew gets more and more to the left, but I have to be honest with you, I did not find that and it’s shaken me a little bit, because it’s a little inconsistent with my theory. I have to admit that. But what I did find is this, once the bar gets one spot, once the bar picks one spot, the skew pops up. When the bar does not get control of any spots, there’s not much skew. It doesn’t look like much of anything else. Now, I’ll say a few things here. Number one, once we start dividing up, I think the Commission states are maybe 24, if I remember correctly. Once we start dividing them up into these different levels of bar control, it’s getting harder and harder to have enough data to find effects, and so that’s a challenge which we start slicing out narrowly and more and more narrowly. Secondly, the fact that I didn’t find as the effect that I hypothesized I would, really led me to change how I think about the mechanism that is producing the skew. I started all these studies 10 years ago. I did my tone to this 10 years ago. When I did all this 10 years ago, I thought what was going on was, the bar was picking liberal lawyers for judgeships. They wanted to find liberal lawyers for judgeships. I don’t believe that anymore. What I believe, and I think the proof of that is in the fact that the non-partisan election systems produce the exact same skew. I don’t think the merit commissions are trying to find liberal lawyers. I think the merit commissions are not screening for ideology at all, just like non-partisan elections doesn’t. But my point here is, because you are selecting from a pool of left-leaning lawyers, if you do not have a system of selection that screens for ideology, you end up with judges that are just as skewed as the lawyers you are drawing from. So I think in some sense it doesn’t matter, because if you don’t screen you end up with the skew. So screening, in my view, is necessary. I’m going to move on to another question if that’s okay. I see your hand up your honor but I really feel like I should give these other questions, the other questioners could be good. Don’t we want to hear what they have to say? [inaudible] It’s not the presence of any old lawyer, it’s a bar-picked person. I mean, in the same way that the governor can find a republican lawyer to put on the bench, the governor can find Republican lawyers to put on to the Commission. But when the bar picks their people for the Commission, they tend not to be Republicans because the bar looks like it does in that chart there. But let me move on to this next questioner here. What effect, this may be our last one because I got a little signal from Mark there, but what effect if any, do you think the removal of merit and non-partisan will have on the diversity of the bench? Another good question. Won’t this have disparate impact on lower incomes/first-generation lower applicants? This is a very good question, and Professor George may have said something about this earlier today. I didn’t get here in time to hear my fabulous colleague give her talk and I really regret that. So Professor George if I say something that’s incorrect, that contradicts something you said earlier, please stand up and let me know. But when I looked at the data on diversity and selection method, I could not see any clear conclusions about one of those four selection methods producing more gender or racial diversity than another. I was left with the impression, Professor George, was pretty much awash among those methods. Is that what you find too? She’s shaking her head. Yes. So what I would suggest the question writer here is, I don’t think removing those systems is going to have a negative impact on diversity, because I have not been able to identify any advantage in these two systems for diversity. The systems seem to statistically insignificant in any differences that they have on diversity. Should I do one more or should we call it a day? We have Alberto Gonzalez coming up, I don’t want to step on his toes. One more question. Okay. Let’s see here. Here’s one here. Couldn’t the leftward skew of judges in relation to their constituents be explained by both: number one, the correlation between education and liberal leanings; and number two, the fact that judges are more educated than their constituents. So, there’s no doubt in my mind that judges are very well-educated people. There’s no doubt in my mind that lawyers are very well-educated people. But I think that we can find lawyers and judges that are super smart, that are conservative just as much as we can find judges and lawyers that are super smart, that are liberal. I mean Ruth Bader Ginsburg, we’ve been talking about her all day, Notorious RBG, super smart and super liberal. Justice Scalia; super smart, super conservative. We don’t need that many super smart people to fill out the bench. We can find enough of them from both liberal and conservative camps when we want to. So I don’t think the fact that, even if more educated people are more liberal and I do take some issue with that, I’m not sure, even if that’s true there’s enough of us educated conservatives that we could fill up a bench with us if we had to. So I’m going to end it right there and I want to thank you all for inviting me, and carry on. Thank you. [inaudible]. If everyone wants to find their way back to their seats, we’re going to get started. Our next speaker is Dean Alberto Gonzales. Dean Gonzales was the perfect add to our list of distinguished speakers today. He really was enthusiastic about being in Minnesota. Unfortunately, Dean Gonzales had to change his plans at the last minute and will not be able to join us in person. He was, however, gracious enough to make us a video where he responds to questions about judicial selection. Following his remarks, Sybil Dunlop, our president of the Infinity project will provide a reflection on his comments. Mr. Gonzales is originally from Texas and earned his law degree from Harvard Law School. Following graduation, he returned to Texas where he worked as a corporate lawyer at an international law firm. He then went into government work. Mr. Gonzales started as a general counsel to the governor of Texas. He then became the states 100th Secretary of State, where among other things he served as Chief Elections Officer. A few years later, Mr. Gonzales became Justice Gonzales when he was appointed to serve on the Texas Supreme Court. Shortly thereafter, Mr. Gonzales was appointed to a council of the president, a position he held until he became the country’s 80th Attorney General. He was the first Hispanic appointed US Attorney General. Mr. Gonzales currently serves as the Dean and Doyle Rogers distinguished chair at Belmont University College of Law. So if you can all direct your attention to the screen, we’re now going to see his video. How would you describe the Bush administration’s general approach to judiciary? So I will confess that as announced I had not prepared reflections on Mr. Gonzales’ talk but I had prepared to introduce the next section. I will offer two observations, one congratulations on the birth of his grandchild. Two, I am always amazed when people are able to come up with an American flag to place behind them before they give a video. That they just happened to have one laying around. So our next portion here reflects her efforts at the Infinity project to really solicit every single United States senators thoughts on what does it mean to you to have a judiciary that is representative of the people. In thinking about the role that senators have in the advice and consent job that they have in the US Senate for members of the judiciary, we wanted to take a moment to ask senators thinking we could use this video on our website. We certainly weren’t going to torture you with videos from every US senator that we felt would answer us. But we thought we could use video clips on our website showing what the senators think. Interestingly, we asked all of the senators to participate and have three videos to show. We’re going to show Amy Klobuchar a little bit later. Senator Tina Smith has provided a video for us. All of the other senators said, “I’m so sorry but Minnesota is not my constituency and so we’re not going to do that.” Except for one, representative Sheldon Whitehouse from Rhode Island produced a video for us as well. So we will get to see his insightful comments about this topic. There was a joke here to be made about if you represent Rhode Island perhaps you have time because it is such a small state to participate in these things for other states but that would be mean to Rhode Island. So I won’t make that joke and I will just move to our first video here. Hi. I’m Senator Sheldon Whitehouse. What does it mean to me- Now our very own Senator Tina Smith. Hi everyone, I’m Senator Tina Smith and I’m really glad that you’re gathered in Minneapolis- It is now my pleasure to present the Judge Diana Murphy legacy award. Judge Murphy served as an inspiration for the mission of the Infinity project catalyst for the efforts and as a model for all lawyers and judges. The Infinity project established the judge Diana Murphy Legacy Award first to recognize Judge Murphy, for her continued legacy of notable contributions, professional achievements, support for women lawyers and judges and unfailing commitment to equal justice under the law. Second, and in her honor, the award recognizes an individual or organization that advances the admission of Infinity project in one or more of the following ways. Supports, mentors or advances the professional development of women lawyers or judges, displays dedicated leadership and advocacy and contributing to the removal of barriers to the full and equal participation of women lawyers on the bench, and demonstrates the highest levels of personal and professional integrity as a member of the bench and the bar. In some, recipients of the Judge Diana Murphy Legacy Award should model the legacy of excellence that Judge Murphy demonstrated. It is my pleasure this afternoon to present the award to United States Senator Amy Klobuchar. Hello to everyone gathered at the St. Thom- Can Rama Lee please join me up on stage. Thank you. Here on behalf of the senator to accept her award is Rama Lee and the award is actually a Tiffany necklace which we have given to all the recipients in the shape of the Infinity symbol. So please extend this congratulations to the Senator from us and present her with the Judge Diana Murphy Legacy Award gift. Thank you. Good afternoon. I’m Rob Vischer. I have the privilege of serving as the dean here at St. Thomas Law School and I also have the honor of presenting the inaugural Judge Diana Murphy scholarship. Judge Murphy was a longtime member of our Board of Governors. As you know she was a longtime champion and mentor of many women lawyers and judges. She would remark that it was a joy to see how many women have succeeded and that she wanted to help other women. We could think of no better tribute to Judge Murphy than to create an endowed scholarship fund through which to invest in future generations of women lawyers. Our inaugural recipient is Shana Tomenes. Shana, would you join me at the podium? We selected Shana to be the inaugural recipient of the Judge Murphy scholarship because she is already showing the great intellectual firepower, relentless work ethic, and tenacity that marked judge Murphy’s remarkable career. Working three part-time jobs to put herself through college, Shana never lost sight of her commitment to help others. Now, navigating the challenges of law school while raising a young son, Shana still finds time to contribute to the broader community, volunteering for street law in the Washington County Community Circles Program where she helps build bridges among victims, offenders, and community members. She has provided stellar research assistants to Professor Greg Cisc, on his work analyzing the problem of federal law immunizing the federal government from tort liability for sexual assault by its employees. Next week, she will be arguing a prisoner’s rights case in front of the ninth Circuit Court of Appeals as part of our appellate clinic. She is the Managing Editor of the Law Journal. She clerks for the Hennepin County Public Defenders office and next year she will clerk on the Minnesota Supreme Court. Those of you who knew Judge Murphy, know that when the judge liked or approved of what you were saying to her, she would often get a very faint smirk and an almost imperceptible nod to her. That was her demonstrative side. When you’re in conversation with her and Shana, if the judge could see what you have done and continue to do with your considerable gifts, I am confident you would earn the Judge Murphy smirk nod. So, please join me in congratulating Shana Tarminus Well, thank you everyone. When Dean Brabbit contacted me and let me know that I had won this award, I think when she called me, I may be said five words to her. I’m really honored and I’m so excited. I’m honored to have been nominated for the Judge Diana Murphy scholarship and I first want to thank everyone who made this possible for your generosity and also for just, I’m just so honored to be here. So thank you. Judge Murphy was a trailblazer and I’ve heard so many times and I’ve read their scholarship, who cross barriers by ignoring they existed. She went to law school and had two small boys. During a time where she didn’t have the benefit where I do, where half of my class is female. She joined the practice of law and she was once famously told that, as a trial lawyer, a jury wouldn’t accept her as a woman. She then went on to become the first woman Chief Judge of the District of Minnesota, the first woman appointed to the eighth Circuit and the first chair of the United States Sentencing Commission. Her accomplishments are just as important today as they were then. I’m reminded by the saying that the more things change, the more things stay the same. My first month when I start it was at law school. I met with someone in my community and I was trying to do the networking thing I’d heard about and tell her about my path and how I was really excited to be the first person in my family to go to law school and I was really enjoying raising my then three-year-old son. I remember how in that moment her face became a lot more guarded, and how the first words she told me were, that I needed to manage my expectations and that I was really unlikely to achieve both top grades while being a mom. Being just starting law school, I was sleep-deprived, anxious, and generally afraid of my own shadow at that moment and so I remember thinking, oh no, what have I done, how did I make choices that put me to this moment. I wonder if I walked back to the admissions office, if they give me some of my tuition back and luckily, my very next thought was stop. No. You can do this. There is nothing in your background. There’s nothing about your identity as a mother that makes it so that way you can’t do exactly, what you’ve set out to do. There’s no reason why you can’t succeed if you don’t put in the work, and the reason why I was able to have those thoughts and the reasons why I was able to shake that and build that confidence was because people like Judge Murphy and Judge Murphy herself came before me and showed me that path, and I couldn’t be more honored to be a Judge Murphy scholar. I intend to steward her legacy of being a trailblazer by working tirelessly for the common good and most importantly shielding and feeding the light of others who come after me because it’s a shear along and dark path when you have big dreams, and thank you Thank you Shana. That concludes our formal program. I do want to thank our speakers who’ve traveled from across the country to be here with us. I want to thank Lisa Brabbit and Angela Disek who have worked very hard putting this together. I’d like to thank the leadership of Infinity for their ongoing work in this area and their work on this event in particular. I’d like to thank in particular, our students led by Matt Huff, on the law journal and anytime you’re at a law journal symposium, you realize the students have done all this work on top of their regular law school duties. I think this symposium is especially important because, judicial selection is the site of some of our deepest seated and most contentious disagreements. Both principled disagreements and sometimes not very principled disagreements. One of the things we try to do at St. Thomas Law is always be modeling how to lean into those conflicts and unpack the conflict. Not necessarily reach consensus by 3:00 PM after a one-day symposium, but at least to have a little bit better understanding of what the core issues are and what’s distraction. So as part of that modeling of civil and respectful dialogue around difficult issues, we think of no better way to end the day then with some wine and chocolate. So please join us for our reception and thank you for being here.

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