Addressing the Lack of Latinos on the Federal Bench

In the words of U.S. District Court for the Southern District of Mississippi Judge Carlton W. Reeves: “To find truth, we need all angles, all distances and all perspectives.”

Yet the composition of the federal judiciary does not reflect the various perspectives and experiences of those who are served by our nation’s courts.

President Biden’s campaign promise to nominate judges “who look like America” sparked some hope for a more diverse judiciary. But the confirmation process of Justice Ketanji Brown Jackson, the first Black woman ever appointed to the U.S. Supreme Court, demonstrates how challenging a goal this is.

Jackson faced vehement opposition despite being exceptionally qualified for the post, which only brings into relief the difficult path faced by those who are not White, heterosexual men to even be considered for appointments to the federal bench.

In his first year in office, President Biden has already nominated more Latinos to the federal bench (15) than his predecessor appointed in four years; President Trump nominated nine Latinos to the federal bench. And Latinos make up 20% of Biden’s nominees.

Despite these laudable efforts, the federal bench is far from coming close to “look like America.” Indeed, it will take a Herculean effort to get us there within a generation, even two.

Low Representation in Federal Courts

Of the approximately 1,770 judgeships in 209 courts in the federal court system—which in addition to the Supreme Court includes courts of appeal, district courts, bankruptcy courts, and courts on specific subject matters—only about one in five sitting judges is non-White, according to a 2019 study by the Center for American Progress.

This is far below the 38% of the U.S. population who identify as Black, Latino, and/or Asian American. The percentage of people of Hispanic descent on the federal bench has remained practically unchanged since Justice Sonia Sotomayor was confirmed to the Supreme Court in 2009 as the first Latina and third woman in the highest court in the land.

Filling every one of the current 76 vacancies (as of April 18) on federal courts with non-White candidates would only narrow the representation gap by 8 percentage points.

Why does it matter what judges look like or what lives they have lived? For starters, research from the Brennan Center shows that a diverse judiciary “helps instill trust in the justice system among underrepresented communities.”

We witnessed a monumental shift in this area among Latino communities when Justice Sonia Sotomayor joined the Supreme Court. After her confirmation, one Bronx, N.Y., Latina resident of the same housing project where Sotomayor grew up, said, “I’m glad that Sotomayor became Supreme Court Justice because it gives my daughter a better chance of becoming someone. It’s like an idol. And she could see that someone from the projects could become someone big.”

In addition, diversity of life experience and perspectives promotes a more equitable jurisprudence. When there are judges from different backgrounds, it allows for deliberation from all angles, as Judge Reeves emphasized. Life experiences frame how judges interpret the law, and the impact of their rulings on our communities.

Overcoming Barriers

Many of the factors that contribute to the dearth of federal judges who are Latino (or otherwise non-White) are similar to the barriers that inhibit them from entering other legal professions. These include low undergraduate graduation rates despite record college enrollment rates, fewer Latinos in the Ivy League and other selective institutions where future judges have studied, low enrollment in law school, and the daunting cost of a law degree.

Few Latino law students make it past the Bar exam. That is, for those that pass the exam, few become practicing members of the profession, and even fewer go from being lawyers to becoming judges.

Only 4.8% of all U.S. lawyers are Latino, despite the fact that we make up almost 19% of the U.S. population. Latinos are missing in action in prosecutor jobs and have lower percentages of representation in the large private law firms, compared to White attorneys, that feed the bench.

Many Latinos do not have the benefit of the mentorship and career advice that would encourage them to consider becoming a judge, and to meet the unspoken benchmarks that it takes to move into the federal courts.

Moreover, the process for securing a judicial nomination is often—and unnecessarily—opaque, if not downright secretive, such that lawyers of color who wish to be considered for these posts do not know even where to start. Without guidance to unlock key markers and secure recommendations from those who draw up nominee lists, it’s no wonder the numbers are so dismal.

As the Center for American progress suggested in a 2020 article, decision-makers at every key juncture of the pipeline to becoming a judge can make meaningful changes to improve demographic and professional diversity in the federal bench. Our organization agrees with many of these suggestions, including: having law schools expose students to judges and judicial careers as part of their curricula, asking the government to make public interest practice more affordable through robust loan forgiveness, and systematizing hiring for clerkships so the process is less dependent on personal bias.

Also important is for Latino youth to get mentorship from those in the profession who understand their challenges and can guide through, such as that provided in our own CAP Leadership Institute. Sotomayor herself served on our board of directors for many years and was very involved in LatinoJustice’s education programs.

Our goal is to support more Latinos to follow in her tracks—or make their own—so that they can use and challenge the law to create a more just society.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Lourdes M. Rosado is the president and general counsel of LatinoJustice PRLDEF. She previously served as program director at the New York Civil Liberties Union, and as the chief of the Civil Rights Bureau in the New York State Office of the Attorney General.

Roasado wishes to thank Taylor Szabo for her research and assistance on this article.