Women Benched: Diversity in Judges is Lacking in the Midwest

by Marie A. Failinger

Woman-man-man-man-man-man-man-man-man.  One woman for every eight men.  If this were the list of management hires at a Fortune 500 company or virtually any workplace for the last 17 years, everyone would wonder what was going wrong.

Yet, scarcely anyone has noticed that is the pattern of appointments on the Eighth Circuit Court of Appeals, the virtual last word on federal legal disputes in the states of Minnesota, Iowa, Arkansas, Nebraska, Missouri and the Dakotas.  (Every so often the Supreme Court will take a case from the Eighth Circuit on appeal, but that is increasingly rare.)

Judge Diana Murphy, appointed by President Clinton in 1994, is not only the last female judge to be appointed to that bench.  She is the only female judge in the court's 120-year history, during which 60 male judges have been appointed.  Although currently the First Circuit also has only one woman, the Eighth Circuit historically has the "worst diversity" in the country on gender.  Things don't have to be this way:  the Ninth Circuit Court of Appeals, on the West Coast has 8 women, comprising 42% of that court.   

One woman isn't good enough.  We need women's perspectives on every court of the Eighth Circuit, but especially the court of last resort for most cases. A volunteer organization of lawyers, women's advocates and others called The Infinity Project, which began in Minneapolis four years ago, is spreading the word among women's groups, the bench and the bar about the need for change. One critical example of how gender makes a difference was the 2009 Supreme Court case involving 13-year-old Savana Redding who was strip-searched in her school in order to find "contraband" ibuprofen (not found on her.)  Only Justice Ginsburg, the lone woman on the Court at that time, could explain how a young girl's experience of being forced to remove her clothing was different, an experience that the other justices clearly did not understand.

Women judges bring different experiences and perspectives to judging that enhance the quality of justice, especially when judges decide cases as a group, as in the Eighth Circuit.  Even if the legal rules they apply are the same, women judges often have a deeper understanding of the plight of women litigants in cases from sexual harassment and pregnancy discrimination to drug cases where women are swept up in their boyfriends' trafficking.  As just one example, it was Judge Murphy who wrote the opinion in Shawanna Nelson v. Correctional Medical Services, decided in 2009, explaining why shackling an imprisoned woman who was giving labor constituted cruel and unusual punishment, a reality lost on the Arkansas correctional officials who pinned her down.

It also appears that many highly qualified women are being overlooked for federal judicial positions, among the most important in the country, because they have not had time to develop the professional networks that bring them close to those who decide judicial appointments, like U.S. Senators or White House staff.  Others who are brilliant lawyers and judges have less judicial experience because of career choices they have made on behalf of their families.  Sometimes even the most accomplished women lawyers and judges are reluctant to put their names forward because they believe they won't measure up, while their male counterparts with even less experience simply assume that they are qualified for the position and deserve to get it.

We need to shine the light on the need for more women on the federal bench, to ensure that every citizen gets the more accurate justice that gender balance delivers and trusts that the system is fair.   At the same time, we need to encourage those who feel the same to start asking their elected officials why highly qualified women aren't being sought and appointed to judgeships in the Eighth Circuit.  Highly qualified women with diverse backgrounds and perspectives need to step forward to be considered for these seats. Younger women lawyers should know about the essential experiences and connections they need to have in order to have a reasonable chance at succeeding, should they decide to apply for a federal judicial opening later in life. 

With more gender-diverse federal courts, women can look forward to more informed and thoughtful judicial responses to legal problems they face every day, from unjust wage disparities to judicial indifference to domestic violence.      

Marie A. Failinger is president-elect of the Infinity Project, a volunteer organization of lawyers, women's advocates and others based in Minneapolis.  Failinger is a professor of law at Hamline University School of Law and the editor of the Journal of Law and Religion.

Go here for information on the Infinity Project

image by U.S. Government in the Public domain, via Wikimedia Commons