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Excerpted from: Kristine L. Avena, Judges of Color: Examining the Impact of Judicial Diversity in the Equal Protection Jurisprudence of the United States Court of Appeals for the Ninth Circuit, 46 Hastings Constitutional Law Quarterly 221 (Fall, 2018) (Student Note(141 Footnotes) (Full Document)

For too many people ... law is a symbol of exclusion rather than empowerment.
- Former Attorney General of the United States, Eric Holder, 2002


KristineLAvenaArticle III, section 1 of the Constitution states, “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” This imperative provision of the Constitution establishes the judiciary branch and maintains the balance of powers within the federal government. At a time when the executive branch is banning religious minorities from traveling into the country and stripping children away their parents at the U.S.-Mexico border, the courts have become the last resort for many during this critical period of history. However, for much of America's history, the legal system has been devoid of the compassion and empathy needed for judges to fully comprehend the impact of their decisions on ordinary people. People of color, who have historically faced unique experiences because of racialdiscrimination and its legacy, are often victims of this need for empathy. Thus, much like the fundamental equality that emanates from a diverse Congress, the participation of diverse judges in the judiciary is vital to the assurance of fairness, legitimacy, and due process in decision-making.

From slavery to civil rights to affirmative action, America's history has been plagued with the issue of race. The federal bench is no exception. For almost two centuries, the highest court of the nation did not represent the public that it served. It was not until 191 years after the founding of America that the U.S. Supreme Court bench enjoyed the presence of a diverse judge with Justice Thurgood Marshall. Then in the 1970s, due mainly to President Jimmy Carter's initiative to appoint more minority judges, the racial composition of the federal judiciary began to diversify significantly. However, while the number of minority judges increased in the past two centuries, the federal courts still do not reflect today's society. The total composition of Article III judges currently includes: 3.4% Asians, 10.6% Hispanics, and 14.2% AfricanAmericans, compared to 72% Whites. This composition is still less diverse than the current population of the United States, which is 6% Asian, 18% Hispanic, 12% AfricanAmerican, and 61% White. In fact, a study by political science Professors Rorie Solberg and Eric N. Waltenburg reveals that the federal bench is becoming less diverse even as the United States is growing more diverse.

This Note aims to determine how the presence of minority judges on the United States Court of Appeals for the Ninth Circuit impacts Equal Protection doctrine. The Ninth Circuit, which consists of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington, is the largest and most diverse federal appellate bench in the nation. This Note shows that a Ninth Circuit judge's race is important in providing procedural and substantive contributions to the federal bench. Diverse judges use their life experiences to ensure that every person is heard and treated fairly, thereby instilling public confidence in the legitimacy of the court and educating their colleagues on the panel on the unique issues that minority groups encounter. However, this Note also proves that race alone does not influence the court's equal protection jurisprudence due to two major factors: the Ninth Circuit, as an appellate court, is bound by the decisions of the U.S. Supreme Court, and judges are committed to their duty to “faithfully and impartially” uphold the Constitution.

This Note applies the definition of a “minority” from the Equal Employment Opportunity Commission (“EEOC”). According to the EEOC, a minority is “the smaller part of a group.” These groups consist of: American Indian or Alaskan Natives, Asian or Pacific Islanders, Blacks, and Hispanics. Currently, there are 11 racially diverse judges out of 41 judges on the Ninth Circuit: Carlos Tiburcio Bea, Consuelo María Callahan, Jerome Farris, Ferdinand F. Fernandez, Mary H. Murguia, Jacqueline H. Nguyen, Richard A. Paez, Johnnie B. Rawlinson, A. Wallace Tashima, Kim McLane Wardlaw, and Paul J. Watford. Approximately 27% of the 41 judges on this federal appellate bench are diverse, thus comprising of three African-Americans, two Asians, and six Hispanics. Individually, these judges have unique life experiences that they bring to the bench-Judge Bea faced the threat of deportation, Judge Nguyen fled her home country as a refugee during the Vietnam War, and Judge Tashima was interned as a Japanese American during World War II. This Note addresses the impact that those distinctive life experiences bring to the bench.

Part I of this Note begins by reviewing the impact of race on the equal protection doctrine.

Part II provides an overview of past research and methodology, and how it differs from this Note.

Next, Part III evaluates and compares personal interviews with four Ninth Circuit judges with the outcomes of eight equal protection cases regarding criminal, education, voting, and immigration claims.

Last, Part IV discusses the implications of this study and the benefits of a diverse judiciary.

. . .

The current Administration has exhibited an indifference to the value that a diverse judiciary brings to a legitimate government structure. Because judicial diversity is not a priority on President Donald Trump's political agenda, the number of racial minorities on the bench may decline. This detrimental shift against judicial diversity is evidenced in President Trump's recent federal judicial nominees, which have been 91% White and 81% male. President Trump's choice of nominees starkly contrasts President Barack Obama's legacy of diversifying the courts, as President Obama “was the first President for whom nontraditional nominees comprised a majority (69%) of all those he appointed as circuit court judges.” In contrast, President Trump's nominees to the Ninth Circuit, along with his hostile perception of the federal circuit court, foreshadows a possible unfortunate decrease in judicial diversity in the coming years.

By demonstrating the invaluable contributions that judicial diversity brings to the judicial branch, this Note suggests that failing to diversify judicial appointments comes at a cost. Although judicial diversity does not play a significant role in influencing equal protection doctrine, the value that minority judges bring to the federal judiciary should not be overlooked. Minority judges exhibit a “heightened awareness” of the issues that disadvantaged people face. Due to this special perspective, diverse judges are more able to fully comprehend the impact of their decisions on the people they serve and give credence to a “color-blind” Constitution. As judges of color, they bring a greater quality to the Ninth Circuit that was absent for centuries. Their ability to faithfully interpret the law, despite its tension with their closely-held personal beliefs, adds a vital layer of legitimacy and democracy to the United States Court of Appeals for the Ninth Circuit.

J.D. Candidate 2019, University of California, Hastings College of the Law; B.A. 2016, Chapman University.