[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                    THE IMPORTANCE OF A DIVERSE FEDERAL 
                                JUDICIARY

=======================================================================

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        THURSDAY, MARCH 25, 2021

                               __________

                           Serial No. 117-15

                               __________

         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

               Available via: http://judiciary.house.gov
                       
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
45-904                     WASHINGTON : 2022                     
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

        PERRY APELBAUM, Majority Staff Director & Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

             HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
                  MONDAIRE JONES, New York, Vice-Chair

THEODORE E. DEUTCH, Florida          DARRELL ISSA, California, Ranking 
HAKEEM JEFFRIES, New York                Member
TED LIEU, California                 STEVE CHABOT, Ohio
GREG STANTON, Arizona                LOUIS GOHMERT, Texas
ZOE LOFGREN, California              MATT GAETZ, Florida
STEVE COHEN, Tennessee               MIKE JOHNSON, Louisiana
KAREN BASS, California               TOM TIFFANY, Wisconsin
ERIC SWALWELL, California            THOMAS MASSIE, Kentucky
MONDAIRE JONES, New York             DAN BISHOP, North Carolina
DEBORAH ROSS, North Carolina         MICHELLE FISCHBACH, Michigan
JOE NEGUSE, Colorado                 SCOTT FITZGERALD, Wisconsin
                                     CLIFF BENTZ, Oregon

                      JAMIE SIMPSON, Chief Counsel
                     BETSY FERGUSON, Senior Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                        Thursday, March 25, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................     1
The Honorable Darrell Issa, Ranking Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of California..................................................   101
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................   102

                               WITNESSES
                               Panel One

The Honorable Carlton W. Reeves, District Judge, United States 
  District Court, Southern District of Mississippi
  Oral Testimony.................................................   104
  Prepared Statement.............................................   107
The Honorable Frank J. Bailey, Bankruptcy Judge, United States 
  Bankruptcy Court, District of Massachusetts
  Oral Testimony.................................................   110
  Prepared Statement.............................................   112
The Honorable James C. Ho, Circuit Judge, United States Court of 
  Appeals for the Fifth Circuit
  Oral Testimony.................................................   116
  Prepared Statement.............................................   118
The Honorable Edward M. Chen, District Judge, United States 
  District Court, Northern District of California
  Oral Testimony.................................................   121
  Prepared Statement.............................................   124

                               Panel Two

The Honorable Bernice B. Donald, Circuit Judge, United States 
  Court of Appeals for the Sixth Circuit
  Oral Testimony.................................................   132
  Prepared Statement.............................................   135
Ms. Maya Sen, Professor of Public Policy, Harvard Kennedy School
  Oral Testimony.................................................   157
  Prepared Statement.............................................   159
Mr. Peter N. Kirsanow, Partner, Benesch, Friedlander, Coplan & 
  Aronoff, LLP and Commissioner, U.S. Commission on Civil Rights
  Oral Testimony.................................................   168
  Prepared Statement.............................................   170
Ms. Stacy Hawkins, Professor of Law, Rutgers Law School
  Oral Testimony.................................................   173
  Prepared Statement.............................................   175

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Materials submitted by the Honorable Henry C. ``Hank'' Johnson, 
  Jr., Chair of the Subcommittee on Courts, Intellectual 
  Property, and the Internet from the State of Georgia for the 
  record
  A letter from Clark M. Neily, III, Senior Vice President, Cato 
    Institute....................................................     6
  A report entitled, ``Pipelines to Power: Encouraging 
    Professional Diversity on the Federal Appellate Bench,'' 
    Center for American Progress.................................    17
  A report entitled, ``Building a More Inclusive Federal 
    Judiciary,'' Center for American Progress....................    45
  A letter from the Leadership Conference on Civil and Human 
    Rights.......................................................    97
An essay entitled, ``How Blind Should Lady Justice Be?'' Law & 
  Liberty, submitted by the Honorable Darrell Issa, Ranking 
  Member of the Subcommittee on Courts, Intellectual Property, 
  and the Internet from the State of California for the record...   192

                                APPENDIX

Materials submitted by the Honorable Henry C. ``Hank'' Johnson, 
  Jr., Chair of the Subcommittee on Courts, Intellectual 
  Property, and the Internet from the State of Georgia for the 
  record
  A letter from the Alliance for Justice.........................   214
  A chart from the National Asian Pacific American Bar 
    Association of APA judges by federal judicial district.......   217
  A letter from Lawyers' Committee for Civil Rights Under Law....   218
  A letter from 22 organizations in support of the hearing.......   220
  A letter from Tricia (CK) Hoffler, President, National Bar 
    Association..................................................   222
  A letter from the Honorable Frank J. Bailey, President, 
    National Conference of Bankruptcy Judges.....................   223
  An article entitled, ``The Federal Bench Must Reflect the 
    Racial, Ethnic, and Gender Diversity of the United States,'' 
    Lawyers' Committee for Civil Rights..........................   227

 
             THE IMPORTANCE OF A DIVERSE FEDERAL JUDICIARY

                              ----------                              


                        Thursday, March 25, 2021

                     U.S. House of Representatives

             Subcommittee on Courts, Intellectual Property,

                            and the Internet

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 2:09 p.m., via 
Webex, Hon. Henry Johnson [Chair of the Subcommittee] 
presiding.
    Present: Representatives Johnson of Georgia, Nadler, 
Deutch, Lieu, Stanton, Lofgren, Cohen, Jones, Ross, Neguse, 
Issa, Jordan, Chabot, Gaetz, Johnson of Louisiana, Tiffany, 
Massie, Bishop, Fischbach, Fitzgerald, and Bentz.
    Staff Present: Madeline Strasser, Chief Clerk; Moh Sharma, 
Member Services and Outreach Advisor; Jordan Dashow 
Professional Staff Member; Cierra Fontenot, Staff Assistant; 
John Williams, Parliamentarian; Jamie Simpson, Chief Counsel; 
Danielle Johnson, Counsel; Matt Robinson, Counsel; Rosalind 
Jackson, Professional Staff Member; Betsy Ferguson, Minority 
Senior Counsel; Ken David, Minority Counsel; Andrea Woodard, 
Minority Professional Staff Member; Darius Namazi, Minority 
Research Assistant; and Kiley Bidelman, Minority Clerk.
    Mr. Johnson of Georgia. The Subcommittee will come to 
order.
    Without objection, the Chair is authorized to declare 
recesses of the Subcommittee at any time.
    Welcome to this afternoon's hearing on ``The Importance of 
a Diverse Federal Judiciary.''
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of today's 
hearing. If you would like to submit materials, please send 
them to the email address that has been previously distributed 
to your offices and we will circulate the materials to Members 
and staff as quickly as we can.
    I would also ask all Members to mute your microphones when 
you are not speaking. This will help prevent feedback and other 
technical issues. You may unmute yourself anytime you seek 
recognition. I now recognize myself for an opening statement.
    I often underscore the judiciary's vital role in our great 
democracy. The courts are tasked with the sacred duty of 
administering justice and upholding the rule of law, and they 
must do so fairly and impartially. Yet these duties are only 
part of the equation that ensures that the judicial system runs 
smoothly. The public must also be confident that the system is 
as fair, impartial, and just as it pledges to be. Today we 
explore an important part of ensuring the public's confidence 
in the courts and creating an equitable judiciary, and that is 
the diversity of the Federal bench.
    By many metrics, today's judiciary is notably nondiverse 
and fails to reflect the communities it serves. Approximately 
\3/4\ of Article III judges identify as White, while about \2/
3\ of Article III judges are men, leaving women and people of 
color largely underrepresented on the bench.
    Some circuit-level examples highlight this striking 
dispropor-tionality. The Eleventh Circuit, for example, which 
encompasses Georgia, Alabama, and Florida, States that have 
been historically rich with diverse population and that today 
include a population that is roughly half people of color, 80 
percent of the Eleventh Circuit's active judges are people--80 
percent of the Eighth Circuit's active judges are White. Just 
two circuit judges are people of color.
    Today we will hear from the Honorable Bernice Donald of the 
Sixth Circuit which includes Tennessee, Kentucky, Ohio, and 
Michigan, States that also have a rich and diverse history. 
Somehow in 2021, Judge Donald remains the first and only Black 
woman to serve on that circuit.
    Other circuits tell a similar story. It is staggering that 
in today's age there are so few opportunities for 
underrepresented communities to see themselves reflected on the 
bench. We are, of course, in a better place than we were 
decades ago. Courts were even more overwhelmingly White and 
even more overwhelmingly male, but the incremental progress we 
have since made is not a success story. Efforts to further 
diversify the bench have even regressed in recent years. As 
today's numbers show on their face, there is a lot more work to 
be done.
    Diversity beyond demographic metrics also matters. 
Currently, judges' backgrounds tilt toward those with 
prosecutorial experience, with educational credentials that 
lean toward a limited set of law schools. We are left without 
the value of wide-ranging professional and educational 
experiences that would enhance our Nation's courtrooms.
    Now, why does this matter? A diverse judiciary is vital to 
maintaining the public's confidence in the courts. The public 
perceives a judiciary that reflects a cross-section of its 
community as fairer with the potential to be better 
understand--or excuse me--with the potential to better 
understand their realities.
    Judicial decision-making is also enhanced when the bench is 
diverse. A variety of narratives and perspectives must be 
considered and weighed, and no one set of values can dominate.
    As one judge once put it, quote, ``I think everybody is 
applying the same law but you may be able to see more angles. 
The more angles, the better the decision,'' end quote.
    This is the first time at least in recent history that the 
Committee has focused squarely on the issue of a diverse 
Federal judiciary. Today's esteemed witnesses bring important 
perspectives on the vital role diversity plays, and I look 
forward to having a productive dialogue.
    Without objection, I would like to enter into the record a 
statement from the Cato Institute, two reports from the Center 
for American Progress, and a letter from the Leadership 
Conference on Civil and Human Rights.
    [The information follows:]
    

                 MR. JOHNSON OF GEORGIA FOR THE RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Johnson of Georgia. It is now my pleasure to recognize 
the Ranking Member of the subcommittee, the gentleman from 
California, Mr. Issa for his opening statement.
    Mr. Issa, you may begin.
    Mr. Issa. Thank you, Mr. Chair, and thank you for holding 
this hearing.
    The subject of the hearing was no surprise to me and, as we 
seek to expand the court in the months to come, perhaps as many 
as 75 or 80 new Members, it is certainly my hope and I join 
with you in believing that the new entrants to the court will 
represent the best and the brightest of those who have prepared 
and are able to assume one of the most difficult jobs there is 
and that is to fairly execute the Constitution from a position, 
lifetime position, of great power.
    I will find some differences and I believe our witnesses 
will show some differences not in the goal and not in the 
benefit but, in fact, in some preferences that I think people 
sometimes miss. Without a doubt, when we have community 
policing, we want to make sure that they represent the 
community they live and work in. I specifically remind us that 
police and fire and others who live and work in a community 
tend to be extremely vested and, of course, familiar both with 
the people and the neighborhoods.
    When we seek a jury, as everyone on both sides of the dais 
know, the jury is often selected by an adversarial relationship 
of a plaintiff and defendant, that, in fact, each is trying to 
find a jury that most closely understands their view that they 
will argue for.
    What is different and I believe unique and we will see 
today is the role that the impartial individual who sits on the 
dais, sometimes with a background in as a prosecutor, sometimes 
in defense, sometimes in civil litigation, very seldom, quite 
frankly, with specifics of what they will have before them, 
whether it is labor law, patent, or other criminal or civil 
prosecutions and they have to be able to look to the law but, 
more importantly, they need to be able to look at both sides, 
listen to both arguments, and compare it with the law on the 
Constitution.
    I believe that we will show today, although the goal of 
more women and more broadly diversity, that we also recognize 
that we want to select, going forward, the best and the 
brightest and most qualified and that there is no history at 
the Federal bench of people making different decisions based on 
their economic position in life or their distinctions at birth, 
whether it is color or gender.
    So, I am looking forward to us and I really believe the 
Chair has picked an appropriate subject for us to look at when 
we are preparing to expand the court but I also believe that we 
are going to find that, properly chosen, these justices and 
judges will, in fact, execute in a way that cannot be predicted 
based on any part of their birthrights, if you will, of 
citizenship, of color, or of gender.
    Lastly, I would like to put one piece of levity into this. 
I for one would like to see at some point more diversity on the 
Supreme Court. It appears as though you must go to Harvard or 
Yale to be considered in many cases and, as someone who 
graduated from an Ohio State University, I certainly would hope 
that we reach out and find justices that have gone beyond just 
a handful of Ivy League colleges.
    With that, I appreciate the opportunity to attend this 
hearing and to participate.
    I yield back.
    Mr. Johnson of Georgia. I thank the gentleman from 
California.
    I am now pleased to recognize the Chair of the Full 
Committee, the gentleman from New York, Mr. Nadler, for his 
opening statement.
    Chair Nadler. Well, thank you, Mr. Chair.
    Mr. Chair, I will begin my remarks by quoting from the 
confirmation hearing of a current Supreme Court Justice.
    ``When I get a case about discrimination, I have to think 
about people in my own family who suffered discrimination 
because of their ethnic background or because of religion or 
because of gender,'' the Justice said, ``and I do take that 
into account.''
    This statement was a frank acknowledgment that our Federal 
judges bring their life experiences with them to the bench and 
that those experiences inevitably inform their work, and it 
goes to the heart of why this hearing is so important.
    The Justice also explained that, ``I am who I am in the 
first place because of my parents,'' telling the Senate 
Judiciary Committee that, ``My father was brought into this 
country as an infant, grew up in poverty, and could not find a 
job as a teacher because of the discriminatory hiring practices 
prevalent at the time.''
    Our Federal courts are made better by having Justices whose 
family experiences with poverty and immigration and 
discrimination are so powerful that they not only made that 
experience part of the record of their confirmation hearing, 
but they also declared that they have to take that experience 
into account when deciding cases.
    These words were spoken by Justice Samuel Alito at his 
confirm hearing in 2006. I think most Americans would agree 
with what Justice Alito said and they would be glad to have 
judges who understand that their own and their colleagues' very 
backgrounds, perspectives, and life experiences make our 
judiciary stronger.
    I also think most Americans, especially most young people, 
would take for granted the idea that our courts should reflect 
the incredible diversity of our country. Unfortunately, we have 
a lot of work to do when it comes to judicial diversity. There 
are ways in which the Federal judiciary of 2021 looks 
uncomfortably similar to the Federal judiciary of 1921, just a 
few years after Justice Brandeis became a target of anti-
Semitic opposition to becoming the first Jewish Supreme Court 
Justice.
    Somehow, despite all our progress, today's Federal judges 
remain, for instance, overwhelmingly male, White, former 
prosecutors or corporate lawyers who went to a handful of law 
schools as Mr. Issa mentioned.
    There is only one female judge among the eight circuits' 15 
active Members, and she is the only the second woman ever to 
serve on that court. There had been no Black judges in the 
Seventh Circuit at all which encompasses Illinois, Wisconsin, 
and Indiana since 2018, after the first person of color ever to 
serve on that circuit retired. There is just one Hispanic judge 
on the 10th Circuit which includes Colorado, New Mexico, 
Kansas, Oklahoma, Utah, and Wyoming. There has never been a 
Native American judge on any court of appeals.
    We need to come to terms with why our Federal courts remain 
so strikingly nondiverse in so many ways. I am not just 
referring to characteristics like race, gender, ethnicity, 
religion, or disability. Why, for example, are there so few 
judges who are public defenders, civil rights lawyers, 
plaintiffs' attorneys, legal aid attorneys, or small business 
attorneys? Our judiciary would be enriched if we had more 
judges with a broader range of legal experiences and education.
    We must also consider the consequences this lack of 
diversity has on the broader judicial system. For example, 
Americans are many times more likely to appear in bankruptcy 
court than in any other Federal court, but bankruptcy judges 
are the least racially and ethnically diverse judges in the 
entire Federal judiciary and they are not even proper Article 
III judges.
    That is especially concerning, because bankruptcy judges 
are appointed by a majority vote of the Court of Appeals judges 
in their circuit. As I just mentioned, they are not even 
Article III judges.
    Since this is an area in which the Federal judiciary can 
address its diversity problem without help from Congress or the 
President, I hope we will make improving diversity among 
bankruptcy judges a priority.
    Ultimately, we need to remind ourselves of what most 
Americans understand, that a diverse Federal judiciary enhances 
public faith in the courts and improves the judicial process.
    I want to thank Mr. Johnson for holding this hearing. I 
look forward to hearing from our witnesses about this important 
topic.
    I yield back.
    Mr. Johnson of Georgia. I thank the gentleman from New 
York.
    I now recognize the distinguished Ranking Member of the 
Full Committee, the gentleman from Ohio, Mr. Jordan.
    Mr. Issa. Mr. Chair, the Ranking Member will pass at this 
time. Thank you.
    Mr. Johnson of Georgia. All right. Thank you, Congressman 
Issa.
    We will now begin with the introduction to Panel One, the 
Honorable Carlton W. Reeves is a District Judge for the 
Southern District of Mississippi. After law school, Judge 
Reeves clerked for the Honorable Reuben V. Anderson of the 
Mississippi Supreme Court. He subsequently worked as a staff 
attorney for the Supreme Court of Mississippi and in private 
practice.
    From 1995 to 2001, Judge Reeves served as Chief of the 
Civil Division of the Office of the United States Attorney for 
the Southern District of Mississippi. In 2001, he opened his 
own firm, Pigott Reeves Johnson, in Jackson, Mississippi.
    During this time Judge Reeves served on the board of 
several civic organizations including the ACLU of Mississippi, 
the Mississippi Center for Justice, and the Magnolia Bar 
Association. Judge Reeves earned his B.A. from Jackson State 
University and his J.D. from the University of Virginia. 
Welcome, Judge.
    The Honorable Frank J. Bailey is a Bankruptcy Judge on the 
bankruptcy court for the District of Massachusetts. He was 
appointed in 2009 and served as chief judge from 2010 to 2015. 
Judge Bailey also sits on the Bankruptcy Appellate Panel for 
the First Circuit. He has served as the First Circuit Governor 
and Chair of the Education Committee for the National 
Conference of Bankruptcy Judges.
    Before his appointment, Judge Bailey was a partner at a law 
firm where he served as the Chair of the litigation department. 
He has taught as an Associate Professor at Boston University, 
Suffolk University, and the New England School of Law. He 
earned his undergraduate degree at Georgetown University's 
School of Foreign Service and his J.D. from the Suffolk 
University Law School. Welcome, Judge Bailey.
    The Honorable James C. Ho is a Circuit Judge for the Fifth 
Circuit Court of Appeals. Judge Ho clerked for Judge Jerry 
Edwin Smith of the Fifth Circuit Court of Appeals and then 
entered private practice. He served in the Civil Rights 
Division of the Office of Legal Counsel in the Department of 
Justice.
    From 2003 to 2005, he was Chief Counsel for the Senate 
Judiciary Committee under Senator John Cornyn. He then clerked 
for Supreme Court Justice Clarence Thomas from 2005 to 2006. 
From 2008 to 2010, Judge Ho was the Solicitor General of Texas. 
Judge Ho earned his B.A. from Stanford University and his J.D. 
from the University of Chicago Law School. Welcome, Judge Ho.
    The Honorable Edward M. Chen is a District Judge for the 
Northern District of California. After law school, Judge Chen 
clerked for Judge Charles Byron Renfrew of the Northern 
District of California and for Judge James R. Browning of the 
Ninth Circuit. After time working in private practice, Judge 
Chen worked as a staff attorney for the American Civil 
Liberties Union. He then served as a United States Magistrate 
Judge in the Northern District of California. Judge Chen earned 
his B.A. and his J.D. from the University of California at 
Berkeley.
    Now, before proceeding with testimony, I remind the 
witnesses that all of your written and oral statements made to 
the Subcommittee in connection with this hearing are subject to 
penalties of perjury pursuant to 18 U.S.C. 1001, which may 
result in the imposition of a fine or imprisonment of up to 5 
years or both. Please note that your written statements will be 
entered into the record in its entirety.
    Accordingly, I ask that you summarize your testimony in 5 
minutes. There is a timer in the WebEx view that should be 
visible on your screen that should help you stay within that 
time limit. For this panel we will not have any questions after 
the witness testifies.
    Judge Reeves, you may now begin.

          STATEMENT OF THE HONORABLE CARLTON W. REEVES

    Judge Reeves. To Chair Johnson, Ranking Member Issa, and 
Members of the subcommittee, I am honored to testify alongside 
my esteemed colleagues, Judge Chen, Judge Donald, Judge Bailey, 
and Judge Ho. Their brilliance is proof that diversity makes 
our justice system strong. Between their words and the 
testimony of renowned academics like Professors Stacy Hawkins 
and Maya Sen and attorney Peter Kirsanow, I am sure you will 
have all the evidence you need to know that we must diversify 
our Federal courts.
    As I prepared my comments, I thought about the only other 
time that I have had the honor and privilege of appearing 
before this august body nearly 11 years ago at my confirmation 
hearing. On that day I was joined by Judge Mary Murguia, Denise 
Casper, Edmund Chang, and Judge Leslie Kobayashi. The room 
looked like America, a country populated by persons of various 
races, colors, sexes, genders, religions, and sexual 
orientations, a representation of the tapestry that has been 
woven to make our more perfect union.
    At the hearing, Senator Durbin asked me the following 
question. Can you talk to us about the importance of racial 
diversity on the Federal bench in Mississippi, given your 
personal experience growing up in Mississippi and your 
knowledge of how far your State has come? My response, in part, 
was that judges serve several functions, role models to other 
lawyers, role models to students, role models to the people who 
come before the court.
    People need to see that they have a chance, that they, too, 
can one day come to the great hall of the Senate and be 
nominated by a President to be a judge. My answer to that 
question today would be the same, as I am reminded every day 
how others perceived my role and purpose through their 
telephone calls, text message, emails, notes, conversations, 
and in-court reactions and statements.
    All I can add to this remarkable panel is a simple plea. Go 
big. Aim high. Be bold. Simply be committed to diversity in the 
third branch of our government. It is a time for boldness 
because our present trajectory risks a crisis of legitimacy. 
More than \2/3\ of Federal judges appointed over the last 4 
years were White men, a group that represents less than \1/3\ 
of all Americans. Thirty percent of Americans in the Seventh 
Circuit are persons of color, but the Seventh Circuit doesn't 
have a single Black jurist. The Fifth Circuit has an enormous 
Latino population. Yet, none of its judges are Latino.
    I am reminded of the raw emotion that a friend and mentor, 
Geraldine Sumpter from Charlotte, North Carolina, experienced 
ten years ago when she stepped to the podium to argue in the 
Fourth Circuit and across from her for the first time in her 
nearly 30 years of practice was a panel of three African-
American judges.
    At this moment, having such a panel is still an illusive 
dream in many of our circuit courts but especially piercing the 
Fifth and Eleventh Circuits, the home of so many of America's 
African-American citizens. I am ashamed to say that my own 
court didn't have a single female Article III judge until 3 
months ago. I appreciate our Senators for fixing that 200-year-
old mistake.
    These are countless and other comparisons reveal a 
disturbing fact. As our country becomes more diverse, our 
courts are becoming more homogenous. In the judicial oath of 
office, we promise to administer justice. An extreme imbalance 
in our courts is a threat to justice. If I have learned one 
thing in my years as a judge, it is this. The diversity 
matters. When our courts are diverse, they better understand 
the complexity of the American experience embedded in every 
case that comes before them. When our courts are diverse, they 
reinforce public trust in our system of government. America 
contains multitudes. So, must this court.
    Righting the ship will take more than a return to past 
practices. While the Obama Administration appointed female 
judges at an unprecedented rate, nearly 60 percent of all 
judicial appointees under the Administration were men. While 
recent decades have seen periodic efforts to spring racial--to 
bring racial and gender diversity to the bench, appointees have 
increasingly shared educational and professional backgrounds. 
Former prosecutors, partners in national law firms, and 
graduates of our Nation's top law schools are overrepresented 
on the bench. We also need insights from other public servants, 
those in the academy, those in small firms, and those who have 
represented the hopeless and dispossessed, the public 
defenders, the immigration lawyers, and the rural legal aid 
lawyers.
    If you go big, aim high, and be bold, you will shape not 
just the next generation of judges, you will encourage change 
of the entire ecosystem of the legal profession, as my friend, 
Melissa Murray points out. In that ecosystem, district judges 
influence the hiring of their own clerks, magistrate judges, 
special masters, receivers, MDL Steering Committees, and the 
clerks of our courts and all those hired into that public 
offices.
    Circuit judges are responsible for their own clerks, 
bankruptcy judges, public defenders, and the clerks of their 
courts. Judges and the lawyers they appoint serve on 
commissions, councils, committees, and other bodies to make 
sure our judicial system fulfils its core missions. Your 
leadership on the courts will have a ripple effect through this 
powerful profession.
    The very fact that I am here before you today is a 
testament to Brown versus Board of Education. After that 
decision was implemented in my Mississippi, I joined the first 
fully integrated class of Mississippi school children. For 12 
years we were fortunate to be in the same classroom with each 
other, developing lifelong friendships and receiving an 
education that prepared us for the world.
    Mr. Johnson of Georgia. Judge?
    Judge Reeves. Yes, sir.
    Mr. Johnson of Georgia. If you could sum up now, you are 
past your 5 minutes.
    Judge Reeves. Okay. I am so very sorry. That decision, its 
bravery and its courage and its moral clarity, I hope you will 
be similarly courageous in shaping the next generations of this 
country. Diversity matters.
    Thank you.
    [The statement of Judge Reeves follows:]
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    Mr. Johnson of Georgia. Thank you, Judge Reeves.
    Judge Bailey, you may begin.

           STATEMENT OF THE HONORABLE FRANK J. BAILEY

    Judge Bailey. Thank you to Chair Johnson, Ranking Member 
Issa, and to Members of the Committee for inviting me to 
testify this afternoon on this very important subject. I have 
submitted a more extensive statement, but I would like to focus 
on just five points.
    My first point is that perceptions of equal treatment may 
matter just as much as the reality of equal treatment when you 
are talking about court appearances. My view on this was formed 
by a personal experience. I was in court early in my judicial 
career, and an unrepresented African American man came to a 
hearing on a motion that he had to lose. There was no chance of 
him winning it. The law wouldn't have allowed it.
    I patiently explained that to him, because he was 
unrepresented, and I gave him the reasons. I explained to him 
that his motion was just premature, that he would later have a 
chance to give us his basis and preserve his rights, and at the 
end of the hearing he looked up at me and he said something I 
hope no other judge ever has to hear but I know we have. He 
said, ``A Black man cannot get a fair hearing in this court.''
    Well, that statement took my breath away. I maintained my 
judicial composure. I calmly asked him to tell me all the 
reasons why he felt that was the case. I explained to him that 
he was wrong in that view, and he had little to say and later 
on, by the way, he won his motion.
    I left the bench and later I thought, of course, he feels 
that way. He walked into a courtroom, and the judge is White. 
All the courtroom staff were White. All the court security that 
he encountered coming in and in the courtroom were also White 
and, if he went to our clerk's office, he would see the 
photographs of our judges on the wall and they were all White. 
So, I realized, it is perceptions that matter. Of course, he 
felt that way.
    My second point, perceptions of equal treatment in my 
court, the bankruptcy court, matter enormously. First, as Chair 
Nadler pointed out earlier, most Americans that encounter a 
Federal judge will encounter a Federal bankruptcy judge. That 
is because of the numbers.
    Second, access to a so-called fresh start through the 
bankruptcy system is preserved by the Constitution, Article I, 
Section 8. So, that right is assured to all Americans and my 
fear is that, unless the court, the judges on the court and our 
staffs, reflect the communities that we serve, it may be that 
people in those communities may not feel that they are welcome 
in our courts and so diversity on the court and the court 
family is enormously important.
    My third point. Diversity on the bench--on the bankruptcy 
bench starts with diversity on the Article III bench. Again, 
Chair Nadler saw this coming when he said that--and I am the 
only Article I judge who is testifying today--Bankruptcy judges 
are appointed by Circuit judges. Circuit judges, where there 
are diverse circuit judges who are Article III, making the 
decision on who gets the appointment to serve as a bankruptcy 
judge, more diverse lawyers will feel comfortable applying.
    My fourth point. Virtually, all my colleagues on the 
bankruptcy bench agree with me that a diverse bankruptcy bench 
is essential to equity and fairness and inclusion in our 
country. I know that because I am serving as the President of 
the National Conference of Bankruptcy Judges, a 100-year-old 
organization that almost all our judges and retired judges are 
Members of and because my fellow judges work tirelessly on 
diversity initiatives every day to increase the participation 
of diverse individuals in our bankruptcy system.
    For example, I will give one, one of many that I could 
give. We have the Blackshear Fellowship Program that we started 
some years ago that offers a diverse--offers diverse lawyers a 
scholarship to attend our annual conference. That brings them 
into contact with 1,500 bankruptcy professionals. Has that 
initiative worked? Well, you could ask Judge Charles Walker 
from Nashville. You could ask Judge Tiiara Patton of 
Youngstown, Ohio. They were both Blackshear fellows. They are 
both now serving on our bench. It worked.
    My fifth and final point is that the need to address 
diversity on our bench is not only critical, but it may be 
urgent. The bankruptcy bench is the least diverse Federal bench 
by far. In its last report on numbers in 2019, the AO's Fair 
Employment Practices office reported that our bench, the 
bankruptcy bench, was under 3 percent African American, 2 
percent Hispanic, 2 percent Asian American, and there were no 
Native American or Pacific Islander judges on our bench.
    In conclusion, Bankruptcy judges deliver bad news to people 
every day. Sometimes it is that you will have to lose your 
home. Other times, it is not you who is going to collect on 
that claim that you were counting on. So, perceptions of 
fairness and equity matter enormously on the bankruptcy bench.
    So, thank you so much, Chair Johnson, Ranking Member Issa, 
and Members of the Subcommittee for taking the time to have 
these very important hearings. Thank you.
    [The statement of Judge Bailey follows:]
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    Mr. Johnson of Georgia. Thank you, Judge Bailey.
    We will now hear from Judge Ho. Judge Ho, you may begin.

             STATEMENT OF THE HONORABLE JAMES C. HO

    Judge Ho. Thank you.
    Chair Nadler, Chair Johnson, Ranking Members Jordan and 
Issa, thank you for inviting me to testify. I am honored to 
join my distinguished colleagues from the judiciary.
    My remarks today are akin to what we judges sometimes call 
``concurring in the judgments.'' We agree on certain core 
principles, but I would like to offer my own reasoning.
    Equality of opportunity is fundamental to who we are and to 
who we aspire to be as a Nation, and to my mind that means two 
things. It means that we must do everything we can to ensure 
that everyone truly has the opportunity to succeed, and it 
means we must never bend the rules to favor anyone. Dr. King 
had it right. ``Choose people based on who they are, not what 
they look like.''
    Let me begin by explaining how I began. I came to America 
from Taiwan at a very young age. So, most kids grow up learning 
English from their parents. I grew up learning English from a 
bunch of puppets from a place called Sesame Street. My 
classmates brought a kid's lunchbox to school. I brought a 
bento box to school. My food seemed normal to me but it smelled 
funny to my classmates or so they would tell me, and I remember 
racial slurs and jokes on the playground and on the football 
field. I also learned that if you work hard and prove yourself, 
you can find your place in America.
    Equality of opportunity is not something to be passive 
about. It is something we should be passionate about. We must 
make sure that everyone has the opportunity to learn and to 
succeed so that win, lose, or draw, at least you got a chance, 
no matter who you are. This is not just a talking point to me. 
It is why I was honored to serve as Co-Chair of the Judiciary 
Committee of the National Asian Pacific American Bar 
Association. It is why I love talking to young lawyers and law 
students of every race and idealogical stripe. It is why always 
say that if anyone is willing to forego other opportunities in 
their careers to enter public service, call me. I will take 
them to lunch and share what I know.
    Here is the kicker. Once everyone has had full and fair 
opportunity to be considered, you pick on the merits. Both the 
Constitution and the Civil Rights Act make clear that it is 
wrong to hire people based on race. That is the law for a wide 
range of jobs. It would be especially wrong, I would submit, to 
select judges based on race.
    It is true I am the only Asian American on my court. I am 
also the only immigrant on my court. I would never suggest that 
a wise Asian would more often than not reach a better 
conclusion than a White judge. That would be antithetical to 
our legal system and poisonous to civil society. No one should 
ever assume that I am more likely to favor Asians, or 
immigrants, or anyone else, or that my colleagues are less 
likely to. Everyone should lose or win based on the law. 
Period. That is why Lady Justice wears a blindfold. That is why 
judges wear Black robes.
    I don't say this because I think race is no longer an issue 
in our country. I have received racist hate mail and racially 
disparaging remarks because of positions I have taken in my 
legal career. I have been treated differently because of the 
race of the person I am married to. I also remember back in 
high school my college admissions advisor tell on me that my 
grades, SAT scores, and activities were all strong enough to 
get me into my top choice of schools if I wasn't Asian.
    Now, I am not saying anything of this here to complain. 
Whatever negative experiences I have had, they pale in 
comparison to the many blessings I have had living in this 
great country. I was not born an American, but I thank God 
every day that I will die an American.
    My point is just that I don't come to my views because I 
think racism is behind us. Rather I come to my views precisely 
because racism is not behind us, because the last thing we 
should do is divide people by race. The last thing we should do 
is to suggest that the racists are right. We don't achieve 
equality of opportunity by denying it to anyone. We achieve it 
by securing it for everyone.
    So, make no mistake. It would be profoundly offensive and 
un-American to tell the world that you are restricting a 
judgeship to Members of only one race. It is offensive to 
people of other races, and it is offensive to people of that 
race, because you are suggesting that the only way they will 
get the job is if you rig the rules in their favor.
    As a judge, I have the profound honor of presiding over a 
naturalization ceremony every year. I do this to celebrate my 
own naturalization now 39 years ago. People from all around the 
world come together in one room for one purpose, to become an 
American. It reminds me that what binds our Nation is not a 
common race or religion or philosophical point of view. What 
unites us is not a common past but a common hope for the 
future, a shared love of freedom, and a mutual commitment to 
the Constitution and to the principle of equality, of 
opportunity.
    Thank you.
    [The statement of Judge Ho follows:]
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    Mr. Johnson of Georgia. Thank you, Judge Ho.
    Ms. Chen, you may begin.
    Judge Chen, you may need to unmute.

           STATEMENT OF THE HONORABLE EDWARD M. CHEN

    Judge Chen. I apologize for that. I hope that doesn't count 
against my time.
    Mr. Johnson of Georgia. No. We will start your time now.
    Judge Chen. Okay. Thank you.
    Chair Johnson, Ranking Member Issa and Members of the 
subcommittee, I am honored to have the opportunity to address 
you today on this very important topic. I would like to 
highlight three points from my more extensive written 
submission.
    Diversity in the judiciary is valuable for three reasons. 
One, it promotes trust and confidence of the public. Two, it 
enhances interrelationships within the bench. Three, it 
improves the quality of decision-making.
    Public trust. To put Chair's remarks about the importance 
of public trust in the courts, I would like to tell you a 
simple story. My colleague, Judge Edward Davila, sits in San 
Jose. He presides over a diverse docket. He is the first Latinx 
judge to sit on our court in 20 years. In a case involving a 
limited English-speaking Latino litigant, Judge Davila 
discussed some procedural matters and then asked the litigant 
if he had any questions. Appearing nervous, the litigant looked 
at Judge Davila and asked, ``Will you be my judge?'' Those 
simple words, freighted with anxiety, bespoke the sense of 
intimidation and alienation too often felt by Members of 
underserved communities. In Judge Davila, that litigant found 
an island of hope in a sea of isolation, hope that he would at 
least be heard and understood.
    This seemingly small, insignificant courtroom moment 
underscores a larger point, that the bench that is reflective 
of the community it serves can be instrumental in securing the 
trust and confidence of the public.
    A word about interpersonal relationships on the bench. A 
diverse bench affords a unique and personal opportunity for 
judges to learn from each other, thereby enriching 
interpersonal relationships. That point was eloquently made by 
Justice O'Connor in her tribute in 1992 to Justice Thurgood 
Marshall. She recounted Justice Marshall's fondness of sharing 
personal stories with other Justices in conference to emphasize 
legal points including stories about the Ku Klux Klan violence, 
jury bias, defending an innocent African American wrongly 
convicted of rape and sentenced to death.
    Judge O'Connor spoke about the impact those stories had on 
her own understanding of the issues confronting the court. As 
she put it, no one could help but be moved by Justice Thurgood 
Marshall's spirit. ``Occasionally in conference meetings I 
still catch myself looking expectantly for his raised brow and 
his twinkling eye, hoping to hear just one more story that 
would perhaps change the way I see the world.''
    As a local example, former chief judge of our district, 
Marilyn Hall Patel, speaks of her experience as the first and 
for many years the only woman on our bench. She describes how 
shh would hear laughter and loud chatter in the judge's 
lunchroom which came to a sudden halt when the sounds of her 
approaching heels reached her male colleagues. One day a 
raucous rally was heard outside the courthouse. One of her 
colleagues asked what is going on. Judge Patel explained it was 
a rally for the International Women's Day. Her colleague then 
jabbed, well, maybe they should have an international men's 
day, to which she replied, that is the other 364 days of the 
year. Judge Patel stood her ground and over time moved the 
needle.
    Finally, about decision-making, the diversity on the bench 
enhances the quality of the decision-making. Take for instance 
credibility determinations. A witness' testimony may seem more 
credible if it is consistent with the judge's experience and, 
conversely, less credible if it remains outside that judge's 
experience. The first African-American chief judge of our 
court, Thelton Henderson, recalled an instance in which a White 
colleague was presiding over a racial harassment trial. That 
judge noted that the plaintiff was generally credible. However, 
the judge still found it hard to believe the plaintiff's 
testimony about racist graffiti found on a locker and a drawing 
of a hangman's noose around a baboon left on his desk.
    While his colleague found that testimony implausible, Judge 
Henderson recounted to him how Members of his own family had 
experienced the very same kind of harassment described by the 
plaintiff and that he found nothing inherently implausible 
about that testimony.
    Diversity also ensures a fuller discussion of legal 
analysis. Take for instance the case of Redding v. Safford 
Unified School District which involved the question of whether 
a strip search of a middle school female student suspected of 
drugs violated the Fourth Amendment. The Supreme Court had to 
determine whether the search was excessively intrusive and less 
than reasonable. During oral argument, one male Justice 
remarked how it wasn't unusual when he was 12 to take off his 
clothes when he had to change for gym. In a later interview, 
Justice Ginsburg explained she needed to facilitate her fellow 
Justices' understanding of what a strip search might mean to a 
teenage girl. As she put it, ``They had never been a 13-year-
old girl. It is a very sensitive age for a girl, and I don't 
think my colleagues, at least some of them, quite understood.'' 
The court ultimately found the search unconstitutional.
    As another example, Virginia v. Black where the court had 
to address the constitutionality of lawmaking in a crime to 
burn a cross. According to press accounts, the initial 
questioning by the court indicated that Members of the court 
seemed inclined to strike the law down as violative of the 
First amendment until Justice Clarence Thomas spoke. Recounting 
the reign of terror visited upon Black communities by the Ku 
Klux Klan, Justice Thomas said that a burning cross is unlike 
any symbol in our society and had no purpose other than to 
cause fear and to terrorize a population.
    According to press accounts, his fellow Justices were rapt, 
and the tenor of the argument turned. The court went on to 
uphold the statute, making it illegal to burn a cross with the 
intent to intimidate others.
    In 1943 and 1944, the Supreme Court upheld the imposition 
of race-based curfews and interment of 120,000 Japanese 
Americans in Hirabayashi and Korematsu. In justifying why 
Japanese Americans could be singled out for mass treatment, 
whereas Americans of German and Italian descent would not, the 
court opined that Japanese Americans were more prone to 
disloyalty and presented a military risk. The court based its 
assumption on its observation that the Japanese have, quote, 
``intensified their solidarity and have in large measure 
prevented their assimilation as an integral part of the White 
population.''
    I ask the question: What if there had been a Japanese 
American Justice on the court? That Justice would likely have 
challenged the false assumption made by his fellow Justices, 
reminding them that \2/3\ of those who were interned were full 
United States citizens, most by birthright, and that, 
therefore, before they were ripped from their homes by the 
internment order, Japanese Americans were inextricably 
integrated into the economy.
    That Justice might have related how they had a nephew who 
had just been elected class President of an integrated high 
school and describe how Japanese-American children were active 
in the YMCA, in the Boy Scouts, that many excelled in all-
American sports like basketball, tennis, bowling, and golf and 
followed baseball as closely as any other American.
    Mr. Johnson of Georgia. Judge Chen, you are now beyond your 
5 minutes. If you would sum up, we would greatly appreciate it.
    Judge Chen. Okay. I just need 30 seconds, Mr. Chair.
    Mr. Johnson of Georgia. Yes sir.
    Judge Chen. That Justice would have told his colleagues 
about their son, nephew, brother who enlisted in the Army, 
along with thousands of other Japanese Americans, to join the 
famed 442nd Regimental Combat Team, the most decorated unit for 
its size in U.S. military history, a regiment that ironically 
was among the first to liberate the concentration camp at 
Dachau.
    So, in closing, I feel there is a cost when voices are 
missing from the room. That cost is not theoretical. It is 
real. Diversity makes for a better judiciary and that, in turn, 
helps fulfill our promise of justice for all.
    Thank you, Mr. Chair.
    [The statement of Judge Chen follows:]
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    Mr. Johnson of Georgia. Thank you, Judge Chen.
    That concludes the panel of today's hearing, and I would 
like to thank the witnesses for their participation and for 
their testimony. Thank you very much.
    At this time, we will transition to the second panel of 
witnesses, and we will give that just a couple of seconds.
    All right. Staff, are we ready? Okay. I have been given the 
okay to begin now with our second panel.
    To introduce our first witness, I will turn to the 
gentleman from Tennessee, Mr. Cohen, for his introduction.
    Mr. Cohen. Thank you, Mr. Chair.
    It is my honor to introduce one of the most distinguished 
jurists in the United States of America, the Honorable Judge 
Bernice Donald.
    Judge Donald was born just south of Memphis in Southaven, 
Mississippi. She went to Memphis State University for 
undergraduate school and for law school. She became an attorney 
and started out with Legal Services. When she was with legal 
services, she appeared before me in 1980 when I had a brief 
interim General Sessions courtship.
    Fortunately, we both left those positions. She became a 
public defender after she was a Legal Services attorney and 
eventually, she was General Sessions judge herself and then she 
became a United States Bankruptcy judge for about 6 years or 7 
years. Then through President Clinton's appointment she became 
a Federal District Court judge, recommended by my predecessors, 
Harold Ford, Sr.
    She served about 16 years in Memphis as an outstanding 
member of our local bench in the Western District of Tennessee 
and then was elevated to the Sixth Circuit about 10 years ago 
by President Barack Obama. She has been an outstanding judge 
and shows how opportunities given can be shown to make justice 
better, to serve with distinction, and to be a very great 
representative and honorable representative of the city of 
Memphis.
    Judge Bernice Donald.
    Mr. Johnson of Georgia. Thank you, Congressman Cohen.
    Welcome, Judge Donald.
    Next, I will introduce Maya Sen who is a Professor of 
Public Policy at John F. Kennedy School of Government at 
Harvard University. Her research covers law, political economy, 
race, and ethnic politics and statistical methods.
    Professor Sen currently serves as the Director of the 
Harvard Multidisciplinary Program in Inequality and Social 
Policy. She is also an affiliate for the Institute for 
Quantitative Social Science, the Taubman Center for State and 
Local Government, and the Ash Center for Democratic Governance 
and Innovation.
    She earned her J.D. from Stanford Law School and a Ph.D. in 
political science from Harvard. She was also a clerk for Judge 
Ron Gilman of the U.S. Court of Appeals for the Sixth Circuit.
    Welcome, Professor Sen.
    Peter N. Kirsanow is a commissioner on the U.S. Commission 
on Civil Rights. He was appointed in 2001 and is currently 
serving his fourth term and is the longest serving member of 
the commission.
    Mr. Kirsanow is also a partner in the Cleveland office of 
the law firm Benesch, Friedlander, Coplan & Aronoff and works 
within its labor and employment practice group. Previously, he 
served as a Member of the National Labor Relations Board from 
2006 to 2008, and he earned his B.A. from Cornell University 
and his J.D. from Cleveland State University.
    Welcome, Commissioner Kirsanow.
    Stacy Hawkins is a professor of law at Rutgers Law School. 
She teaches classes on constitutional law, employment law, and 
diversity and the law. Her research focuses on the intersection 
of law and diversity. Prior to teaching, Professor Hawkins 
spent over a decade in private practice, advising clients in 
both the public and private sector on the development and 
implementation of legal, defensible diversity policies and 
programs.
    Professor Hawkins earned her B.A. from the University of 
Virginia and her J.D. from Georgetown University Law Center. 
Welcome, Professor Hawkins.
    Before proceeding with your testimony, I remind everyone 
that all your written and oral statements made to the 
Subcommittee in connection with this hearing are subject to 18 
U.S.C. 1001. Please note that your written statements will be 
entered into the record in its entirety and, accordingly, I ask 
that you summarize your testimony in 5 minutes. There is a 
timer in the WebEx view that should be visible on your screen, 
and that should help you stay within your time limit.
    So, Judge Donald, you may begin.

          STATEMENT OF THE HONORABLE BERNICE B. DONALD

    Judge Donald. Thank you, Chair Johnson.
    Chair Johnson, Ranking Member Issa, House Judiciary Chair 
Nadler, and my Congressman, Steve Cohen, I am Judge Bernice B. 
Donald, a member of the U.S. Court of Appeals for the Sixth 
Circuit. Our circuit covers Michigan, Ohio, Kentucky, and 
Tennessee.
    Diversity in every sense of the word is critical to the 
proper functioning of a Federal court. A one-dimensional court 
cannot fully grasp the many dimension of American life. Federal 
courts should be as diverse as the communities that they serve. 
Justice Kagan put it this way. People look at an institution 
and they see people who are like them, who share their 
experiences, who they imagine, rather, share their values.
    To truly deliver justice, we are tasked with administering, 
we must not only understand the arguments being made by the 
parties but also the perspectives through which those arguments 
are made. It is difficult to describe in 5 minutes all the 
benefits that a diverse Federal bench confers, but there are at 
least two reasons why maintaining diversity in the Federal 
courts is essential.
    First, a diverse bench has a diversity of viewpoints and 
lived experiences that inform what justice look like in cases. 
Second, a diverse bench reinforces the legitimacy of our 
judicial institutions and promotes respect for the rule of law.
    First, diversity of viewpoint. For every case, the law 
should govern always without question but there is no escaping 
the truth that we are all shaped by our lived experiences and 
those lived experiences help round out the law, the Black 
letter law, that we all learn. This goes beyond the usual 
categories of identity, race, age, gender, sexual orientation, 
gender expression, religion, and national origin. It means the 
collection of every event fortune and misfortune that we may 
have embraced throughout our lives.
    As my friend, U.S. District Court Judge Ed Chen, whom you 
heard from, recently wrote, ``Although a judge's duty is to 
recognize those predilections and control them, it is simply 
unrealistic to pretend that life experiences do not affect 
one's perceptions in the process of judging.''
    A judge who grows up, for example, on a farm in America's 
heartland will have a different perspective on a rural 
agricultural program than a judge who spends his or her life in 
New York City. A judge who has a hearing disability would have 
a different perspective on the Americans with Disabilities Act 
than a judge who does not.
    To be clear, we as judges will always follow the law but 
justice is often about more than simply the Black letter law. 
Justice is informed by our perspectives, and diversity does not 
mean that individual decisions are driven by our life 
experiences. Rather they add different angles from which to 
look at an issue or a question.
    If our judiciary were homogenous in thought and 
perspectives, Justice Harlan, who penned the dissent in the 
Plessy case which 50 years later became the majority, would not 
have perhaps had that perspective.
    Judge Wallace Tashima of the Ninth Circuit, reflecting on 
his own experience in the Japanese internment camp, once 
remarked, ``Because we are all creatures of our past, I have no 
doubt that my life experiences including the evacuation and 
interment, have shaped the way I view my job as a Federal judge 
and the skepticism that I sometimes bring to the 
representations and motives of other branches of government.''
    As judges, our role is not to shed those experiences but to 
embrace and apply them.
    Second, diversity adds confidence in our institutions of 
law, and you heard that from Judge Frank Bailey. A nondiverse 
bench may be viewed as a biased bench. A vital aspect of 
eliminating that perception is ensuring that the Federal bench 
looks like the people that it serves. When cases are decided by 
judges who do not respect or understand the needs of particular 
communities, especially communities of color or 
socioeconomically depressed communities, Members of those 
communities are less likely to trust the decisions that are 
rendered by those judges. That is borne out by a 60-year old 
study done by an organization known as the National Conference 
of Christians and Jews.
    I know that my time is about up but let me say this. The 
value of diversity is not just in presence alone. Behind those 
closed doors, when we as circuit judges conference, 
perspectives and lived experiences matters. So, there is a rich 
benefit that comes from that. I have a story that is just the 
opposite of the one Judge Bailey told which I hope to have an 
opportunity to share with you during the question-and-answer 
period.
    As I close, a diverse bench is increasingly critical to our 
concept of justice. At a certain point a Federal judiciary that 
looks nothing like the makeup of the rest of the country will 
lose the people's confidence. On the other hand, a Federal 
bench that looks like our more perfect union will move us 
closer to delivering a more perfect justice. Thank you.
    [The statement of Judge Donald follows:]
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    Mr. Johnson of Georgia. Thank you, Judge Donald.
    Next, we will hear from Professor Sen. Professor Sen, you 
may begin.

                     STATEMENT OF MAYA SEN

    Ms. Sen. Chair Johnson, Ranking Member Issa, Members of the 
subcommittee, thank you so much for allowing me to speak with 
you today.
    Judicial diversity is an important topic. Our Nation's 
courts are out of step with our country's demographics, and in 
other ways, fail to reflect the rich variety of educational and 
professional experiences that our legal profession has to 
offer. There is evidence, as many have noted, that greater 
diversity would strengthen the public's trust in the judiciary.
    So, let me illustrate some of this. To give you one 
example, according to the U.S. Census, about 19 percent of all 
Americans identify as Hispanic, but only about 6 percent of our 
Court of Appeals judges and 10 percent of our District judges 
identify as Hispanic. 1.3 percent of Americans are Native 
American, but only two, not 2 percent, two of our judges out of 
about 800 Court of Appeals or District judges are Native 
American, and both actually were pretty recently appointed. Of 
course, half of Americans are women, and about 40 percent of 
lawyers are women, yet women comprise only about a third of 
Federal judges.
    Now, I really do believe that diversity extends to a 
variety of life experiences, but we could also be doing better 
in this regard. So, for example, close to one in six Court of 
Appeals judges attended just one law school, and that was 
Harvard Law School, and one in four attended one of two law 
schools, Harvard or Yale Law School. Even more staggering, a 
whopping two out of three Court of Appeals judges attended one 
of the highly elite top 14 law schools, the most elite of the 
Nation's law schools.
    Now, this is the effect of largely shutting out exceptional 
candidates from law schools considered less elite, and 
therefore, effectively penalizes those who, for whatever 
reason, choose to attend a less expensive school or actually 
who don't want to attend a law school clustered in a handful of 
cities.
    The lack of diversity extends also to professional 
experiences, as others have noted. So, another large share of 
our Nation's judges, about one in three Court of Appeals 
judges, at least, have some sort of prosecutorial experience 
but only one in 45, so about 2 percent, list equivalent public 
defender experience.
    Another example I like here is close to one in three Court 
of Appeals judges are professors of some sort. I like 
professors very much, some of my best friends are professors, 
but this is in no way reflective of the U.S. population or even 
reflective of graduates of elite law programs.
    So, why are these discrepancies important? So, I will turn 
again and again to the research here. So, we have a lot of 
peer-reviewed studies showing that judges of different 
backgrounds decide cases in different ways. So, for example, a 
number of studies have shown that Black and White judges often 
differ towards criminal sentencing with White judges being 
harsher than Black judges against Black defendants.
    Other studies have shown that White judges are less likely 
to vote in favor of claimants in voting rights cases or in 
affirmative action cases, although this is not always the case, 
and that some of these differences attenuate when White and 
Black judges sit together. It is an interesting finding.
    We have some more evidence on gender. Male judges are more 
likely to side against plaintiffs in sexual discrimination 
cases, though not always, but differences also tend to 
attenuate when women sit alongside men, and there are actually 
dozens of peer-reviewed studies on these points. There is also 
lots of evidence, quantitative, scientific, and peer-reviewed 
journals, some of it from outside the courts, that diversity 
broadly supports healthy group decision-making, leading to the 
vigorous discussion of a variety of perspectives and something 
that is absolutely essential for something like the Court of 
Appeals.
    So, one of the most relevant studies on this point showed 
that White decisionmakers engage more deeply in factual 
inquiries, they make fewer factual errors, and they are more 
amenable to the discussion of racism when they are in mixed 
race groups as opposed to all White groups. We would expect 
similar things to happen in our Federal Courts of Appeals and 
in our Federal District Courts.
    I want to conclude by pointing out what several studies 
have shown which is that more diverse institutions do tend to 
garner stronger and more robust public support, and for the 
courts, which we know have no enforcement power, having strong 
public trust is incredibly important. Here the evidence does 
suggest that many people would have stronger beliefs in the 
institutional legitimacy of the courts with greater diversity.
    So, again, thank you for your time, and I am honored to be 
here. Thank you.
    [The statement of Ms. Sen follows:]
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    Mr. Johnson of Georgia. I am sorry. I was on mute. Thank 
you, Professor Sen.
    Commissioner Kirsanow, you may now begin. Commissioner 
Kirsanow, if you will unmute yourself.

                 STATEMENT OF PETER N. KIRSANOW

    Mr. Kirsanow. Apologies. I thought I was unmuted.
    Thank you, Chair Johnson, Ranking Member Issa, and Members 
of the committee. I am a partner in the labor employment 
practice of Benesch, Friedlander, and a member of the U.S. 
Commission on Civil Rights. I am appearing in my personal 
capacity.
    The U.S. Commission on Civil Rights was established 
pursuant to the Civil Rights Act of 1957 to, among other 
things, investigate denials of equal protection on the basis of 
race and other protected characteristics. Today's hearing is 
about the importance of diversity in Federal judiciary.
    It is a conclusory statement, though it is not one that I 
necessarily disagree with. As a matter of preliminary inquiry, 
there may have been a colorable argument that it would be 
salutary to increase the number of, say, Black State court 
judges in 1957 when the commission was created and when racial 
discrimination was both legal and rampant.
    It is at least defensible that the presence of, say, Black 
judges might have assured litigants that their matters would be 
fairly and impartially adjudicated, but even then, any 
inclination towards expanding judicial diversity should always 
have been consistent with the overriding principle of non-
discrimination. Today, some urge that we should diversify the 
Federal judiciary to improve the, quote, ``legitimacy of the 
courts among the public.''
    Taken to its logical conclusion, however, this might 
actually undermine public confidence in the judiciary. It 
suggests, whether subtly or overtly, that unless someone 
appears before a judge who shares your pigmentation or ethnic 
background, you cannot trust that your case will be fairly 
adjudicated.
    Perpetuating that notion itself derogates public faith in 
the judicial system. Indeed, just yesterday, two U.S. Senators 
announced that they will not vote to confirm any diverse--non-
diverse nominees. As Chief Justice John Roberts stated in 
Parents Involved v. Seattle Schools, the way to stop 
discrimination on the basis of race is to stop discriminating 
on the basis of race.
    I am aware of the studies that note that there are 
differences in decision-making based on race and sex. I am 
unaware, however, of any credible studies that show that a more 
diverse judiciary would yield, quote, ``better decisions.'' It 
is unclear how one would even measure something like that. One 
could compare recent reversals, I suppose, but that won't 
particularly be helpful.
    For example, according to the Center for American Progress, 
the Ninth Circuit is the most reversed appellate circuit that 
has neither the greatest disparity between percentages of White 
judges compared to the general population in the circuit nor 
the smallest disparity. It also seems somewhat unlikely that 
diversifying the Federal judiciary would lead to appreciably 
different outcomes even if one believes the judges' decisions 
may be influenced by explicit or implicit bias.
    The decisions of Federal court judges in a particular tend 
to pertain to fairly technical issues. For example, do White 
judges and Black judges have different interpretations of 
standing requirements, section 1 of the Sherman Act, section 
8(B)3 of the National Labor Relations Act. There is a 
possibility that White judges and Black judges could, on 
average, come to different decisions in some cases. That may 
not be because of their race, but perhaps because Black judges 
may be more likely to have been appointed by Democrats or to 
have, say, progressive political views.
    Perhaps some Black judges are more disposed toward Black 
plaintiffs in discrimination cases, but they might be more 
likely to be inclined toward any plaintiffs in discrimination 
cases. In other words, the judges' race is simply an imperfect 
proxy for etiology. Race may also be an imperfect proxy for 
class.
    Well-intended but misguided policies have contributed to 
the dearth of diverse judges in another way. The academic 
achievement gap between Black and Hispanic students on one hand 
and White and Asian students on the other is profound. This gap 
begins early in students' academic careers, and it is because 
of this gap that universities and law schools give significant 
admissions preferences to Black and Hispanic students. Those 
preferences actually end up harming many of the supposed 
beneficiaries who are then mismatched with respect to their 
peers.
    Some struggle in law school which then makes it more 
difficult for them to obtain the clerkships, Law Review 
Memberships, other prestigious positions in law firms and 
government. They are often predicates to becoming a Federal 
judge.
    Increasing the diversity of the Federal bench should not 
override equal treatment under the law, nor should it trump 
proficiency and excellence. Casting a wide net in the 
application process to ensure as many diverse candidates as 
possible are vetted is consistent with the imperative 
nondiscrimination while increasing the probability of selecting 
more diverse candidates.
    Lady Justice is blindfolded. The Administration of justice 
should be colorblind. No race, ethnicity, or sex has a lock on 
judicial excellence. It is respectfully submitted that Members 
of the Federal judiciary should be selected on reliable indices 
of legal acumen, judicial temperament, and the content of their 
character rather than the color of their skin.
    Thank you, Mr. Chair.
    [The statement of Mr. Kirsanow follows:]
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    Mr. Johnson of Georgia. I thank you, Mr. Kirsanow.
    Last but not least, we will hear from Professor Hawkins.
    Professor Hawkins, you may now begin.

                   STATEMENT OF STACY HAWKINS

    Ms. Hawkins. Thank you so much to Chair Nadler, Chair 
Johnson, Ranking Member Issa, and the other distinguished 
Members of this subcommittee. Thank you for the opportunity to 
testify here today.
    As has been said, I am a Professor of Law at Rutgers Law 
School, and after more than a decade in private practice, I 
have spent the last decade at Rutgers writing and teaching 
about the intersection of law and diversity. I have authored 
numerous articles on the subject and several about judicial 
diversities, specifically. So, I would like to say that I am 
delighted that the House is taking up this issue, and I am 
honored to offer this testimony here today.
    I want to begin with some data about the diversity, or lack 
thereof, on the Federal bench. From 1789 until 1960, there were 
only two White women and another two men of color appointed to 
the Federal bench. Perhaps not surprising to anyone here, the 
civil rights era seemed to mark a key turning point when we 
began to acknowledge, albeit tacitly, that the judiciary must 
begin to reflect the diversity of our citizens to be viewed as 
legitimate.
    Then in 1977, this acknowledgment was made explicit by 
President Jimmy Carter who announced his commitment to 
diversifying the Federal bench. Carter went on to appoint more 
than twice the number of women and minority judges to the bench 
than had been appointed during the previous four 
Administrations combined. It was a watershed moment.
    In 1981, Ronald Reagan broke another historic barrier when 
he appointed Sandra Day O'Connor as the first female justice to 
the Supreme Court. Then following Reagan, each of the next four 
successive Presidents across both parties built on their 
political predecessors' progress in diversifying the Federal 
bench.
    However, after nearly 3 decades, that trend receded for the 
first-time during Donald Trump's presidency. Perhaps most 
notably, none of the 54 Circuit Court judges appointed by Trump 
were Black despite representing the largest share of sitting 
minority judges on the bench, and only one was Hispanic, the 
second largest minority group among sitting judges.
    This reversal of modern presidential practice is troubling 
for two reasons. First, as many have said, diverse judges 
secure the trust necessary to enhance judicial legitimacy. 
Second, diverse judges ensure judicial accountability to our 
increasingly diverse Nation.
    Opinion polls measuring public trust in our Federal 
Government reveal that while the judiciary remains the most 
well regarded of the three branches, this trust is not equally 
distributed. One study found that only a quarter of White 
respondents but more than three-quarters of Black respondents 
believe the justice system treats Blacks unfairly. This concern 
for fairness threatens the effective functioning of our 
judiciary which relies on people's trust in order to legitimize 
the rule of law.
    Now, many people point to increases in politically 
polarized decision-making as the source of citizens' eroding 
trust in the judicial branch. Research, however, instead 
demonstrates that it is the appearance of fairness in the 
judicial process itself more than substantive outcomes that 
fosters trust in our judicial system. One way to promote this 
sense of fairness is to ensure that judicial decisionmakers 
reflect the diverse communities they serve. As one judge 
observed about the judicial process, quote, ``you want for this 
thing to not only be fair, to look fair,'' unquote.
    Research shows that when judicial decisionmakers are 
diverse, not only do they engender trust in the judicial 
process, but they also enhance accountability to minority 
communities, particularly on issues of high racial salience has 
been mentioned in cases like voting rights or discrimination. 
One study found that plaintiffs in racial harassment cases had 
higher success rates when their cases were decided by a Black 
judge than when their case was decided by either a White or a 
Hispanic judge. Contrary to what has been stated, these 
findings held even after controlling for the judge's political 
affiliation.
    The last point that I want to make before concluding my 
remarks is that the judiciary lacking in diversity is 
inconsistent with our ideals of representative democracy. More 
importantly, perhaps, today it is increasingly out of step with 
broad public support for a government more representative of 
our diverse Nation. Diversity on the Federal bench is not just 
about curing a crisis of judicial legitimacy. It is also about 
preserving the promise of government of the people, by the 
people, and for the people.
    Thank you, and I look forward to your questions.
    [The statement of Ms. Hawkins follows:]
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    Mr. Johnson of Georgia. Professor Hawkins, thank you for 
your testimony.
    We will now proceed under the 5-minute rule, and I will 
begin by recognizing myself for 5 minutes for questions.
    Judge Donald, you have often held the title of the first; 
the first Black woman to serve on the Sixth Circuit, the first 
Black woman District judge for the Western District of 
Tennessee. What impact do you think your many firsts have--what 
impact have those firsts had on the public that your courts 
have served, both on the bench and off the bench?
    Judge Donald. Thank you, Chair Johnson. I have been 
privileged in my community to be able to serve in those 
important positions. For me, what has happened by the honor of 
being a first is I have had an opportunity to demonstrate that 
people who look like me in gender and race can do an effective 
job, can uphold the law, can apply themselves, can meet all the 
requisite qualifications to compete with others who sit in 
those positions. More than that, I think it has served to 
inspire others who may not have believed that they could do 
this to see that someone like them can achieve those positions 
and do that job.
    I think one of the things that has been said and bears some 
truth, Professor Hawkins talked about the Federal courts. For 
the first 139 years of the court's existence, the court was 
completely White and male. People of color did not all of a 
sudden begin to be qualified in 1967 when Justice Thurgood 
Marshall was appointed to the Supreme Court, the same as women 
did not just suddenly become qualified when Judge Florence 
Allen or Justice Sandra Day O'Connor were appointed, nor did 
Latinx people suddenly become magically qualified with the 
appointment of Justice O'Connor.
    I think those who are in authority have to see and 
understand that we are a country that is rich in diversity, 
rich in talent, and rich in skill. I want to take this 
opportunity to say no one on these panels, I believe, are 
arguing that people ought to be appointed to positions or have 
an opportunity to achieve just because of their gender or their 
appearance.
    What we are saying that all people who are talented, have 
something to contribute, and if they have an opportunity, and 
they have something to contribute that they should be able to 
compete without barrier of race or gender or socioeconomic 
status. In those positions of firsts, that is what I think I 
have been able to demonstrate.
    Mr. Johnson of Georgia. Thank you, Judge Donald.
    Professor Hawkins, one recurring theme we have heard is 
that when the judicial bench is diverse, judicial decision-
making is better. What does it mean for decision-making to be 
better in this context?
    Ms. Hawkins. Chair Johnson, I certainly did not represent 
that it is better, but it is different, and it is improved, and 
it has improved along a number of dimensions.
    First, as many people have said, diverse people have 
different experiences, and those experiences shape our 
perspectives on various issues. I think that all the anecdotes 
that have been shared today about how people from different 
walks of life have contributed their experiences and their 
different perspectives to their decision-making from the bench 
is proof of that benefit.
    The second is that there is a deliberative benefit so that 
particularly on appellate panels, but also simply in the 
interactions that District Court judges have with their 
colleagues, will improve their ability to deliberate around 
issues when they are exposed to different points of view. So, 
it does improve decision-making both because people with 
different experiences bring different things to bear, and it 
enhances deliberation.
    Mr. Johnson of Georgia. Thank you.
    Professor Sen, your testimony describes diversity as 
leading to, quote, ``healthy decision-making.'' Can you explain 
why research suggests that this is the case?
    Ms. Sen. Yes. Well, we have a couple strands of research 
that really form that view. So, first, we have research from 
outside the court, so looking at business organizations, 
corporate leaderships, corporate boards, other kinds of 
governmental decision-making units, and all of those point to 
the direction that more diverse groups of people will, as was 
just said, discuss, uncover, leave no stone unturned in terms 
of, you know, the different viewpoints in forming the decision-
making. So, there is the evidence that more diverse group 
decision-making is more robust and takes into account different 
positions.
    Then we also have evidence from within the courts that 
panels like judicial panels on the Court of Appeals that have 
different composition in terms of race and gender actually do 
reach different kinds of decisions as opposed to panels that 
are more homogenous, for example, all White or all male panels.
    So, we have evidence from within the courts that actually 
really engages the view that more diversity actually, 
strengthens the group decision-making and kind of contributes 
to healthy decision-making.
    Mr. Johnson of Georgia. Thank you. My time has expired.
    We will next have 5 minutes of questions from the gentleman 
from California, Mr. Issa.
    Mr. Issa. Thank you, Mr. Chair. I am going to start off by 
asking a couple of questions of Mr. Kirsanow.
    You have been part of a group, a commission that helped 
select Federal judges in Ohio. Is that correct?
    Mr. Kirsanow. That is correct.
    Mr. Issa. When you are looking at the applications, do some 
of those prejudices--regardless of which President and what 
Senate, do some of those prejudice of Ivy League schools, of 
party based on who is suggesting that individual and experience 
based on, sort of that stereotype of a prosecutor and a certain 
resume is more likely to get you confirmed, are all of those 
preloaded into the applicants?
    Mr. Kirsanow. Well, I should say that I am restricted from 
discussing these things because of our bylaws. All our 
deliberations are confidential.
    Mr. Issa. I am only talking about the broad nature of the 
applicants.
    Mr. Kirsanow. Generally speaking, there are a host of 
factors that are employed, and there are a host of factors that 
are pertinent to whether or not somebody is qualified or deemed 
to be qualified to at least be presented for nomination to the 
Federal judiciary. Among those are academic qualifications, 
social work, time served on the bench, experience as possibly a 
clerk, maybe some type of other experience with respect to 
governmental positions.
    One thing that we must all keep in mind is I don't think 
anybody who has testified thus far today, at least what I have 
heard it, is opposed to a diverse Federal Judiciary. I don't 
think that is the case. The question is how do you get there 
consistent with 1964 Civil Rights Act, 14th Amendment, 
everything, right, because we are talking about a compelling 
State interest.
    In other words, if you are making a decision even a 
balancing decision based on race, you must be serving a 
compelling State interest. That is a high bar. It can't be 
something minor. It has usually been reserved to matters of 
national security, something of extreme importance. So, all the 
factors--
    Mr. Issa. Sure. I don't want to interrupt you unfairly, but 
the question that I wanted to get to isn't there, from your 
experience, a bit of a bias towards Ivy League schools, towards 
people who had the opportunity to do more extracurricular 
activity?
    In other words, socioeconomic advantage does play a part in 
whether or not you are likely to be able to come to the Federal 
bench simply because the nature of being qualified is a 
combination of intelligence and drive and opportunity, and that 
third one often makes a difference on whether you can go to 
Harvard, or you have to go to the school that you can afford.
    Mr. Kirsanow. Yeah. I will say that there is clearly a real 
disparity in terms of where the educational kind of template 
skews, and that is it is, as other people have testified, 
skewed toward the Ivy League, just dramatically so. That 
doesn't necessarily mean that the Ivy League is better or that 
Harvard or Yale are better, but that happens to be the case, 
and I think that is true throughout the districts and 
throughout the circuits.
    Mr. Issa. Along that same line, and I will get off of your 
selection process, but the inherent question is if you have a 
single judge who will leave the Supreme Court and appellate 
judges, if you have a single judge sitting on the bench, do you 
believe, as some of the other witnesses said, that you can 
predict how they are going to be behave based on their gender 
or race.
    Mr. Kirsanow. I wish. I mean, I have only been doing this 
for 42 years. Maybe somebody has a different perspective. I 
have been before several judges a number of times. Even though 
I have been in front of a number of times, sometimes spanning 
decades, very often I am surprised, but the least able--and I 
am not disputing any of the studies, but the least reliable 
indices for me to predict which way a judge is going to go.
    If I am telling a client when I am in a trial, I think we 
are going to go this way if it is a bench trial, it really has 
to do with perceived etiology. That is the one. It has nothing 
to do with race, sex, age, any of those things. If you can get 
a pretty good handle on what is the etiology of this particular 
judge, and not that etiology is controlling. I am saying that 
it is clearly a greater demarcation factor than the others, in 
my experience. Again, that is my experience.
    Mr. Issa. Let me ask you one question, and one closing 
question. Are we potentially conflating or confusing in some 
parts of our discussion today the diversity that is essential 
in a judge, perhaps what we are really looking at is what you 
do as a trial lawyer when you are selecting a jury, and you 
have some skill, capability of predicting a better potential 
outcome based on one or all 12 of the jurors?
    Is there really a difference between selecting juries which 
obviously there is a whole profession within your profession to 
help you select juries that are more likely to give you a 
certain outcome versus judges? Would you contrast that delta, 
if there is one?
    Mr. Kirsanow. Yeah. There is a slight delta. Let me just 
say there are numerous factors that go into selecting jurors. 
For me, because I normally do discrimination law and labor and 
employment law, the one discrete factor that is most important, 
probably, that separates the kind of juror I want from another 
juror is occupation and the experiences that go along with that 
occupation.
    The least important, and one that is prohibited, of course, 
is race because what we find, I have jurors of every race on 
that pool or in the array, and we find that they have a broad 
range of viewpoints, beliefs.
    I have had jury foremen who are Black who, my goodness, 
these guys are--the stereotype would be that they are more 
inclined to decide in favor of a plaintiff in a race 
discrimination case, and just the opposite is true. I find that 
race is among the least important qualities when it comes to 
selecting a juror.
    Mr. Issa. Thank you.
    Yeah, Mr. Chair, I would only ask unanimous consent that 
the article written by John McGinnis be placed in the record.
    Mr. Johnson of Georgia. Without objection.
    [The information follows:]

                        MR. ISSA FOR THE RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Issa. Thank you. I yield back.
    Mr. Johnson of Georgia. Thank you.
    We will now hear from the gentleman from New York, the 
Chair of the Full Committee, Chair Nadler, for 5 minutes.
    Chair Nadler. Well, thank you, Mr. Chair.
    Judge Donald, we heard Judge Reeves call on Congress to be 
courageous in our commitment to diversity in the Federal 
courts. What would courage for Congress look like to you when 
it comes to diversity in the courts? I think you are muted.
    Judge Donald. Okay. Thank you, Chair Nadler, for that 
question. Congress being courageous to me would mean looking at 
people, diverse people, recognizing the pluralism of our 
Nation, and making certain that all voices are heard and that 
they are at the table.
    I believe that no one is advocating that we choose people 
based on race or gender, but what we are saying is people 
should not be excluded. They should not be denied the 
opportunity based on race and gender. Just as Congress was 
courageous in appointing or confirming the first woman, the 
first African American, the first Latinx, be courageous right 
now and look at the diversity that is this country and give all 
of those quadrants an opportunity to participate if they meet 
the other criteria.
    Chair Nadler. Thank you.
    Professor Sen, we heard Judge Chen recount story after 
story of how our judges' life experiences help their colleagues 
understand crucial elements of a case in ways they might 
otherwise have missed. Justice Ginsburg helped her colleagues 
to see how a strip search might feel to a teenage girl. Judge 
Henderson explained that the shockingly racist graffiti a 
plaintiff described was far more common than his colleague 
apparently thought. Justice Thomas, during the history of the 
Ku Klux Klan, explained the meaning of a burning cross. Does 
your research support Judge Chen's message that, as he put it, 
there is a cost when voices are missing from the room?
    Ms. Sen. Not just my research, I would say, but a wide 
swath of research across political science and sociology and 
economics, I think, supports that view. So, I could just kind 
of go through, like, a litany of studies on this point, but we 
do have a number of studies. For example, let's talk about 
gender. We have a number of examples, kind of chilling that 
across employment discrimination cases or sexual harassment 
cases that women judges tend to vote differently from their 
male counterparts.
    So, for example, male judges are more likely to vote 
against a plaintiff in a sexual discrimination case or that all 
male panels are most likely to vote against a plaintiff in a 
sexual discrimination case. The inclusion of a woman on the 
panel would actually bring the two groups closer together and 
actually eliminate some of those differences.
    Now, when I talk about the studies, I am talking about 
quantitative analyses of thousands of votes across the Court of 
Appeals, to take one example. We do see reflected in the data 
the nuances and the nuggets of those stories that were 
highlighted by people like Judge Chen. We do see that in the 
large quantitative studies.
    Now, does that apply to everyone? No. These are the kind of 
statistics that we are working with, so it is not going to 
explain the individual--it is not going to explain or predict 
any one individual judge, but we do see kind of these broad 
patterns, these voices reflected in the numbers, actually, so 
yes.
    Chair Nadler. Thank you. Thank you.
    Professor Hawkins, Judge Chen also compared the need for a 
diverse Federal bench to the Constitutional requirement that 
juries represent a fair cross-section of the community. How do 
the considerations that animate the fair cross-section 
requirement for juries support the importance of a diverse 
Federal judiciary?
    Ms. Hawkins. Thank you for that question, Chair Nadler, 
especially because I have written about this, and I have 
compared the considerations that we use and apply pretty 
uncontested in the jury context to the bench.
    Juries serve as judicial decisionmakers, not unlike judges. 
One adjudicates facts; the other adjudicates the law. Yet, we 
have this very explicit commitment to having jurors represent a 
fair cross-section of the community. We have lots of courts 
that make very deliberate efforts to ensure that not only that 
jury pools are diverse, but that jury panels are sufficiently 
diverse to reflect the communities that they serve.
    I think that because we understand that the appearance of 
fairness in the process is what engenders the trust, we need to 
legitimize the rule of law that those appearances matter as we 
have an increasingly diverse Nation. So, just as we acknowledge 
expressly and engage in active efforts to ensure diversity 
among jurors, we should do the same for judges.
    Chair Nadler. Thank you.
    Judge Donald, Judge Chen, Judge Bailey, and Judge Reeves 
all discuss how diversity on the bench affects the wider 
judicial system from the selection of bankruptcy and magistrate 
judges as well as key court personnel like clerks of the court 
or chief probation officers to local rules and programs. Do you 
agree with their assessment?
    Judge Donald. I agree with that. I also think it affects 
clerks. Chair Nadler, when I became a bankruptcy judge in June 
of 1988, I became the first African American woman to be a 
bankruptcy judge in the history of the United States. There 
were only nine nationwide. I was the only one in the south. I 
firmly believe that had it not been for the presence of Judges 
Nate Jones and Damon J. Keith on the Sixth circuit that I would 
have never had that opportunity.
    Yes, it matters. Also, those of us who are in those 
positions are more likely to higher diverse clerks. I, for one, 
I don't want to be surrounded by everyone who looks like me or 
thinks like me because I think if that happens, there is no one 
to help me guard against my own blind spots, and all of us have 
those blind spots.
    Chair Nadler. Thank you. My time has expired. Mr. Chair, I 
yield back.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    If the Ranking Member of the Full Committee, Mr. Jordan, is 
not here, then next up will be Mr. Bishop, the gentleman from 
North Carolina. You may begin, Representative Bishop.
    Mr. Bishop. Thank you, Mr. Chair.
    Judge Donald, I was interested in your written comments. 
There is this one paragraph that sort of got me thinking about 
what we are talking about, and it says, you say, I am sad to 
report today that despite significant recent progress in 
diversifying the legal profession, the Federal judiciary is not 
yet visibly open to talented and qualified individuals from 
every corner of this great Nation. As of exactly 1 year ago in 
March 2020, women accounted for only one-third, 34 percent of 
Article III judgeships despite amounting to more than half of 
the U.S. population. Similarly, African Americans, Latinx 
Americans, and Asian Americans combined accounting for only 26 
percent of Federal jurists, while 40 percent of the country 
identifies as non-White.
    I guess, Judge Donald, it prompts me to ask. What is the 
objective? Is it to have a quota so that you are not really or 
not there until the numbers match the background population?
    Judge Donald. I don't think that we necessarily have to 
have the numbers correlating, but I do think that we ought to 
have the presence of all those groups.
    One of the professors here today talked about, for example, 
the Seventh Circuit which today, we know that that circuit 
includes cities like Chicago, Illinois, Gary, Indiana, 
Indianapolis, Indiana, Milwaukee, Wisconsin, and those are 
cities with high populations of people of color, and there is 
not an African American on that court.
    We are not going--it is not necessary that we have those 
mirror images, but I do believe we ought to have influences on 
those courts. We have to have that presence and those ideas and 
those lived experiences, Representative Bishop.
    Mr. Bishop. Comparing those--if comparisons were made to 
the background population, of course, we have to draw the 
judges from among the lawyers who are admitted to bars, so 
isn't that really the more relevant comparison?
    Judge Donald. I am so pleased that you acknowledge and 
mention that, sir, because we are working mightily right now to 
work on pipelines. We need to make certain that we have 
opportunities to enter the practice of law afforded to many 
more students, and there are organizations and individuals who 
are doing that.
    In my own community, as Congressman Cohen will note, when I 
came on the bench, there were many students who were in 
impoverished communities and others who had never met a lawyer. 
They had never seen a lawyer. I do my job as judge, but I also 
feel I have a responsibility to my communities to make certain 
that people's dreams are enlarged. People cannot often exceed 
their dreams. They ought to have the ability to aspire to every 
position in this country. When we go out and help to infuse 
diversity, we have to enlarge and inspire dreams, and those 
dreams can one day become a reality.
    Mr. Bishop. Yes, ma'am. To that point, I am concerned about 
how we make the pipeline better. Asian Americans, despite 
having increased their numbers and outscoring other applicants, 
have been disproportionately denied admission to Ivy League 
schools, particularly Harvard, and I think that was sustained 
nonetheless by the First Circuit as an appropriate first--
appropriate affirmative action thing to do. The Administration 
recently dropped its support for Asian Americans discrimination 
contentions against Yale. Is it possible to discriminate 
against Asian Americans in Ivy League schools, and yet, improve 
the pipeline for Asian Americans getting access to judicial 
positions?
    Judge Donald. Okay. So, Congressman Bishop, I am going to 
let one of the professors respond more narrowly to that. When I 
talk about the pipeline, I am talking about going as deep as 
conditions in elementary schools and high schools, and exposing 
people to the law. It would be improper for me to comment on an 
issue that might come before my court, but I do understand the 
issue you are talking about. I am going to let those who are 
professors and those who sometimes live in the real as well as 
the theoretical world respond to that.
    Mr. Bishop. All right. Very well.
    Professor Hawkins, I might take a quick--I have only got 30 
seconds. Maybe you want to comment on that, and also, I have 
noticed that there--well, I will leave it and try to not make 
it a compound question. Do you have a quick comment on that 
before my time expires?
    Ms. Hawkins. Yes. Thank you. First, I want to say that the 
underrepresentation of Asian Pacific Americans in the Federal 
courts is definitely a concern. However, that concern does not 
stem from the underrepresentation of Asian Pacific Americans in 
college or in law school. They are actually overrepresented 
among college students, and they are one of the fastest-growing 
demographics among law school students as well. So, it is not a 
pipeline program, but I do agree that the underrepresentation 
on the bench is problematic.
    Mr. Bishop. Thank you. My time has expired.
    Mr. Johnson of Georgia. I thank the gentleman.
    The next up is the gentlelady from California, 
Congresswoman Lofgren, for 5 minutes.
    Ms. Lofgren. Well, thank you very much. I wonder if I could 
ask Judge Donald--She said she had a story to tell if she got a 
chance to tell it.
    So, could you take just part of my 5 minutes and tell that 
story?
    Judge Donald. I will abbreviate it. Thank you, 
Congresswoman Lofgren. I grew up in the segregated south, so I 
have been in lots of situations where I was the only person who 
looked like me in the room. So, when I became a judge in Shelby 
County, the Clerk of Court, a middle-aged White male, a friend 
of mine--a former friend of mine, he is deceased now, and of 
Congressman Cohen's was Gene Goalsby. He staffed my courtroom. 
I was the first African-American woman to become a judge in 
Tennessee's history. Mr. Goalsby was my friend. He was invested 
in my success. He wanted me to be comfortable. So, he staffed 
my courtroom with all African American personnel.
    So, when I opened court the first day in that September of 
1982, the first person on my docket to walk through the room 
was a young White male. He looked around the room, 
Congresswoman. His eyes grew as wide as half dollar bills, as 
he saw no one who looked like him. Because of my own 
experiences of being the only person of a particular race in a 
space, I knew he must have been feeling anxious. He asked me 
for a continuance. I granted it. He came back 30 days later 
with an African American defense attorney. Based upon my belief 
that he was concerned that he could not get justice in a place 
where no one looked like him, I went to Mr. Goalsby and thanked 
him, but I told him we need to change out some personnel and 
create a diverse environment, and that is what we did.
    So, that story is directly opposite to Mr. Bailey's, but it 
means that diversity is not just to people of color, but it is 
also important to people in the majority race. It is just that 
most people in the majority have never been in a situation 
where they were the minority unless they were in some foreign 
country.
    Ms. Lofgren. That is a fascinating and a really beautiful 
story. I know we have a long hearing, and there are others 
behind me, so I will just say this has been a very enlightening 
panel for me. One of the things that in addition to having 
diversity in terms of ethnicity and gender, we just touched 
upon the need for diversity geographically and educationally. 
You just can't tell me that the only qualified people in 
America to be judges are White people who went to Harvard or 
Yale. I mean, that just can't be true, and historically it has 
not been true. When you take a look at Justice Earl Warren, he 
wasn't even a judge when he was appointed. He went to 
Bakersfield High School, and he went to the University of 
California Berkeley Law School, and yet he made a profound 
change in America on the court.
    I worry that the court has become more like a priesthood 
than it used to be. We used to reach out to talented lawyers 
who had life experiences not only on the bench as working their 
way up, but also in business and in life and in politics 
broadly. I mean, Justice Douglas and others. We have lost that. 
So, I think we need a diverse bench, a talented bench, and I 
think we all understand that that doesn't just mean men, and it 
doesn't just mean White men, although I love White men. My 
husband and my son are White men. We need to have a bench that 
really reflects the full talent of America.
    I really appreciate the witnesses here today, and Judge, it 
was a treat to hear your story, and I am glad I got a chance to 
ask you about it.
    Mr. Chair, I yield back.
    Mr. Johnson of Georgia. The gentlelady yields back.
    I will now recognize the gentleman from Wisconsin, Mr. 
Tiffany, for 5 minutes.
    Mr. Tiffany. Thank you, Mr. Chair, for the time today. 
Before we start, I just want to mention in regards to the 
technical difficulties that we had at the start of this, it is 
really time for us to get back to hearings in the United States 
Capitol. I had the same thing happen with another Committee 
that I sit on repeatedly. This is not any of your fault, Mr. 
Chair, as the Subcommittee Chair here, but it is time for us to 
get back to having these hearings in the United States Capitol 
where we will have a Congress, a Congress where people get 
together.
    I would just like to share my comments. Dr. Martin Luther 
King once said, ``I have a dream that my four little children 
will one day live in a Nation where they will not be judged by 
the color of their skin, but by the content of their 
character.'' Today this committee's message is we will judge 
you by the color of your skin, race, gender, and politics, not 
by your character or qualifications.
    Let's begin with the basic premise that exceptional 
qualifications, not race, skin, color, gender, or religion 
should be the most important factor when evaluating a judicial 
nominee. Over the last few years, we have seen well qualified 
and diverse nominations to the courts. However, because they 
were Republican nominations, the Democrats didn't think they 
were diverse enough. I would urge people to take a look at the 
list of the Trump nominees which came from all different types 
of ethnicities and stations in society that were put on the 
courts. It is a good record.
    Senator Whitehouse in 2019 referred to Judge Neomi Rao, the 
first Asian Pacific American woman to sit on the D.C. circuit, 
as a cartoon of a fake judge despite her well qualified rating 
by the American Bar Association. She did not receive one single 
Democrat vote.
    When Judge Janice Brown, an exceptionally qualified African 
American woman was nominated to the Federal bench. Senator 
Schumer called her the least worthy pick despite her 
qualification as a judge coming from the California Supreme 
Court. Even then, Senator Biden voted against her nomination.
    The truth is simple. The only times my Democratic 
colleagues believe someone meets their diversity test is when 
they are ideologically aligned. The same is true when gender 
issues are involved. One may not look further than the 
nomination of an exceptionally qualified woman, Justice 
Barrett. She was openly attacked for her religion, and no one 
on the left said a word. The message that day, she was not 
diverse enough because she was nominated by former President 
Trump. This is less about diversity and more about furthering 
radical progressive agendas.
    As I understand it, the composition of are Article III 
judges roughly represents the racial diversity of our Nation. 
Nomination to the bench should not be decided by identity 
politics but instead by qualifications. These men and women 
administer our laws. Lady Justice is blindfolded for a reason 
because justice is blind.
    I would just go on to say, Mr. Chair, I thought you did a 
good job of acknowledging the improvements that have been done. 
A couple of our judges that spoke earlier spoke very eloquently 
consequently about their numerous success stories. We are 
moving in the right direction, and that is really a good thing. 
If you look at the list of President Trump's judges, that 
continuation happened over the last 4 years. If you take--we 
can cherry pick data, all of us, but you can take a look at the 
Wisconsin State Supreme Court. Six of the seven judges are 
women which I would say people see as progress in our State and 
a good thing to point out.
    I do agree with you and our Ranking Member, Mr. Issa, in 
regards to there are some places that are overrepresented. 
Let's talk about the elephant in the room that we are talking 
about the Ivy League, and that is not just the courts, but all 
our Federal government. We could use more people that are from 
throughout our country.
    So, if I can take--I don't have the timer in front of me, 
Mr. Chair, but I want to put one quick question out to Mr. 
Kirsanow.
    Mr. Kirsanow, you referred to two Senators, United States 
Senators yesterday, Duckworth and Hirono, that came out and 
said that they will not vote for non-diverse candidates. Do you 
think that it is wise to extend that to judicial nominations?
    Mr. Johnson of Georgia. Mr. Kirsanow, you need to unmute.
    Mr. Kirsanow. Apologies once again.
    In 2 decades on the Civil Rights Commission, one of the 
things I have observed is the decline in public trust of 
institutions, and it is correlated to some extent with the 
perception that we are counting by impermissible qualities. The 
most impermissible of all is race, but that is not the defining 
thing that has eroded trust, but it is one of those things. 
Someone is going to say, very overtly, I am not voting for 
somebody because of their race. That is something that is so 
anathema to our civic ethos as to be astonishing.
    I think we have been talking a lot about having a diverse 
judiciary which I think a lot--everybody here agrees with as 
somehow engendering trust in the public. One of the 
uncontroverted ways of eroding that trust is giving the public 
perception that you are counting on the basis of race, or 
people are getting onto the judiciary because of race.
    For those who are saying that, and I am not saying anyone 
here is doing that, but for those broadly who say, no, we are 
not doing that, we saw the same dynamic pertain in Grutter and 
Gratz versus Bollinger where the courts said race is just one 
of many factors, a feather on the scale in the admissions 
process. When you look at the data, it is not a feather on the 
scale, it is an anvil. At some schools, Black and Hispanic 
students are up to 500 times more likely to be admitted over 
the White and Asian comparatives. What we must not do under any 
circumstances, in my estimation, is erode the trust that some 
people have talked about very eloquently as being engendered by 
a diverse judiciary by making it appear as if race is a factor 
in the process of selecting candidates.
    Mr. Tiffany. Mr. Chair, I really--
    Mr. Johnson of Georgia. The gentleman's time has expired.
    Mr. Tiffany. Okay. Mr. Chair, I thought you did a really 
good job of laying this out today. We all seek a perfect union 
as it is said in the founding. We have so much work to do. We 
continue to move towards that more perfect union, and I really 
appreciate having this hearing today to talk about this 
important issue. Thank you.
    Mr. Johnson of Georgia. I thank the gentleman.
    Our next questioner will be the gentleman from California, 
Mr. Lieu, for 5 minutes.
    Mr. Lieu. Thank you, Chair Johnson, for holding this 
important hearing. I previously served on active duty in the 
United States military because I believe America is an 
exceptional country. We are not perfect, but we are moving 
towards that more perfect union, and one of the areas we have 
to look at is the Federal judiciary.
    Let me simply start by noting that the highest Federal 
court in the land, the United States Supreme Court, does not 
have a single Asian American on their court. Not only that, but 
not a single Asian American was even seriously considered to be 
on that court in both Democratic and Republican 
Administrations. The message sent is that lawyers and judges 
and law professors that look like me are somehow not qualified 
to be on the U.S. Supreme Court, and that is just wrong.
    When we looked at district courts, for example, Asian 
Americans are 3.5 percent in terms of Federal District Court 
judges, well below our population in the United States. Again, 
the message that sends is that lawyers and State court judges 
and law professors that look like me are somehow not qualified 
to be Federal District Court judges.
    I want people to understand that when you have a Federal 
judiciary that is 73 percent White and male, far above that 
actual population of White males, and then you say the reason 
is because of merit, you are sending the message that 
minorities are less qualified, more stupid, less good to be 
judges to be on the Federal judiciary. That is what is so 
corrosive about not diversifying the Federal judiciary.
    It is not about a specific Federal judge. I listened to 
Judge Ho very closely. I admire he is the only Asian American 
on that Circuit Court, but it is not about him. He is not there 
just because of merit because there are dozens, likely hundreds 
of other people who could be in his exact same position and be 
just as qualified. Because there are so few Federal judiciary 
positions, there are literally thousands of people that could 
fill these positions that are not White and male. To somehow 
suggest that the only reason it is White and male is because 
those people are the most exceptionally qualified is a lie. 
There is discrimination happening because if you took the most 
qualified people and sorted them out, it wouldn't like look 
this, and that is what we need to address.
    Now, Commissioner Kirsanow, you also had a similar line of 
testimony that somehow the way it looks like this is because of 
merit. You also made a false fact about the Ninth Circuit Court 
of Appeals. It is not the most reversed circuit. PolitiFact 
checked this; other people have. In fact, the Sixth Circuit is 
the most reversed circuit.
    So, setting that aside because I did mention you and your 
testimony, I am going to give you a chance to respond. Where I 
am coming from is not the individual judges or the Federal 
judiciary. It is the message that is being sent to America that 
somehow minorities are not qualified to be on the Federal 
judiciary because somehow, we are not exceptionally qualified.
    Mr. Kirsanow. Thank you, Congressman, for the opportunity 
to respond. I agree with you entirely that if there is 
discrimination, it is against Asian Americans. In fact, just 
yesterday or the day before yesterday, I filed a brief in the 
Students for Fair Admissions against Harvard case in the 
Supreme Court.
    Mr. Lieu. Stop bringing in irrelevant issues. There are 
more Asian Americans at these Ivy Leagues. That are 
underrepresented. These are different issues happening. Just 
answer my question about Asian Americans in the Federal 
judiciary or minorities in the Federal judiciary because it is 
underrepresented.
    Mr. Kirsanow. It is underrepresented.
    Mr. Lieu. These college issues are not what the hearing is 
about.
    Mr. Kirsanow. Underrepresented, definitely. 
Underrepresented based on the fact that there has been 
discrimination in the pipeline that we have talking about, 
profound discrimination against Asian Americans. Without 
question, profound discrimination. It is one of the reasons why 
I indicated before we have an erosion in confidence in the 
institutions because the perception by the public is we are 
making determinations on the basis of race, one of the most 
baleful and anathema considerations we have in the United 
States of America because of history.
    It is precisely why I said we must avoid at all costs the 
perception that decisions are being made on the basis of race. 
When you look at the correlative with how decision-making is 
being through the admissions process, it appears as if 
decisions, in large part, are being--
    Mr. Lieu. We are not talking about the admissions process. 
We are talking about the Federal judiciary. The fact that it is 
73 percent White and male means decisions were being made on 
the race of applicant, and that is simply a fact because it is 
not--statistically, it would not have come out as 73 percent 
White and male.
    The reason that you can't talk about the Federal judiciary 
and you keep going to the college issue is because you have no 
basis on the issue of the Federal judiciary. It just needs to 
be more diverse. It is corrosive to America to have an entire 
third branch of government in which people were selected on the 
basis of them being White. That is the only way to explain 
these statistics.
    I yield back.
    Mr. Johnson of Georgia. I thank the gentleman for his 
impassioned argument.
    We will next turn to the gentleman from Wisconsin, Mr. 
Fitzgerald, for 5 minutes.
    Mr. Fitzpatrick. Thank you, Mr. Chair.
    I appreciate Judge Donald being with us today. It is an 
honor. I think my frustration kind of with not just the 
discussion today but overall, this back and forth that has been 
going on. Diversity, I am not sure who would not be for that.
    I was in the State Legislature for many years before I was 
elected to Congress. What we experienced in Wisconsin, and 
Judge Donald, you talked a little bit about Milwaukee earlier, 
but the frustration we had was that oftentimes, the legislature 
in Wisconsin would pass a bill, and the governor would sign it 
into law, and immediately it would end up in the Western 
District or the Eastern District. We would get into a situation 
where we would know where we were headed and how the judge was 
going to handle something. It clearly was based on - that they 
had developed an ideology.
    If there was kind of this gambit of which judge you might 
be before, I think most of us could accept that. There seemed 
to be--I am going to call it dysfunction, and maybe that is 
close to being accurate, maybe it isn't, but it was about the 
back and forth between what was going on in the Eastern or 
Western District and the Seventh Circuit in Chicago where there 
was just a delay in action or a delay in ruling.
    For me, it seems more about longevity of judges, Federal 
judges, and how long they are there which can be a long time. 
Oftentimes, people get entrenched, and they start understanding 
this is the profile of this judge, and they are not going to 
vary from that.
    So, from my perspective as a Republican Congressman, we 
need more conservative judges. We need more judges that are 
going to Rule based on the merits of the case instead of taking 
one ideology or other. Obviously, the criticism that comes from 
a lot of Members of my party is just the idea that, there are 
too many Federal judges that are legislating from the bench 
versus really taking kind of a fair look at it.
    So, I just want to take that a different look at it, but 
there still seems to be a back and forth between what is going 
on in the States and in the circuit, the Federal circuit courts 
that seems to be resolved, and I don't know how we are going to 
do that or how we could tackle that, and I would just be 
interested to hear your take on that.
    Mr. Fitzgerald. I think you are muted, Judge.
    Mr. Johnson of Georgia. That question is directed to whom, 
sir?
    Mr. Fitzgerald. To Judge Donald.
    Judge Donald. Okay. So, Congressman Fitzgerald, I can 
appreciate your expressed frustration with the sometimes I 
guess the friction or whatever between the various branches. I 
think that is the genius of the Founders to have these separate 
branches. I know that sometimes the courts are frustrated with 
legislative matters and legislators are frustrated with things 
that happen in the court.
    I believe, though, and I believe this firmly to the core, 
because of the oath that I took, that judges come to these 
issues with a view to determining the law based on the facts. I 
think we try to look at the laws and sometimes if there is an 
ambiguity and we have to try to decide what Congress meant by a 
particular law, I think that we use the appropriate tools of a 
statutory and other interpretation to do the best we can to 
find that and then apply that law.
    I can appreciate that there are perhaps some ideological 
differences in the way judges come to these things and I can't 
speak to those individual differences in any court, but I do 
believe that the courts and judges generally come to this job 
seeking to honor and uphold the oath that they take with 
respect to applying the law. I also believe that we try to make 
certain that we give fidelity to the framework that the 
Founders set up with these separate and coequal branches and 
the respective obligations of each.
    Mr. Fitzgerald. Thank you very much.
    A fascinating day and a fascinating hearing. I yield back, 
Mr. Chair.
    Mr. Johnson of Georgia. Thank you, Congressman Fitzgerald.
    Next up is the Congressman from Tennessee, Mr. Cohen, for 5 
minutes.
    Mr. Cohen. Thank you, Mr. Chair. First, I would like to--
    Mr. Johnson of Georgia. Before you start, Mr. Cohen, let me 
ask that all Members mute their phones. We are hearing 
commentary from sounds like Fox News. Whoever there needs to--
okay. All right. Thank you.
    Mr. Cohen, you may begin.
    Mr. Cohen. Thank you, Mr. Chair.
    First, I would like to agree with my colleague from 
Wisconsin that we should be having in-person hearings. We can't 
do that, as Speaker Pelosi has made clear, until enough of the 
Congress Members have taken shots, vaccinations to make us be 
safe in our committees. I believe it is about half of the 
Members on the other side who have not taken their tests, and 
that is why we can't go back to our hearings like we would 
like. So, if they would just roll up their sleeves and allow a 
little needle to be put in their oral to protect them from this 
pandemic, we could all be back together again. I look forward 
to that.
    Secondly, as far as the people that criticized Harvard and 
Yale, yeah, Judge Barrett went to Rhodes College, a Rhodes 
scholar from Memphis. We are proud of that.
    Judge Donald, you have seen the fact that the Federal 
judiciary is never as diverse as it should be. Over the past 4 
years which direction have we gone in? We have gone the wrong 
direction. Out of 226 judges appointed by Donald Trump, only 24 
percent were women and only 16 percent were non-White and when 
you look at the appeals court where you sit, Judge Donald, the 
statistics are just astonishingly worse. Zero Black appeals 
court judges were appointed by Trump, zero out of about 65. He 
couldn't find one Black judge out of 65 who would qualify 
based--because he does everything, according to some of these 
people, based on qualifications. Not a single qualified Black 
person. Unbelievable. No Hispanic appeals court either. None.
    This is important because, as we look at our life 
experiences, judges are no different and Trump basically put 
White people in control because it was all about changing the 
balance of power.
    Judge Donald, you have had a seat at the district and the 
Circuit Court levels. You have had that. You have heard appeals 
court cases with panels and judges that interact with each 
other, deciding cases. How do judges' life experiences play 
into the deliberative process and how, if at all, was it 
different at the trial court level versus the appellate court 
level?
    Judge Donald. Well, obviously thank you, Congressman Cohen.
    At the trial court level, I sat as the sole decision-maker. 
In trials, of course, with juries, I had a jury there to be the 
decider of fact, but it did not rely on any kind of 
collaborative or deliberative process between judges. I was the 
sole decision-maker. At the appellate court I sit with panels. 
I sit in panels of three or sometimes with an en banc court. 
All of us, whether we acknowledge it or not, we to some degree 
rely on lived experiences. We all study the same Black letter 
law.
    Then in interpreting and applying that law, those lived 
experiences are brought to bear and for people who say, well, 
that is wrong, but how else could it be if all of us, if the 
Black letter law was all that we relied on, then we would not 
have minority and majority opinions on an issue because we 
would all see everything the same way. We would look at the law 
the same way. So, those lived experiences help us to round out 
and factor in all the considerations of the law that we are 
sitting and looking.
    So, it is important because we have a back and forth and we 
put all of those views about cases and come to hopefully a 
richer experience and sometimes, I would say this, most of the 
decisions on our court are unanimous. Most of our decisions are 
unanimous and I think it is probably that way on most courts 
but there are times when we look at those issues and, based on 
our reading of the law and our shared lived experiences, we 
come to different results as all courts do.
    Mr. Cohen. Thank you, Judge. You have a rare background for 
a Federal judge and one that people should be envious of. You 
got your degrees from the University of Memphis, my alma mater 
as well for law school. You worked at Memphis Area Legal 
Services to provide legal assistance for those who couldn't 
otherwise afford it. As a public defender, you did the same 
thing. Do you find that background useful in your deliberative 
process? How do you think having a more diverse judiciary 
particularly with respect to education or professional 
experiences would affect judicial decision-making?
    Judge Donald. I think those experiences, Congressman Cohen, 
were and are enormously important.
    We have not talked about one dimension of diversity and 
that is socioeconomic diversity. I represented people, poor 
people, who otherwise had no voice. I went into the criminal 
courts and stood as the voice and the advocate for people 
accused with the government against them and only an advocate 
representing them.
    It is important that we have not only the prosecutorial 
perspective that the judges experience, but also the defense 
perspective and to be a public interest lawyer is a component 
that we don't often find in judges but it is an important and 
critical component. I think it also helps lend legitimacy, and 
it also helps with the perception of justice by the people that 
we seek to serve.
    Mr. Cohen. Thank you, Judge Donald.
    I yield back the balance of my time.
    Mr. Johnson of Georgia. Thank you.
    We will next hear from the gentleman from Oregon, Mr. 
Bentz. Mr. Bentz, if you would turn your camera on, you will be 
recognized.
    Mr. Bentz. Thank you so much, Mr. Chair, for this most 
interesting discussion.
    I would like to start with Judge Donald. I was part of a 
commission to vet applicants to the Federal District Courts in 
the Northwest and the Ninth Circuit Court of Appeals. I asked 
that the applicants, that the doorway to apply for 
consideration be opened again because I felt we had too few 
applicants. As a result, the number doubled. I won't go into 
detail, other than to say I was disturbed by the lack of 
minority participation in that application process.
    I know that when I went to law school many years ago, the 
number of women in my class was perhaps 20 percent. Today I 
understand that about 54.9 percent of law students are female. 
You mentioned in your discussion the focus on the pipeline, and 
I would like you to go back to that for just a moment and share 
with us what you think needs to be done so that we can advance 
the interests of minorities, as well as successfully as has 
been the case with female applicants.
    Judge Donald. Absolutely. Thank you for this opportunity.
    Well, first, I want to speak specifically to the point you 
mentioned about the selection process there. Often when people 
look in an area and they don't see that there is a history of 
people who look like them being considered, they simply won't 
apply and go through the process. It is a daunting process, and 
why go through all of that if there is no opportunity that you 
might get selected.
    On the pipeline issue, it starts early on. There are many 
places where people don't know a lawyer. Let me give you an 
example of what is going on in Memphis. We have a program where 
law firms and corporations will support this position where 
they will allow high school students to go through a work 
training program and then have a summer internship in the law 
department either at the corporation or in the law firm. They 
are paid a modest stipend, but it gives them exposure and 
experience not only to lawyers but also to the area of law. We 
have had a number of people who have gone through that program 
express interest.
    At the American Bar Association, we have the legal 
opportunity minority--legal opportunity minority scholarship 
for first-generation lawyers. You would not believe the number 
of individuals in this country who have never had a lawyer in 
their family. So, we provide scholarships for people to help 
front the costs of the expense of law school and also to 
provide mentors.
    We judges have a judicial intern opportunity program to 
help students get placed as internships. Judges from across the 
country band together to do a program where we help law 
students understand the importance of clerkships and train them 
in that.
    Those are some of the pipelines. We have got to do more at 
the base, at those elementary schools when students are first 
getting started, to help them understand and envision a future 
that might include the law.
    Mr. Bentz. Thank you.
    Professor Hawkins, there has been much discussed about 
where people want to go, but not too much about how to get 
there. Perhaps this--and my question about the pipeline is one 
focus. Perhaps you could share with us what changes in law you 
would recommend to address the issues we have been discussing 
today?
    Ms. Hawkins. Do you mean the rule of law, Congressman?
    Mr. Bentz. Yes. I mean the rule of law or any--we know that 
much of that which has been discussed is challenging to achieve 
by virtue of rules we have heard, laws that apply that we have 
heard from many discussing the issues. They say we can't 
discuss race. So, what would you do to help address these 
issues? Would you do anything on the law side, or is this all 
about encouraging as opposed to passing laws?
    Ms. Hawkins. Well, I appreciate the question, because I 
think that one of the important things that we have to do is 
preserve existing law. So, currently the Supreme Court 
precedent is Grutter v. Bollinger, and that 
precedent acknowledges the compelling interest in diversity. 
Now that is in respect to higher education but, nevertheless, 
it is reasonable to assume, and certainly lower courts have 
found, applying that precedent--that diversity is a compelling 
interest across a wide range of government context including in 
the employment context.
    So, certainly there are people who think that the rule of 
law in Grutter is threatened by the current Supreme Court and I 
think what is really important is not just to preserve the 
existing recognition that diversity is, in fact, a compelling 
interest and can be pursued in ways that are legally defensible 
and that are narrowly tailored but to extend that explicitly 
outside of the context of higher education to employment 
practices and other domains.
    Mr. Bentz. Thank you for the clarity of your answer.
    I yield back.
    Mr. Johnson of Georgia. Thank you.
    We will next hear from the gentleman from New York, Mr. 
Mondaire Jones, for 5 minutes.
    Congressman Jones.
    Mr. Jones. Thank you, Chair Johnson, for your leadership as 
always and for holding this important hearing today and thank 
to you all our witnesses on both of our distinguished panels.
    As Judge Reeves stated in his written testimony, our 
judiciary may soon face, quote, ``a crisis of legitimacy.'' As 
he wrote, one reason is that quote, ``as our country becomes 
more diverse, our courts are becoming more homogeneous.''
    As an openly gay, Black attorney who grew up in section 8 
housing and on food stamps, I know how important it is that the 
judges who serve the American people truly represent the 
American people.
    When I entered law school in 2010, I hardly ever saw myself 
represented in the legal profession, let alone on the Federal 
bench. At that time there was only one openly gay Article III 
judge. When I graduated law school, there still was not a 
single openly gay Black man on the bench nor before this 
Congress had there been one in this body.
    It is for that reason that growing up I never imagined 
someone like me could even run for Congress, let alone get 
elected. Make no mistake, descriptive representation drives 
substantive representation. Who serves in our Government shapes 
who our Government serves. When decisions about us are made 
without us, underrepresented communities pay the price. There 
is a reason for that. Whether we want to admit it or not, we 
are all shaped by our life experiences.
    That, of course, does not by any stretch of the imagination 
mean that we can presume how a judge will vote simply because 
of their race, gender, or sexual orientation. I understand that 
and I agree with those individuals who have expressed concerns 
about that presumption, but we are dishonest with ourselves if 
we think that the lack of judicial diversity in this country 
does not impact judicial decision-making.
    As Professor Sen and Professor Hawkins have shown us today, 
it does look no further than the Supreme Court's cases on LGBTQ 
rights. I think the court's slow progress with respect to LGBTQ 
rights is because not enough people on the court have seen the 
humanity in Members of the LGBTQ community. As a decade of 
research on what is called contact theory shows, personal 
relationships with LGBTQ people increase support for LGBTQ 
rights.
    Does anyone really think that if they were openly LGBTQ 
Justices on the Supreme Court, LGBTQ people like me would have 
to spend every June anxiously awaiting to see if the Supreme 
Court will vote to take away our civil rights? If there were 
openly LGBTQ Justices on the Supreme Court, does anyone really 
think it would have taken them until June 2015 for the Court to 
recognize my constitutional right to marry who I love or until 
June of 2020 for the Court to Rule that Federal law prohibits 
employers from firing someone for being gay or trans?
    Does anyone really think that if there were even one openly 
LGBTQ justice, Justice Scalia would have compared LGBTQ people 
to child abusers in an address a few months after his dissent 
in Obergefell? Justice Scalia once wrote that one of his votes 
against LGBTQ rights was not of immense personal importance to 
him. Well, that might explain why he was so comfortable voting 
to oppose statutes criminalizing gay intimacy and prohibiting 
marriage equality.
    We need more judges who see the humanity in all people, who 
understand the human stakes of their decisions. We need more 
judges for whom the law is personal.
    With my time left, Professor Hawkins, can you highlight for 
us how descriptive representation improves the judicial 
decisions that most directly affect underrepresented 
communities?
    Ms. Hawkins. Absolutely. Thank you, Congressman Jones.
    Your description was quite excellent, but you are right. 
There is research that shows across a wide range of 
bureaucratic context including the bench that when there is 
racial congruence between constituents and Representatives that 
there are more responsive outcomes. This is what we call 
accountability. This is why I said that it improves judicial 
accountability to minority communities when we have a diverse 
bench.
    We know that not because, as so many people have said 
already, race, gender, ethnicity, LGBTQ status, or any other 
dimension of identity necessarily dictates outcomes. It is 
because they influence experience and perspectives, and they 
make people more able to relate to people who come before the 
Court and before the government to plead their case or to seek 
some sort of redress. So that is what makes descriptive 
representation translate into substantive representation and 
what I would call political accountability.
    Mr. Jones. Thank you, Professor.
    Mr. Chair, I yield back.
    Mr. Johnson of Georgia. Thank you, Congressman Jones.
    Last but not least, the gentlelady from North Carolina, 
Congresswoman Ross, is recognized for 5 minutes and she will be 
the end, unless another member appears.
    Congresswoman Ross, you may proceed.
    Ms. Ross. Thank you very much, Mr. Chair, and I think this 
has been a fantastic hearing and coupled with the hearing that 
we had a couple of weeks ago about expanding the Federal 
judiciary, that it might be just a sweet spot in time for 
taking care of two issues that are crucial to the better 
Administration of justice in this country.
    My question is for both of our professors who have done a 
lot of research and so I am curious about whether--I understand 
and it is clear that we have a disproportionate number of men 
and White men who are on the Federal bench.
    My question is: Are they retiring or how long do they stay 
around? I think because these are lifetime appointments, we 
have fewer opportunities coming up for anybody else and I want 
to think about when will these opportunities come up and how 
age diversity is affected?
    Ms. Sen. These are really important questions.
    So, generally for the Court of Appeals the average age at 
investiture is around 50 years old and for District Court 
judges it has been closer to 40, but I think that has actually 
flipped downward over time so that we are appointing younger 
judges who then serve longer terms.
    So, to kind of concretely answer your question, these 
opportunities aren't going to come around all that often, given 
that judges are serving longer and longer terms. There are some 
papers on looking at judges' age and that is another 
characteristic that kind of factors into here. You might think 
that younger judges are actually, like more well-connected to 
kind of social developments and more sensitive to components of 
diversity, for example, LGBTQ status, than older judges, as 
younger generations are more embracing of the LGBTQ community. 
So, that is something that people have looked at and have 
found.
    Ms. Ross. Ms. Hawkins, yeah.
    Ms. Hawkins. Thank you.
    I would add to that the fact that what we really have is 
this artificial scarcity in terms of the seats available to be 
filled, and we have really an abundance of qualified 
candidates. I think it was Congressman Lieu who said this is 
not really about having an inadequate supply. This is about 
having the deliberate and conscious commitment to improving the 
diversity on the bench, because, as you said, there are so few 
seats that come available, given life tenure. As Professor Sen 
said, the age of judges at investiture is actually going down. 
I believe research shows that President Trump had the lowest 
average age at the time of appointment.
    So, we know that these opportunities are few and far 
between. Because of that, there are usually robust candidate 
pools that are available, rich with not only well-qualified 
candidates but very diverse candidates. So, this is not really 
a pipeline problem. This is an appointment problem. We really 
just have to be deliberate and conscious about the commitment, 
just like Jimmy Carter did when he said, ``I am going to do 
this.'' It happened.
    Ms. Ross. To follow up, this Committee had a hearing on the 
need to expand the Federal bench, particularly at the District 
Court level, because of the caseloads and because of population 
increases. If we did that, would that be something that would 
provide the opportunity for all these qualified candidates to 
be considered so that it wouldn't be such a small number, that 
we could then have much more of a balance, because we would 
have so many more opportunities to fill those positions?
    Ms. Sen. I think the answer is yes, and I think we could 
make a huge impact here with a small number. So, for example, 
going to the number of Native American judges which is just 
two, we could add one more and that would actually increase the 
percentage of Native Americans on the Federal bench by 50 
percent. Right? So, small numbers could have a huge impact 
here, and I think that speaks to your point. This is a great 
opportunity to do that.
    Ms. Ross. Okay.
    Ms. Hawkins. I echo that. Again, scarcity is really the 
problem. It is the scarcity of opportunities that prevents us, 
in addition to the will, the political will to do this. Once we 
have the political will, the scarcity of opportunity is another 
impediment. So, expanding the Federal court system is certainly 
a way to expand those opportunities and reduce that artificial 
scarcity.
    Ms. Ross. Well, wonderful. Maybe, we will get around to 
doing that for the first time in 30 years.
    Thank you very much, Mr. Chair. I yield back.
    Mr. Johnson of Georgia. I thank the gentlelady.
    I also thank the witnesses for their appearance, for their 
testimony, and for their time. I deeply thank you.
    Mr. Kirsanow. Mr. Chair.
    Mr. Johnson of Georgia. This concludes today hearing.
    Mr. Kirsanow. Mr. Chair, a point of personal privilege.
    Mr. Johnson of Georgia. Yes.
    Mr. Kirsanow. I think the claim was made I lied to the 
Committee about the reversal rates of the Sixth--of the Ninth 
Circuit. I want to reemphasize that the Ninth Circuit over the 
last 25 years is the most reversed circuit by the Supreme 
Court.
    Mr. Johnson of Georgia. Well, I think that the figures 
speak for themselves and it is a matter of ideology that the 
Ninth Circuit has been so overruled over the years more than 
any other circuit. So, that is a matter of ideology as opposed 
to competence. There is no question about that.
    So, without objection, all Members will have 5 legislative 
days to submit additional written questions for the witnesses 
or additional materials for the record.
    With that, the hearing is adjourned.
    [Whereupon, at 4:38 p.m., the Subcommittee was adjourned.]

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