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


                  THE IMPORTANCE OF A DIVERSE FEDERAL
                 JUDICIARY, PART 2: THE SELECTION AND 
                          CONFIRMATION PROCESS

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

                                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

                               __________

                         MONDAY, JULY 12, 2021

                               __________

                           Serial No. 117-32

                               __________

         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                    
48-332                    WASHINGTON : 2022                     
          
-----------------------------------------------------------------------------------                  
               
                       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

                              ----------                              

                         Monday, July 12, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on the Courts, Intellectual Property, and the 
  Internet from the State of Georgia.............................     1
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary, from the State of New York..........................     3
The Honorable Darrell Issa, Ranking Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of California..................................................     4

                               WITNESSES
                                Panel I

The Honorable Monica M. Marquez, Associate Justice, Colorado 
  Supreme Court
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
The Honorable Anne K. McKeig, Associate Justice, Minnesota 
  Supreme Court
  Oral Testimony.................................................    19
  Prepared Statement.............................................    21
The Honorable Richard E. Myers II, Chief District Judge, United 
  States District Court, Eastern District of North Carolina
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26
The Honorable Michael J. McShane, District Judge, United States 
  District Court, District of Oregon
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31

                                Panel II

Ian Warner, Co-Chair, Judicial Merit Selection Committee for the 
  Western District of Washington
  Oral Testimony.................................................    34
  Prepared Statement.............................................    37
Rear Admiral A.B. Cruz III, USN (ret.), President, National Asian 
  Pacific American Bar Association
  Oral Testimony.................................................    42
  Prepared Statement.............................................    44
Jennifer C. Braceras, Director, Independent Women's Law Center
  Oral Testimony.................................................    54
  Prepared Statement.............................................    56
Elia Diaz-Yaeger, National President, Hispanic National Bar 
  Association
  Oral Testimony.................................................    60
  Prepared Statement.............................................    62

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

An article entitled, ``How Trump compares with other recent 
  presidents in appointing federal judges,'' Pew Research Center, 
  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...................    88

                                APPENDIX

A map of APA Judges by Federal Judicial District from the 
  National Asian Pacific American Bar Association, 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......................   100

 
                  THE IMPORTANCE OF A DIVERSE FEDERAL
       JUDICIARY, PART 2: THE SELECTION AND CONFIRMATION PROCESS

                              ----------                              


                         Monday, July 12, 2021

                       House of Representatives,

             Subcommittee on Courts, Intellectual Property,

                            and the Internet

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 10:04 a.m., via 
Zoom, Hon. Henry C. ``Hank'' Johnson, Jr. [Chair of the 
Subcommittee] presiding.
    Present: Representatives Johnson of Georgia, Nadler, 
Deutch, Jeffries, Stanton, Ross, Issa, Jordan, Chabot, Gohmert, 
Johnson of Louisiana, Tiffany, Bishop, Fischbach, Fitzgerald, 
and Bentz.
    Staff Present: David Greengrass, Senior Counsel; Moh 
Sharma, Director of Member Services and Outreach & Policy 
Advisor; Cierra Fontenot, Chief Clerk; Merrick Nelson, Digital 
Director; Jamie Simpson, Chief Counsel; Matt Robinson, Counsel; 
Rosalind Jackson, Professional Staff Member; Betsy Ferguson, 
Minority Senior Counsel; Andrea Woodard, Minority Professional 
Staff Member; and Kiley Bidelman, Minority Clerk.
    Mr. Johnson of Georgia. The Subcommittee will now come to 
order, and without objection, the Chair is authorized to 
declare recesses of the Subcommittee at any time. Welcome to 
this morning'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, and other written 
materials that Members might want to offer as part of our 
hearing today.
    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 like to 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 at any time you 
seek recognition.
    I will now recognize myself for an opening statement.
    Today, the Subcommittee continues its discussion on an 
issue that impacts all Americans: Diversity within the Federal 
judiciary. This past March, in our first hearing on this topic, 
we discussed why judicial diversity is important. Witnesses 
explained how judicial diversity, both personal and 
professional, is essential to preserving public confidence and 
trust in our judicial system, protecting the rule of law, 
enhancing the quality of judicial decision-making, and making 
sure that exceptional lawyers who aspire for public service 
know that this path is open to all.
    Today's hearing considers how we can achieve those goals by 
examining a critical but often unexamined part of the pathway 
to becoming a judge, namely, how a highly qualified lawyer's 
name gets into the pool of candidates from whom the President 
will ultimately select a nominee.
    As we will hear today, the process has varied widely across 
the country, and over time, often dependent on the involvement 
of the home State Senators where the judicial vacancy has 
opened, in addition to the President.
    I hope to learn more today about how we can ensure that 
highly qualified lawyers with a wide range of backgrounds and 
legal experience are able to participate in the judicial 
selection process.
    There has been progress on this front. Just seven months 
ago into his first year in office, President Biden has 
nominated an historic, diverse slate of experienced lawyers 
representing a broad array of professional legal backgrounds, 
including work as public defenders, prosecutors, labor lawyers, 
civil rights lawyers, Indian law practitioners, immigration 
lawyers, commercial litigators, clerks, academics, and State 
and Federal judges.
    Their personal backgrounds are just as varied, from a 
retired Army captain who deployed twice to Iraq, who also 
happens to be the first Muslim ever appointed to a Federal 
judgeship, to a State court judge who left his complex 
litigation practice to open his own practice, specializing in 
immigration law in order to serve the community he grew up in.
    Yet, there is much more work to be done. One only need look 
at the current composition of our courts to see that. For 
highly qualified lawyers who don't fit a certain profile, the 
path to the Federal Bench can seem as narrow as a tightrope.
    Female and minority judges are still sorely 
underrepresented on our Federal bench, which is dominated by 
former prosecutors and corporate law firm partners from the 
most expensive law schools in the country.
    The lack of diversity is especially stark among bankruptcy 
and magistrate judges, who, together, handle the vast majority 
of the Federal docket. The upshot is this: If you are a 
plaintiff or criminal defendant, you could very well look at 
the Federal judiciary taken as a whole, and wonder if you will 
get a fair shot. If you are a litigator or criminal law 
practitioner, you might wonder how you will be heard, and if 
you are an extraordinary lawyer who might want to be a Federal 
judge, you might wonder if you really belong.
    These problems can seem daunting, but a growing body of 
best practices from State and Federal judicial selection 
processes suggests that there are some straightforward steps we 
can take in the right direction.
    The Witnesses for today's hearing bring with them unique 
knowledge and experience regarding the less visible but still 
critical parts of our judicial selection process. I look 
forward to hearing from them today as we move forward with this 
discussion and how best to address this important issue.
    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?
    I do not see Mr. Issa on camera, so I will now move to the 
Chair of the Full Committee, the gentleman from New York, Chair 
Nadler, for your statement.
    Chair Nadler. Thank you, Mr. Chair. Thank you for holding 
this series of hearings on the importance of a diverse Federal 
judiciary. I appreciate the opportunity to focus today on the 
selection and confirmation process.
    A diverse Federal judiciary preserves public trust in the 
courts and enriches judicial decision-making. As I said at the 
Subcommittee's first hearing on this topic, we need to 
determine why, in 2021, our Federal Courts remain so strikingly 
nondiverse in so many ways, and what we can do to ensure that 
the path to the Federal bench is open to all highly qualified 
lawyers willing to commit themselves to equal justice under the 
law.
    To be sure, we have made progress. Although the judiciary 
remains disproportionately White and male and corporate law 
partners, prosecutors and those with Ivy League degrees still 
predominate, the Federal Courts are certainly less homogenous 
than they once were.
    That progress did not just happen. It was the product of 
decades of efforts by people like our distinguished Witnesses, 
and by political leaders who recognized the value of increasing 
diversity on the Federal bench.
    This progress has unfortunately come in waves. It began in 
earnest under President Jimmy Carter, who created a Circuit 
Court nominating commission that was instructed to recommend 
lawyers who have demonstrated outstanding legal ability and 
commitment to equal justice under law, and whose training, 
experience, or expertise would help to meet a specific need of 
the court.
    By the end of a single term, President Carter had appointed 
four times as many women to the Federal bench as all his 
predecessors combined, and more than twice as many people of 
color.
    Progress continued with President Clinton, whose White 
House counsel explained that they wanted nominees who were, 
quote, ``balanced people who had a life and a wide range of 
experiences,'' unquote. It resumed again under President Obama, 
whose White House counsel explained to them, quote, ``The 
President wants the Federal Courts to look like America. He 
wants the people who are coming to court to feel like it is 
their court as well,'' unquote.
    The effort to ensure that our judiciary encompasses a wide 
range of personal and professional backgrounds has resumed once 
more under the Biden Administration, whose White House counsel 
made clear in a letter sent to Senators earlier this year, that 
the Administration wanted judicial nominees who, quote, 
``represent the best of America,'' quote, ``who look like 
America,'' and quote, ``who have a wide range of life and 
professional experiences.''
    While Presidents may set the tone for who they will 
ultimately nominate for a judicial vacancy, the judicial 
selection process and practice is far more complex than the 
requirements set forth in the Constitution, that the President 
nominates, and the Senate confirms.
    For example, most people may not realize that home State 
Senators also often play a significant role in recommending 
District Court nominees to the White House.
    Most people may not be aware that our bankruptcy and 
magistrate judges, who are even less diverse than the rest of 
the Federal judiciary, are chosen by District and Circuit Court 
judges.
    As I think our Witnesses will explain, there are aspects of 
the process that resemble many other jobs. For example, people 
will not apply for a job unless they know about a vacancy and 
how to apply for it. They probably will not apply if they do 
not think that they are wanted or if they do not have an 
adequate system of support and resources to help them through 
what can be a long and complex process.
    That is true for potential judges. It is as true for 
potential judges as for anyone else. The late Justice Ruth 
Bader Ginsburg, for example, explained that, quote, ``The first 
time I ever thought of being a judge was when Jimmy Carter 
announced to the world that he wanted to change the complexion 
of the U.S. judiciary,'' which he did.
    Justice Ginsburg's story parallels the experience of many 
judges who have different personal and professional backgrounds 
than their colleagues on the bench.
    Fortunately, years of experience at both the State and 
Federal level have given us some useful tools to make sure that 
highly qualified, potential judicial nominees are not 
overlooked.
    I am pleased that we will be hearing from our distinguished 
Witnesses about how to design a selection process that ensures 
that highly qualified lawyers know about a vacancy and how to 
apply, are encouraged to apply, and are evaluated fairly. I 
look forward to hearing from our Witnesses on this very 
important topic, and I yield back the balance of my time.
    Mr. Johnson of Georgia. Thank you. We have now been joined 
by my colleague from California, the Ranking Member of the 
Subcommittee, Mr. Issa, who has been having some persistent 
technological difficulties, and he finally is on. So, thank 
you, sir, and the floor is yours for five minutes.
    Mr. Issa. Thank you, Mr. Chair, and I apologize for the 
poor video. I went to all the trouble of having everything set 
up perfectly, and the computer doesn't work, but the iPhone 
does.
    I want to thank you for holding this important hearing. As 
our Committee considers the expansion of the court, more than 
ever, the question of getting it right with an additional 
perhaps 50 or more nominees, in addition to the 100 current 
vacancies based on retirements or senior status, I can't think 
of a more appropriate time to hold this hearing.
    There is no question at all that diversity within the court 
or, if you will, the court representing a diverse group that 
reflects the look of America, helps Americans believe that 
every American has access to the opportunities and that justice 
knows no particular color.
    There is no question at all that today, the court does not 
reflect exactly America. First, the Supreme Court reflects 
Harvard more than it reflects other universities. It reflects 
more men than women, and it reflects, if you will, the legacy 
of its Presidents who appointed those individuals, meaning, it 
has currently more people appointed by Republicans than 
Democrats.
    That is not just true today, but it was true at the time of 
our founding. When George Washington appointed every member of 
the court and the replacements, he appointed more Supreme Court 
justices at a time when the Supreme Court was the court, than 
any other President since. No question at all he was a White 
male who appointed all White males.
    The fact is, today the court is diverse. Today the court 
includes Native Americans, Hispanics, women, men, people who 
are foreign-born, and people who were born here. Just as then, 
the court will never exactly reflect the population in the 
United States, but, rather, it will reflect the population of 
qualified candidates.
    One of the considerations that we will hear today is, in 
fact, are there sufficient qualified candidates? Are we getting 
the best and the brightest, no matter where they came from, to 
choose law, to choose judgeship, and to choose to serve for, 
quite frankly, less money, and, in some cases, a harder job 
than they would choose if they remained in the other parts of 
their profession, including law.
    One of the things that will be confrontational at times 
will be, do we choose to have people represented us in the 
court, because diversity creates people with different 
opinions, or is diversity simply the legitimate statement by 
the court that everyone is there.
    If I stand or sit before an African American judge or a 
woman, am I going to get a different case than if I sit before 
an Italian American? One would hope, and I certainly believe, 
that if we pick the right judges, it will make no difference as 
to the country of origin, gender, or nationality of the judge.
    Many people today reflect the court, the High Court, and 
say that it has a bias toward one side or the other because of 
who appointed them. That kind of discussion, although 
interesting and, perhaps, sometimes reflective of the types of 
people and their opinions, also undermines the belief that the 
court in the case of a single judge trying you for either 
criminal or civil, will, in fact, implement the law rather than 
their opinion or their bias.
    Today, we will have a discussion about, among other things, 
opinions and biases, and whether or not the correct choice of 
judges gives us a judge who is--he or she is relatively free of 
those biases that the rest of us enjoy in our private lives but 
a Federal judge should not and cannot enjoy in theirs.
    Mr. Chair, again, I thank you. I believe this is an 
incredibly important discussion and will lead to a better 
understanding by all of us of what we must do in the way of 
pushing for reforms in the court. With that, I yield back.
    Mr. Johnson of Georgia. Thank you, Mr. Issa. I will now 
introduce our Witnesses for the first panel. The Honorable 
Monica M. Marquez was pointed to the Colorado Supreme Court in 
2010. She is the first Latina to serve on the court in its 
history.
    Among her many current commitments besides judging, she 
serves as Chair of the Colorado Supreme Court's Task Force on 
Lawyer Well-Being and is a co-leader on the Bench Dream Team, a 
group of judges dedicated to diversity and inclusion in 
Colorado's judicial system.
    Prior to her appointment, Justice Marquez served as Deputy 
Attorney General at the Colorado Attorney General's Office, and 
as Assistant Solicitor General, and as Assistant Attorney 
General. Before that, she practiced general commercial 
litigation and employment law at a Denver law firm.
    Justice Marquez earned her bachelor's degree from Stanford 
University and her law degree from Yale Law School. She clerked 
for Judge Michael A. Ponsor of the United States District Court 
for the District of Massachusetts and for Judge David M. Ebel 
of the United States Court of Appeals for the 10th Circuit. 
Welcome, Justice Marquez.
    The Honorable Anne K. McKeig joined the Minnesota Supreme 
Court in September of 2016, making her the first-female Native 
American to sit on any State Supreme Court in the United 
States.
    A descendant of the White Earth Nation, Justice McKeig is a 
native of Federal Dam, Minnesota, where she grew up on the 
Leech Lake Reservation. She served as an Assistant County 
Attorney for 16 years in Hennepin County, Minnesota, handling 
child protective cases and adoption matters with a specialty in 
cases that fall under the provisions of the Indian Child 
Welfare Act. She then served as a District Court judge in 
Hennepin County.
    Justice McKeig co-authored law school curriculum entitled, 
``Child Abuse and the Law,'' and teaches as an adjunct 
professor. Among her many community engagements, she is a 
member of the Speakers' Bureau for the Zero Abuse Project and a 
member of the State Tribal Court Forum.
    She attended St. Catherine University for her undergraduate 
degree and received her law degree from Hamline University. 
Welcome, Judge McKeig.
    I will next turn to my colleague, the gentleman from North 
Carolina, Mr. Bishop, to introduce Chief Judge Myers. Mr. 
Bishop?
    Mr. Bishop. Thank you, Mr. Chair. I am honored to introduce 
Richard E. Myers, II, Chief Judge of the United States District 
Court for the Eastern District of North Carolina. Judge Myers 
is a native of Jamaica but grew up in Wilmington, North 
Carolina. He graduated summa cum laude from UNC Wilmington, and 
with high honors and Order of the Coif from the UNC School of 
Law, eight years after yours truly.
    Judge Myers had a distinguished career as an attorney in 
private practice and as a Federal prosecutor. He served as 
Assistant U.S. Attorney for both the central District of 
California and the Eastern District of North Carolina, and 
taught criminal law at our alma mater from 2004-2019.
    In 2019, President Trump nominated Judge Myers to the 
District Court bench, and the Senate confirmed by an impressive 
68-21 margin. Judge Myers became Chief Judge of the Eastern 
District of North Carolina this January.
    I was privileged to meet then Professor Myers during my 
tenure in the North Carolina Senate. I am thrilled to renew the 
acquaintance and proud to introduce Your Honor to the Committee 
today. I am eager to hear your perspective in today's 
proceedings.
    Mr. Johnson of Georgia. Thank you, and welcome Chief Judge 
Myers.
    The Honorable Michael J. McShane is a United States 
District judge for the District of Oregon. Prior to serving on 
the Federal Court, Judge McShane was a Multnomah County judge 
for 15 years, presiding over a variety of criminal and civil 
cases. He was appointed to the county's death penalty panel in 
2003 and handled over 25 capital cases.
    He teaches extensively on trial practice, advocacy, and 
evidence, and he focuses much of his time off the bench working 
with at-risk youth.
    Prior to becoming a judge, Judge McShane worked at the 
Metropolitan Public Defenders Office in Portland. Judge McShane 
grew up in rural Eastern Washington and obtained his bachelor's 
degree at Gonzaga University.
    Afterwards, he joined the Jesuit Volunteer Corps, and 
worked with homeless parolees in Portland, Oregon. He then 
obtained his JD from Lewis & Clark Law School.
    Judge McShane is one of 11 LGBTQ active, Article III 
judges, and the first gay Federal judge serving the district of 
Oregon. Welcome, Judge McShane.
    Before proceeding with testimony, I hereby remind the 
Witnesses that all your written and oral statements made to 
this Subcommittee in connection with this hearing are subject 
to 18 USC 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 five minutes. There is a timer 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 
Witnesses' testimonies.
    Judge Marquez, the floor is yours. You may begin.

              STATEMENT OF HON. MONICA M. MARQUEZ

    Ms. Marquez. Mr. Chair, Ranking Member, and distinguished 
Members of the Subcommittee, thank you for this opportunity to 
address you today about Colorado's efforts to increase 
diversity of our State court bench.
    I will highlight just a few of our initiatives underwent in 
Colorado, but my written statement includes several others, 
including links to more information about all those programs.
    Our efforts to diversify our State court bench took on 
renewed intensity in late 2018, when, following a series of 
retirements, Colorado was left without a single Black District 
Court judge serving in our State court system.
    This underrepresentation was emblematic of the lack of 
diversity throughout our State courts, and it prompted us to 
make diversifying the bench an urgent priority. Since that 
time, we have made some progress.
    Of our 300-plus State court judges, approximately 41 
percent are now women. We now have 12 Black, 31 Hispanic or 
Latinx, six Asian American, one Native American, and three 
multiracial judges, reflecting increases in each of these 
categories since 2018.
    Three key factors have contributed to our success.
    First, with bipartisan support, the Colorado General 
Assembly enacted legislation that established a full-time 
position responsible for education and outreach efforts 
regarding judicial vacancies and the application process.
    To our knowledge, Colorado is the first State in the nation 
to have a position of this kind within its judicial department. 
Sumi Lee, our head of Judicial Diversity Outreach, has used a 
data-driven approach to identify outreach opportunities and 
develop robust educational programming.
    With her work, we aim to demystify the application and 
nomination process, and make it more transparent and accessible 
to all potential applicants.
    Second, we have engaged the broader legal community in this 
effort. Our Diversity on the Bench Coalition includes affinity 
bar presidents, law school deans, judges, and attorneys from 
private practice and government.
    This coalition partners with a number of community leaders 
and organizations to develop viable candidates for judicial 
vacancies, increase diversity on our nominating commissions, 
educate decisionmakers at all levels of our merit selection 
process about the value of a diverse bench, and promote the 
value of bench diversity through focus messaging, articles, and 
outreach to our broader community.
    Separately, our Bench Dream Team, our group of State court 
judges dedicated to diversity and inclusion, has partnered with 
the Center for Legal Inclusiveness to update an orientation 
video for our judicial nominating commissions.
    This fall, the Bench Dream Team will pilot a new six-month 
intensive coaching program to support diverse candidates for 
judicial vacancies.
    Our pipeline efforts extend to college and law students. 
Law School Yes We Can, is one such program that mentors college 
students from underrepresented communities and prepares those 
students to apply for law school. This program offers 
networking opportunities, leadership training, and LSAT 
preparation.
    For our diverse law students, we provide a host of 
experiential learning and networking opportunities that can 
lead to clerkships through the Judge Lorenzo Marquez Appellate 
Externship Program, the Colorado Pledge to Diversity Summer 
Clerkship Program, and even in the pandemic, our new virtual 
coffeehouse, called Java With Judges.
    Third, we promote the visibility of our diverse judges 
because we know it is difficult to be what you cannot see. In 
this vein, virtual meetings in the pandemic have actually 
boosted our engagement with judges and potential candidates 
from rural parts of Colorado.
    Through these many partnerships, we hope to light pathways 
to the bench from all four corners of our State.
    In closing, I can attest personally that having a diverse 
collection of backgrounds and life experiences among the judges 
on an appellate court leads to richer and fuller discussions of 
the issues, and ultimately, better and more thoughtful 
decisions.
    Equally importantly, having a diverse judiciary strengthens 
public perception that the justice rendered by our courts is 
truly equal. That perception of legitimacy is so critical. It 
promotes confidence in and respect for the decisions rendered 
by our courts, and, thereby, strengthens the rule of law 
itself. I thank this Committee for its attention to these 
important issues.
    [The statement of Ms. Marquez follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Judge Marquez. I am 
sorry. Thank you, Justice Marquez.
    Justice McKeig, you may now begin.

                STATEMENT OF HON. ANNE K. McKEIG

    Ms. McKeig. Boozhoo, Mr. Chair, Ranking Member, and Members 
of the Subcommittee. I am honored to have the opportunity to 
address you today on the important topic of diversity in the 
Federal judiciary. My Indian name is Awaniikwe. I am a proud 
descendant of the White Earth Nation, and grateful daughter of 
the Leech Lake Reservation in rural Northwest Minnesota.
    In English, my name is Anne McKeig, and I am the first 
indigenous woman ever to serve on any State Supreme Court in 
the history of this nation.
    In my Native language, my Tribal name means mist woman, 
which in our community is the blanket of mist in the morning 
that nurtures and protects the land across the White Earth 
Nation. I can speak from experience that we, as indigenous 
women, are all mist women. We are protectors of our children, 
our spouses, and our communities.
    Yet, history and life experiences tell us that despite 
being protectors, we far too often feel unprotected by systems 
that are supported and supposed to protect us, including the 
Federal judiciary.
    Now, I could spend the remainder of my time rattling off 
the alarming statistics that illustrate why the Federal 
judiciary contributes to our feelings and fears as indigenous 
people such as the fact that there have been only four 
indigenous people who have ever served as Federal judges since 
the founding of this republic.
    I believe that my time is best served on focusing on what I 
believe to be the critical reasons that greater diversity is 
needed in the Federal judiciary, which is fairness and 
legitimacy.
    If you can imagine an indigenous mother entering a Federal 
Courthouse, and seeing a White probation officer, White staff 
for pretrial services, a White judge, a White prosecutor, a 
White public defender, a White court reporter, dictating her 
destiny moving forward, she begins to believe that this process 
is not legitimate or fair for her. She no longer feels a part 
of the self-governance that we so hold dear in this country.
    Diversity in the judiciary isn't simply about the color of 
a person. It goes to the very core of what we need to preserve, 
the role of the judiciary belief that all of us, we can wield 
power in creating and maintaining our republic and feel a part 
of the system.
    I have a very nontraditional path to the bench and one that 
would not have taken place but for the fact that I saw my 
mentor, Judge Robert Blaeser, the first Native American judge 
appointed to the Twin Cities District Court, and I saw his 
investiture process.
    I did not know him. I went and stood in the back of the 
room, and it was during the course of his investiture, that I 
begin to believe that a young woman from a reservation, a 
hometown of 106 people, could potentially be a judge one day 
and serve her community as a whole.
    It was through his mentorship and belief in me and helping 
me see that I had a greater obligation to my community, that I 
could be a part of the solution.
    Now, Minnesota has made, I believe, great strides in 
diversifying our judiciary. We have held judicial boot camps, 
which have been specifically sought out to the affinity 
community so that we can demystify the judicial selection 
process.
    We have set up strong mentor programs like the one that I 
experienced with Judge Robert Blaeser.
    We have a strong judicial commission that includes Members 
that are also from the public.
    We have done much public speaking, including outreach 
events, such as the Minnesota Supreme Court going to the Red 
Lake Reservation, the first visit in our history to any 
indigenous nation.
    We also travel to high schools and hold court hearings as 
though they were at our court in the high schools, and spend 
time with students to encourage them, including all students 
that they, too, could have a dream of becoming a judge.
    It is incredibly important that those who come before our 
court systems feel that they are a part of the system and that 
they have a real opportunity to be heard.
    I am grateful for this opportunity today. I thank you for 
all the work that you are doing. Miigwech
    [The statement of Ms. McKeig follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Justice McKeig.
    Next, we will hear from Chief Judge Myers. Chief Judge 
Myers, please, you may begin.

               STATEMENT OF HON. RICHARD E. MYERS

    Mr. Myers. Thank you, Mr. Chair, Ranking Member, and 
distinguished Members of the Subcommittee. First, a fairly 
selected judiciary is crucial because of the messages it sends 
regarding equal opportunity, access to the courts, and the 
fairness of our judicial system.
    Discriminating on the basis of immutable characteristics 
damages and defies those who choose to discriminate, and it 
damages those excluded or chosen for that reason. Absolute 
equality of opportunities is essential to judicial selection 
and to the public's faith in the judiciary. No American should 
believe that someone like me can't get fair consideration for 
any position of public service.
    Today, I want to talk a little bit about the path to a 
diverse judiciary, and the collateral consequences of the 
choices we make along the way. First, a little bit about my own 
path, and then a look to the future.
    I am a Jamaican immigrant of mixed ancestry. My family 
moved to Miami in the late 1970s. In the early 1980s, we moved 
again to Wilmington, North Carolina, where I now sit as a 
Federal District judge. I may represent the future of the color 
line. There are people eager to place me into a racial category 
for reasons of their own, but my background and appearance 
defies simple categorization.
    When my family moved to Wilmington, I was repeatedly asked, 
what are you? This was intended to provide the asker with 
racial information to fit me for their preexisting pigeonhole. 
Fortyhow years ago, my opportunities and social status were 
very much dependent on the answer. The answer Jamaican was 
insufficiently specific for some, and was often followed by the 
more pointed question, no, what race? My answer, the human 
race, was deemed by some people to be too clever by half, but 
it was and remains my answer. I embody the American motto, e 
pluribus unum, or the Jamaican equivalent, out of many, one 
people.
    This inquiry into my race has not gone away, although the 
consequences have changed. I remember friends of different 
races in law school arguing over my race, fortunately in an 
attempt to claim me rather than disclaim me.
    At every career stop, I was encouraged to select particular 
boxes on personnel forms to ensure that the organization hiring 
me got credit for diversity.
    All this was troubling to me because it fostered the 
perception that I would be treated as a representation of some 
category, not as a unique individual with my own talents, 
goals, and dreams.
    Fortunately, I felt none of this racial pressure when I was 
selected as a candidate to be a Federal judge. At the time, I 
was a law professor at the University of North Carolina School 
of Law. I brought a specific kind of diversity there, too. I 
was an outspoken advocate of textualism, originalism, and 
judicial restraint within the increasingly liberal, legal 
academy.
    My exposure to thousands of law students and leaders in the 
legal field within our State as the conservative law professor, 
I am sure was a significant reason I was nominated.
    Before joining the academy, I served as a Federal 
prosecutor and as a defense attorney before that. The 
combination of personal autobiography and legal philosophy has 
caused whiplash for some people's preconceptions.
    I can happily say that at no time during my selection and 
nomination process was I asked about my race, until after my 
confirmation hearing. Ironically, as I was walking out of the 
hearing, a reporter pointedly asked me what race I was, and 
told me that the President was criticized by people who never 
met me for failing to select a diverse candidate.
    Looking forward, racism is real, and I have personal 
experience with it, but I also believe that justice is blind, 
and that all justices and judges wear the same Black robes for 
a reason. We need to strive self-consciously and mightily to 
achieve Martin Luther King's dream to create the day when we 
all are judged not by the color of our skin, but by the content 
of our character.
    This is my chosen country. I have taken multiple oaths to 
uphold and defend the Constitution of the United States, at my 
naturalization ceremony, again when I became an Assistant 
United States Attorney, and yet again, when I became a Federal 
judge.
    We have amended our Constitution multiple times to further 
commit us to the principle that all people are equal before the 
law. We still have much work to do before we fully accomplish 
that goal. As a judge, I strive every day to find neutral 
principles of law and apply them neutrally to all the people 
who appear before me without fear or favor.
    If the public reasonably believes a potential judge was 
excluded or chosen because of an immutable characteristic, then 
we as a nation lose faith that the judge chosen was truly the 
best choice amongst all those available.
    I encourage our leaders to remain committed to the 
proposition that all people are equal before the law, to 
consider every potential candidate as an individual, with all 
the nuance that is requires, and to broaden the pipeline so 
that we can seek the best candidates without fear or favor. 
Again, thank you.
    [The statement of Mr. Myers follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Chief Judge Myers.
    Now we will turn to Judge McShane. Judge McShane, you may 
begin.

              STATEMENT OF HON. MICHAEL J. McSHANE

    Mr. McShane. Greetings from Oregon. I want to thank the 
Committee and its leadership for inviting me to speak today on 
this topic of diversity. I am not going to speak today on the 
importance of diversity. I believe this body would not be 
holding such as hearing as this if it did not understand why a 
truly diverse Federal bench is important to our democracy.
    Instead, I want to talk about some of the challenges we as 
a court are facing in our attempts at diversity inclusion and 
some of the steps we can make to widen the opportunities for a 
broader spectrum of judicial applicants. This means looking at 
the traditional pathways to the bench and exploring some of the 
nontraditional pathways to the Federal bench.
    The last time I had an opportunity to speak on the subject 
of diversity was a few years ago before a group of clerks and 
young lawyers at the Federal Court administrative offices in 
Washington, DC. It was part of a Gay Pride event, celebrating 
Gay Pride Month.
    One of the young lawyers asked me, how can we diversify the 
Federal Courts? Without giving it much thought, I blurted out, 
well, we need to lose our addiction to Yale and Harvard. The 
entire room went silent. The fact is, almost every lawyer in 
the room had, in fact, gone to Yale or Harvard.
    I will be the first to say that these are great law 
schools, but diversity and inclusion cannot rely simply on the 
pedigree of a diploma from a particular school. It requires us 
to reach out proactively and invite more people to the table.
    So, why are the traditional pathways not working? What are 
the traditional pathways?
    Well, one of the first traditional pathways is judicial 
clerkships. Many of my colleagues, and if you look, most of the 
justices on the Supreme Court, began their career as a judicial 
clerk. It is a job that opens doors.
    When it comes to the hiring of clerks, local law schools 
and regional law schools are often overlooked in favor of the 
top-ranked schools. It is in these schools that we find that 
they are much more accessible to a diverse group of students; 
students from rural communities; working moms and dads; 
students caring for an aging parent; students who were the 
first in their family to navigate higher education; minority 
students; and students who, quite frankly, had to hold real 
jobs to survive while they went to school.
    I have had clerks from top law schools, and I have had 
clerks from local law schools. They are equal in their 
excellence. Sometimes the only difference is the local law 
schools actually grade the students' works.
    Another traditional pathway to the Federal bench is the 
magistrate judge positions. In most districts, magistrate 
judges are chosen by the Article III judges themselves. There 
is a tendency to pick somebody who is a known quantity, 
somebody we are familiar with, who we have seen in court. That 
often tends to be somebody who looks a lot like us, and that 
often is somebody from the U.S. Attorney's office, or a law 
firm.
    We need to encourage people who don't necessarily look like 
us to apply. I was very proud that the District of Oregon, 3 
years ago, selected the first Muslim American judicial officer 
in United States history when we selected Mustafa Kusabhai to 
sit as our newest magistrate judge.
    I have sat on many panels where invariably in law school, 
we are asked, what is the path to becoming a Federal judge? The 
traditional answer is to work at the U.S. Attorney's Office or 
a large reputable law firm.
    These are good answers, but why do we rely on these 
traditions if we are seeking true diversity? Why aren't we able 
to tell these young minds, go work with the poor; get a job 
with Legal Aid; become a public defender, become an immigration 
attorney; help injured workers, represent veterans in Portland, 
or farmers in the Klamath Basin.
    I know that when I was nominated to the bench, it was very 
important to the Obama Administration that I came from a public 
defender background. They seemed to tout that just as quickly 
as they touted the fact that I was openly gay.
    One of my friends actually added PD, public defender, to 
LGBTQ, because it was so rare, and I still feel like I am a 
little bit of a unicorn with that public defender past.
    We need to explore these nontraditional career paths and at 
least ask the questions: Why are we not seeking out those who 
work with the poor and the marginalized. Is it they are less 
intellectual? Is it they cannot be fair?
    Serving the poor and marginalized should not be a strike 
against anyone if they have the detachment necessary to follow 
the law. I was a public defender, and I opposed the death 
penalty. When I became a judge, I had to sentence somebody to 
death because it was the lawful verdict of the jury. I followed 
the law. That is what we do.
    Finally, we need to work closely with the diversity law 
associations, and encourage their student Members to apply for 
clerkships, their young attorneys to participate in Federal 
Court activities, and their qualified Members to seek 
appointments.
    The diversity law associations have to work together and 
not against each other. In my nomination process, the diversity 
bar associations came together and worked together and came up 
with a number of endorsed candidates that they could put 
forward to our Senator. It was only because of that, that my 
name was able to get through and eventually become nominated. 
So, I am so happy to see some of the diversity bar associations 
are represented on our second panel.
    So, thank you for giving me this opportunity. I am happy 
to, at any time, answer any questions.
    [The statement of Mr. McShane follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Judge McShane, and this 
will conclude the first panel testimony for today's hearing, 
and I would like to thank the Witnesses for their participation 
and for their testimony.
    We will now transition to the second panel of Witnesses.
    With those Witnesses now being on our screen, I will now 
introduce them.
    Mr. Ian Warner is the Co-Chair of the Judicial Merit 
Selection Committee for the Western District of Washington, 
which was established by Washington State's U.S. Senators, 
Patty Murray and Maria Cantwell.
    In this role, he and the Committee review candidates for 
the positions of U.S. District Court judge, advise the Senators 
on the Committee's findings, and suggests potential candidates 
for Federal Court vacancies before the Senators make their 
final recommendations to the President.
    Outside of his work with the Senators' Judicial Merit 
Selection Committee, Mr. Warner is the Senior Director for 
Public Policy with the Zillow Group.
    Prior to this role he was legal counsel for the Mayor's 
Office for the City of Seattle, and an associate with the law 
firm Dorsey & Whitney, LLP, practicing in the areas of banking 
and finance, securities, employment, and construction law.
    Mr. Warner received his Bachelor of Arts degree from 
Whitman College, and his JD from the University of Washington 
School of Law. Welcome, Mr. Warner.
    The Honorable A.B. Cruz, III, is the President of the Board 
of Governors for the National Asian Pacific American Bar 
Association. He also currently serves on the board of Graf 
Acquisition Corporation, Incorporated, and is a Senior Adviser 
at BarkerGillmore, LLC, providing executive coaching and search 
services to legal leaders, CEOs, and corporate boards. He also 
has served, and currently serves on many nonprofit and 
charitable boards.
    Admiral Cruz has helped lead several prominent companies to 
diverse industries--excuse me--Admiral Cruz has helped lead 
several prominent companies in diverse industries, including 
USAA, Emergent BioSolutions Incorporated, and Scripps Network 
Interactive Incorporated, and a variety of senior legal and 
executive roles.
    He is also a former Navy Admiral, who, during his 33-plus 
years distinguished military career, led numerous high 
performing operational teams and represented the United States 
internationally in multiple high-level engagements with foreign 
militaries.
    Over the course of his naval career, he served as Deputy 
Director of Maritime Operations for U.S. Fleet Forces Command, 
and as Deputy Commander for both U.S. 4th Fleet and Naval 
Forces Southern Command, among other posts.
    Admiral Cruz holds a JD from the Catholic University of 
America, an MA in marketing from the University of Maryland, 
and a BS in general engineering and physical sciences from U.S. 
Naval Academy. Welcome, Admiral Cruz.
    Ms. Jennifer Braceras is the Director of the Independent 
Women's Forum Law Center, a nonprofit organization that focuses 
on women's policy issues. Prior to this role, she was a 
contributing columnist and analyst for various media and news 
outlets like Boston Globe Media, the Boston Herald, New England 
Cable News, and, later, became the Editor-in-Chief of the New 
Boston Post.
    Ms. Braceras served on the U.S. Commission on Civil Rights 
for approximately six years after having been appointed by 
President George W. Bush. Before serving on the Commission, she 
was a research fellow at Harvard Law School and a legal fellow 
with the Independent Women's Forum.
    Ms. Braceras was also an attorney with the law firm Ropes & 
Gray, LLP, where she practiced labor and employment law.
    Ms. Braceras earned her Bachelor of Arts from the 
University of Massachusetts Amherst, and her JD from Harvard 
Law School. Welcome, Ms. Braceras.
    Ms. Elia Diaz-Yaeger is the President of the Hispanic 
National Bar Association. She is a frequent speaker and CLE 
presenter and serves as a diversity facilitator for the 
Louisiana State Bar Association.
    Ms. Diaz-Yaeger is also a shareholder in the insurance 
section, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard where her 
primary areas of practice include industrial employment, 
insurance defense and coverage, environmental law, commercial 
litigation, and board governance and cybersecurity.
    Ms. Diaz-Yaeger also serves as the Secretary of the Board 
of Directors of OnPath Federal Credit Union, whose mission is 
to strengthen the financial health of underserved communities 
through financial service and education.
    In addition, she has cofounded and volunteered in many 
other community organizations such as the A.D. Crossman 
Esperanza Library Project.
    Ms. Diaz-Yaeger received her Bachelor of Arts, Bachelor of 
Science, and her masters in science from the University of 
Southwestern Louisiana, and her JD from Loyola University, New 
Orleans College of Law. Welcome, Ms. Diaz-Yaeger.
    Before proceeding with testimony, I hereby remind the 
Witnesses that all your written and oral statements made to the 
Subcommittee in connection with this hearing are subject to 18 
USC 1001.
    Please note that your written statements will be entered 
into the record in their entirety. Accordingly, I ask that you 
summarize your testimony in five minutes. There is a timer, and 
it should be visible on your screen that should help you stay 
within the time limit.
    Mr. Warner, you may begin.

                    STATEMENT OF IAN WARNER

    Mr. Warner. Mr. Chair, Ranking Member Issa, and the Members 
of the Subcommittee, I am honored--
    Mr. Johnson of Georgia. Please excuse me. Mr. Warner, I am 
sorry.
    Mr. Warner. No worries, Mr. Chair. I will begin again.
    Mr. Chair, Ranking Member Issa, and the Members of the 
Subcommittee, I am honored to address you today. Similar to my 
written testimony, my comments today will primarily focus on 
the Judicial Merit Selection Committee for the Western District 
of Washington, which I Co-Chaired in 2020.
    I will begin with a bit of context, including Part 1 of 
this Subcommittee's hearing on judicial diversity. In that 
March hearing, several esteemed judges and academics 
articulated the statistical realities that the Federal bench 
has lagged behind the diversity of our country and of our legal 
community.
    They also deftly explained the importance of judicial 
diversity in terms of procedural justice and perception of 
trust.
    So, with that information already established in this 
Committee's record, I will add that the U.S. District Court for 
the Western District of Washington, has never had a lifetime 
Native American or Asian American Federal judge, considering 
that there are 29 Federally recognized tribes in Washington 
State and that Washington State is home to one of our country's 
largest AAPI communities.
    I will also note the recent Cato Institute study which 
found that the ratio of prosecutors to defense attorneys on the 
Federal bench today is almost exactly 4-1.
    So, in the context of today's hearing focused on the 
selection and confirmation process, what do these statistics 
mean? This lack of diversity on the bench speaks directly to 
potential judicial applicants to say, need not apply if you are 
from underrepresented legal backgrounds, women, lawyers of 
color, LGBTQ, or Black.
    These statistics also speak directly to witnesses, 
litigants, and the community to say, you are an outsider here.
    These realities must be addressed because the range of 
interest and people that appear before the Federal judiciary 
are broad. We must encourage qualified and historically 
marginalized potential candidates to apply by being clear that 
we believe Black, Brown, Native American, Asian American, 
women, and LGBTQ lawyers can also represent the best of our 
legal profession.
    In this year, we were able to say that the White House is 
serious about bringing in professionally diverse, historically 
underrepresented people to the bench. You should apply.
    The 2020 Committee was intentional about meeting that call 
from the President, and Senators Murray and Cantwell. Last 
December we convened to nominate candidates for five judicial 
vacancies on the Western District Bench, one of the highest 
overall sets of vacancies in the country.
    Importantly, Senator Murray made several changes to the 
Committee's composition with the intent to increase the 
diversity of legal experience in the Committee. The Committee's 
appointments included a then-U.S. attorney, a former long-time 
Federal defender, an ACLU executive director, a youth legal aid 
attorney, and others. Our youngest member was 33. Black Latino, 
Native American, and other racial and ethnic groups were 
represented.
    At the Committee's first official hearing, we heard 
directly from Senator Murray's staff, and discussed the 
December 22, 2020, letter from White House counsel designate, 
Dana Remus. That letter highlighted the White House's interest 
in candidates with, quote, ``legal experiences that have been 
historically underrepresented on the Federal bench,'' end 
quote.
    Meeting the directive to address historical 
underrepresentation required innovation in our approach. 
Innovation is often driven by diversity. In this context, the 
Committee's diversity and innovative recruiting processes were 
essential to attracting diverse applicants reflective of our 
community.
    We knew that the Committee Members, with their deep 
community connection to the Seattle and Tacoma, Washington, 
legal communities, made it generally more likely that 
professionally diverse and historically underrepresented 
applicants would apply.
    That representational diversity was and is still not 
enough. We also encouraged the Membership to highlight the 
application process within their networks and directly to reach 
out to qualified applicants who might otherwise hesitate to 
apply.
    We also publicized the vacancy announcement through 
expanded channels, including the western chapter of the Federal 
Bar Association, local minority bar associations, and local 
media outlets.
    The result of these recruiting efforts was the largest and 
most diverse applicant pool since the Committee's inception. We 
received more than 75 applications that truly represented 
Washington's broader legal community.
    The Committee then met over the course of approximately 
eight weeks and deliberated until we reached consensus on a 
slate of nominees. The outcome was the most professionally 
diverse recommendations in the Committee's history. Those 
candidates included civil rights attorneys, public defenders, a 
Native law expert, and former U.S. attorneys.
    Now, in conclusion, this very week, the Senate judiciary 
will vote on three of our outstanding nominees--Lauren King, a 
Tribal member, will be Washington's first Native--who would be 
Washington's first Native American Federal judge and a Tribal 
law expert; Tana Lin, a civil rights attorney and former public 
defender who would be Washington State's first Asian American 
Federal trial judge; and Judge David Estudillo, a current 
Superior court judge in Grant County, a rural area of 
Washington State that is home to farming and agricultural 
communities.
    This cohort of outstanding nominees look like America and 
will play a key role into creating a Western District Bench 
that reflects and engenders trust in its community.
    I want to thank the Members of the Subcommittee and their 
staff for holding this hearing on such an important topic and 
welcome your questions. Thank you.
    [The statement of Mr. Warner follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Mr. Warner.
    Next, we will turn to Admiral Cruz.
    Admiral Cruz, you may begin.

      STATEMENT OF REAR ADMIRAL A.B. CRUZ III, USN (RET.)

    Admiral Cruz. Good morning, and thank you, Chair Johnson, 
Ranking Member Issa, and--I see Committee Ranking Member 
Jordan, and the distinguished Members of this Subcommittee.
    It is indeed my honor and privilege to appear before you on 
behalf of the National Asian Pacific American Bar Association, 
or, as we call it, NAPABA. Thank you for highlighting the 
importance of a diverse Federal judiciary, which is so critical 
for ensuring faith and confidence in the rule of law.
    NAPABA represents the interests of over 60,000 Asian-
Pacific American, or APA, lawyers and consists of a nationwide 
network of nearly 90 affiliates. NAPABA is a leader in 
addressing civil rights issues confronting APA communities, and 
we have always been a strong national voice for increased 
diversity on the bench, for equal opportunity in the workplace, 
and for combating hate crimes and discrimination.
    For the APA community, the hearing comes at a crucial 
moment. Throughout the country, we are confronting the twin 
scourges of anti-Asian-American hate and COVID, for which so 
many Asian Americans have been falsely scapegoated.
    The APA legal community has responded to help a population 
that has suffered thousands of attacks, to represent victims, 
and to use all legal mechanisms available to attain justice.
    In order for our justice system to work as our Founders 
designed it, with independence and sacred constitutional duty 
to safeguard rights and liberties, the American public must be 
assured that it is fair, impartial, and will provide equal 
justice for all.
    For the APA legal community, representation on the Federal 
bench continues to be a struggle. Out of 673 Federal District 
Court seats, only 27 are held by active APA jurists. Of 179 
Federal Appellate court seats, only 10 active APA judges serve. 
As this Subcommittee knows, there has never been an APA 
candidate even nominated to the Supreme Court.
    Underrepresentation is not confined to the Federal bench. 
Currently, only six States have an APA justice sitting on their 
State supreme court.
    So, what accounts for this disparity? The APA legal 
community faces particular barriers, including inadequate 
access to mentors, lack of role models, and lack of 
recognition. Stereotyping, even for ostensibly positive traits, 
such as hard work and quiet diligence, has often disadvantaged 
APA attorneys, who may be passed over for high-profile 
assignments because of misguided perceptions that they are too 
passive to be effective in a litigation or a courtroom setting.
    Within the APA legal community, there are identifiable gaps 
in the judicial pipeline. For example, APA law students are 
well-represented in top-tier law schools, yet they do not 
obtain judicial clerkships in comparable numbers. APA lawyers 
are significantly underrepresented in law firm partnership 
ranks, and APA lawyers are underrepresented in public-sector 
leadership.
    Traditional pathways to the bench, including clerkships and 
law firm partnerships, often involve highly subjective criteria 
such as likability, leadership potential, and other amorphous 
factors as to whom judges, professors, and partners regard as 
their proteges.
    If I may, I would like to share a personal story about why 
representation really matters.
    When I was a midshipman at the Naval Academy and even after 
receiving my commission, the lack of diversity in the officer 
corps really struck me. My career had been driven by an abiding 
love of this country, as the son of immigrants, and a strong 
sense of duty and a deep pride in the Navy. There were times 
during my career when I wondered, does this Navy reflect who I 
am as an American?
    Well, I can tell you that, when I was assigned to my very 
first ship, I was one of only two officers aboard the USS Gray. 
One day, I got a knock at the door, and, when I opened it, in 
rushed a crowd of minority sailors of all different 
backgrounds. They told me how inspiring it was to see an 
officer of color aboard and, for once, for them, the Navy was 
not someone else's Navy.
    Faith and confidence in leadership was enhanced because 
these sailors saw themselves in me. That moment changed my 
perspective. It wasn't about me; it was about all those who 
aspired to be me.
    My written testimony discusses how, in a diverse nation, a 
broadly representative military with a diverse officer corps is 
more likely to uphold national values and be loyal to the 
country they serve. Put simply, diversity is not a buzzword; it 
is mission-critical. It is an imperative.
    The same goes for the legal profession. As a former Naval 
officer, I recognize in a courtroom the judge is the presiding 
officer.
    Look, judicial candidates will rise and fall on their own 
merits, as it should be. However, we can and must do more to 
cast a wider and deeper net to attract a broader pool of highly 
qualified applicants, and those applicants must have role 
models, mentors, and networks to help them succeed.
    In order for the rule of law to endure and thrive in this 
country and to prevent a loss of faith and confidence in the 
judicial system, the courts cannot be someone else's but, 
rather, must belong to all people.
    Thank you for the time, and I am happy to answer any 
questions you may have.
    [The statement of Admiral Cruz follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Admiral Cruz. Thank you 
for your military service to the nation.
    Next, we will proceed to Ms. Braceras.
    Ms. Braceras, you may begin.
    If you will unmute.

               STATEMENT OF JENNIFER C. BRACERAS

    Ms. Braceras. There we go.
    Chair Johnson, Ranking Member Issa, distinguished Members 
of the Committee, thank you for your invitation to testify. My 
name is Jennifer Braceras, and I am the Director of Independent 
Women's Law Center, a former commissioner on the U.S. 
Commission on Civil Rights, and a member of the Hispanic 
National Bar Association.
    A judiciary that reflects the vibrant tapestry of America 
enhances the legitimacy of our system and gives Americans 
confidence that justice is impartial and that our courts are 
accessible to all.
    It is undeniable that the historic appointments to the 
Supreme Court of Sonia Sotomayor, Sandra Day O'Connor, Antonin 
Scalia, Thurgood Marshall, and Louis Brandeis had special 
meaning for Americans in certain communities.
    Even at the lower court level, the confirmation of a judge 
from a particular background is often a source of great pride 
for the community.
    Politics, whether partisan or ethnic, will always influence 
judicial nominations to some degree. Our Constitution 
anticipates this by allowing politicians to pick judges of 
their choosing from constituencies of their choosing.
    Neither politics nor diversity should ever be the primary 
factor in selecting judges who serve for life. The primary 
factor in selecting a judge should not be race or ethnicity or 
sex or even an elite educational pedigree but, rather, judicial 
philosophy.
    The best judges are those who understand that their role is 
not to correct the world's ills but to resolve specific 
disputes according to the law. Good judges Act with humility 
and with restraint, tethering their rulings to the law's 
original meaning, not the political winds of the moment.
    From a qualified pool of nominees committed to originalism, 
restraint, and impartiality, politicians can of course consider 
diversity as a plus.
    So, how are we doing with respect to judicial diversity? 
Statistics never tell the whole story, but consider these. 
According to the American Bar Association, in 2020, the legal 
profession was less than five percent African American, less 
than five percent Hispanic, and less than three percent Asian 
American, and yet The Washington Post reports that the Federal 
judiciary is almost 13 percent African American, nine percent 
Hispanic, and almost five percent Asian American. Given the 
makeup of the profession and the pool of possible candidates, 
our Federal judiciary is, in fact, remarkably representative.
    It would seem that the best way to increase diversity on 
the bench is to broaden the pipeline by expanding opportunities 
to attend law school in many of the ways that Justice Marquez 
mentioned in her testimony.
    Representation matters, but diversity is often a moving 
target, one that encompasses an ever-expanding list of 
subgroups, immigrant communities, genders, and religious and 
sexual minorities, not to mention various intersectional 
combinations. Statistical parity is of course not possible, and 
it should not be our aim.
    Unfortunately, one obstacle to a more diverse Federal bench 
has been the hypocrisy, rooted in racism, that the only 
legitimate Members of an ethnic or racial group are those who 
expound a particular dogma. I am old enough to remember how, in 
2003, Democrats used the Senate filibuster to block the 
nomination to the D.C. Circuit of Miguel Estrada, one of the 
most brilliant lawyers in America and the epitome of the 
American Dream. I have also been around long enough to observe 
the 30-year campaign, by people who purport to care about 
diversity, to delegitimize Justice Clarence Thomas as 
inauthentically Black. Sadly, as these examples make clear, 
those who claim to want a more diverse Federal bench often do 
not.
    In conclusion, the goal of judicial selection is not 
proportional representation but the creation and maintenance of 
the most fair and impartial judiciary in the world. As we seek 
to diversify the legal profession and, in turn, the Federal 
bench, we must never forget that the most important 
qualifications for a judge are good judgment and commitment to 
the rule of law.
    Thank you for having me. I am happy to answer any questions 
you may have.
    [The statement of Ms. Braceras follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Ms. Braceras.
    Next, we will turn to Ms. Diaz-Yaeger.
    Ms. Diaz-Yaeger, you may begin.

                 STATEMENT OF ELIA DIAZ-YAEGER

    Ms. Diaz-Yaeger. Thank you.
    Chair Johnson, Chair Nadler, Ranking Member Issa, Ranking 
Member Jordan, and distinguished Members of the Subcommittee, 
thank you for holding this critical hearing on the importance 
of judicial diversity. I am honored to be here.
    My name is Elia Diaz-Yaeger, and I serve as President of 
the Hispanic National Bar Association, or HNBA. The HNBA is a 
nonprofit, nonpartisan, national Membership organization that 
represents the interests of more than 67,000 Hispanic legal 
professionals as well as the nearly 13 percent of law students 
enrolled in ABA-accredited law schools in the United States and 
its territories. We Act as a collective voice for issues of 
common concern to our Members and our community.
    Our organization has been working for over 50 years to 
support the recruitment, retention, and elevation of Hispanics 
in law schools, law firms, corporations, the judiciary, and 
government. The HNBA has worked vigorously to identify, vet, 
and endorse qualified individuals to fill the numerous 
vacancies in the Federal Court system.
    Since the start of the current Administration, the HNBA has 
endorsed and provided the White House and U.S. Senators with 48 
qualified candidates for Federal judicial vacancies, 47 of whom 
are Hispanic.
    Today, I will touch upon the importance of judicial 
diversity, challenges in the selection and confirmation 
process, and the path forward to increasing diversity in the 
judiciary.
    According to data from the Federal Judicial Center, only 
nine percent of active Federal judges identify as Hispanic, 
despite the fact that Hispanics are the nation's largest 
minority group, representing almost 20 percent of the U.S. 
population. Additionally, there are currently no Hispanic 
judges in 36 of 50 States.
    Research supports the value of diversity on the bench. A 
diverse bench provides for diversity of experience, 
perspectives, and backgrounds, and it creates a pipeline for 
future judges that reflect the communities they will serve. A 
diverse judiciary also helps combat complicit bias in our 
government institutions and instills public trust in our system 
of justice. Moreover, diverse backgrounds and experiences keep 
implicit bias in check.
    While identity does not predict viewpoint, studies point to 
the presence of diversity as improving outcomes, and we believe 
the same is true in the judiciary.
    Sadly, there are several challenges diverse candidates face 
when navigating the current selection and nomination process. 
Procedural and personal biases in the confirmation process 
limit opportunities for qualified Hispanics and other 
minorities seeking to serve on the Federal bench.
    Another challenge is the decentralization of the 
nominations process. The selection process consists of 100 
different U.S. Senators making their own recommendations, each 
with differing views on the value of diversity. As a result, if 
judicial diversity is not a priority in the Administration in 
power, the demographics of judicial nominees recommended by the 
Senators will tend to reflect themselves and their networks.
    However, there are proactive measures that outside 
stakeholders can take to advocate for more diverse candidates. 
For example, the national affinity bars, like the HNBA, and a 
number of other interest groups that care about the composition 
of the judiciary can vet and put forward qualified candidates 
to both the White House and Senators.
    Another challenge to diversity on the bench is bias faced 
by traditionally underrepresented individuals. A recent study 
by the ABA found that widespread gender and racial bias 
permeates the hiring, promotion, assignments, and compensation 
in the legal industry. Similarly, statistics show that those 
same biases are prevalent in the selection of judicial 
nominees.
    Even in situations where there are no personal biases at 
play, key decision-makers in the process often turn to their 
own narrow networks for judicial recommendations. As a result, 
the current judicial selection process naturally causes an 
unintentional bias that results in judicial nominees who are 
lacking in diversity.
    So, what can be done to widen the path forward to increased 
judicial diversity? The Administration's nominations to date 
are indeed a positive sign of movement toward a more diverse 
representation of Federal judges, one that actually reflects 
the communities that come before our courts. So, this progress 
is a strong example of how decision-makers can exercise power 
they have to effect change.
    Change can also be affected by key decision-makers opening 
their selection process to include stakeholders outside of 
their usual networks. Rather than relying on the same law 
schools or exclusive institutions and networks, a more 
inclusive process, one that incorporates a wider breadth of 
practice areas, law schools, experience, backgrounds, and 
expertise, will naturally lead to more diverse candidates being 
provided the opportunity to be considered. In turn, that will 
result in an increase in mentorship and pipeline growth.
    I want to thank the Subcommittee for taking time to 
consider this critical issue. Public dialogue around the lack 
of diversity in the judicial system helps raise awareness both 
about the need and the challenges in promoting diversity on the 
bench. On behalf of the HNBA, we welcome further dialogue with 
the Members of this Subcommittee in working to promote diverse 
candidates onto the Federal bench.
    Thank you, Chair Johnson and Ranking Member Issa, for 
holding this hearing today and for inviting our organization to 
speak. I look forward to answering any questions you may have.
    [The statement of Ms. Diaz-Yaeger follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Ms. Diaz-Yaeger.
    We will now proceed under the five-minute rule with 
questions. I will begin by recognizing myself for five minutes.
    Admiral Cruz and Ms. Diaz-Yaeger, I would like to discuss 
why judicial diversity matters.
    At the Subcommittee's first hearing on this topic a few 
months ago, Judge Edward Chen explained and recounted a number 
of instances where a judge drew on their own life experiences 
with their colleagues to help their colleagues to understand 
crucial elements of a case in ways that they might have missed.
    For example, Judge Chen described how Justice Ginsburg 
helped her colleagues see how a strip search might feel to a 
middle-school-age girl. Judge Henderson, the first Black judge 
on Judge Chen's court, explained to a colleague that the 
shockingly racist graffiti a plaintiff described was far more 
common than his colleague thought.
    Judge Chen explained that, quote, ``there is a cost when 
voices are missing from the room,'' end quote. Do you agree 
with that sentiment? First Admiral Cruz and then Ms. Diaz-
Yaeger.
    Admiral Cruz. Yes, Chair. Thank you for that question. I do 
believe that it is imperative that there be diversity of views, 
perspectives, and experiences. It is not only a good thing, but 
also imperative.
    The more voices you have at a table, the more perspectives, 
the more robust the discussion and debate and the challenges 
are. What this results in is more beyond-the-norm thinking, 
greater creativity, greater innovation, and, ultimately, my 
belief and my experience is better decisions and better 
results.
    So, again, that is why any organization, whether it be a 
corporation, whether it be the judiciary, diversity of views 
and perspectives and experiences is an imperative.
    Mr. Johnson of Georgia. Thank you, Admiral Cruz.
    Ms. Diaz-Yaeger?
    Ms. Diaz-Yaeger. Thank you. I would echo what A.B. Cruz 
just said. It is imperative that a broad perspective and a 
broad understanding and ability to get that information from 
others helps you understand and put things into perspective. 
The more backgrounds, the more experiences, the more different 
types of individuals that are on the bench, that can work 
together, actually helps you get a better perspective and, 
indeed, a better outcome and a better result.
    Mr. Johnson of Georgia. Thank you.
    Mr. Warner, would you like to add anything to this?
    Mr. Warner. Yeah. I really enjoyed that March 25 hearing, 
because I do think those examples that were given by the judges 
were really illustrative of how judges do all look at the Black 
letter law but bring their life experiences to the bench as 
well.
    In particular, myself, I have clerked in the Division One 
Court of Appeals in Washington State, and I will tell you, in 
that setting, working with other clerks and other law students 
to look at the facts of a case and help the judge apply them to 
the law, those conversations amongst colleagues were incredible 
in my learning experience to understanding the importance of 
diversity and viewing directly how diversity does actually 
influence judicial outcomes.
    In that way, it brought me much closer to wanting to learn 
more about the bench and bring other students of color like 
myself behind the curtain of the bench, where we often don't 
immediately get access. I think that was an important lesson 
for me, young in my career, and one that we try to replicate 
for others here in the Western District.
    Mr. Johnson of Georgia. Thank you.
    Mr. Warner, at the start of this year, President Biden's 
White House Counsel wrote a letter to Senators explaining the 
Administration's focus on nominating judges who, quote, 
``reflect the best of America and who look like America,'' end 
quote, including, quote, ``individuals whose legal experiences 
have been historically underrepresented on the Federal bench, 
including those who are public defenders, civil rights and 
legal aid attorneys, and those who represent Americans in every 
walk of life,'' end quote.
    What impact has that letter had on promoting judicial 
diversity?
    I would like for Admiral Cruz and Ms. Diaz-Yaeger to also 
respond. If you could do so very quickly.
    Mr. Warner. Yes. In my opening comments, I did mention 
that, at our Committee's first hearing, we read and referenced 
White House Counsel Remus's letter at that time and spoke 
directly to the Senators about it. The intent of doing that at 
the opening meeting was to really coalesce our Committee 
Members around the task that we had at hand, and that was, very 
clearly, to look for diverse legal experience.
    Public defenders, civil rights attorneys, and youth legal 
aid attorneys ended up being in our group of applicants, and 
that was a part of our recruiting efforts. Then, ultimately, as 
you see in our nominees, we have those diverse legal 
experiences represented, and hopefully we will see them on the 
bench here soon.
    Admiral Cruz. Yes, Mr. Chair, I will quickly respond. We at 
NAPABA see diversity as a term and a concept, really broadly 
defined--not just race and ethnicity but also gender, sexual 
orientation, veteran status, disability, and, as Mr. Warner 
just mentioned, professional diversity--law school diversity, 
public defenders, legal aid attorneys, government, and 
nongovernment attorneys as well.
    Ms. Diaz-Yaeger. Thank you, Mr. Chair.
    So, I would echo what Mr. Warner and Mr. Cruz said, but, 
more importantly, these nominations show the community that the 
widening of the net is occurring. That means that individuals 
can come forward that are definitely qualified to be on the 
bench. They are actually being invited and welcomed to the 
table for consideration.
    Mr. Johnson of Georgia. Thank you.
    I have exceeded my time.
    Next, we will have questions from the gentleman from Ohio, 
Mr. Chabot.
    Mr. Chabot?
    Mr. Chabot. Thank you, Mr. Chair.
    I am a lawyer by training and spent nearly two decades 
practicing law back here in my congressional district in the 
greater Cincinnati area. Since getting elected to Congress, I 
have served on this Committee now for 25 years. I have served 
as the Chair for six years of the Constitution Subcommittee, 
and my Ranking Member was none other than the current Chair, 
Mr. Nadler, for six years.
    In my career, I have come across a lot of judges in 
courtrooms as well as in judicial hearings that we have had 
over those decades, and I found the vast majority of the judges 
that I have come into contact with well-qualified and able to 
fairly adjudicate cases based on the Constitution, based on the 
laws that we pass in Congress at the Federal level, and based 
upon the laws that the various State legislatures pass at the 
State level.
    Today's hearing is the second part in a series of hearings 
which seem to suggest that, for many of my Democratic 
colleagues, that the most important determining factors in 
judicial selection ought to be race or gender or both.
    While it is important to have a diverse Federal judiciary, 
I would argue that the most important factor is selecting and 
confirming nominees--whether it is a candidate or whatever--
that they are qualified, highly qualified, and that they are 
impartial in their legal decisions.
    During his Administration, President Trump nominated dozens 
of qualified and diverse judicial candidates who were, time and 
again, opposed by virtually every Senate Democrat and likely 
some here on our Committee, even though we don't actually get a 
vote, not because they were unqualified, but that their legal 
ideology did not align with the Democrats' political views.
    Take, for example, Justice Amy Coney Barrett. She was rated 
``well-qualified'' by the American Bar Association and, despite 
her academic and professional achievements, received zero votes 
from Democrats during her confirmation process.
    Or take Judge Neomi Rao. She also received a ``well-
qualified'' rating from the ABA. Despite receiving similar 
academic and professional accolades as Justice Barrett, she 
also didn't receive a single vote from Senate Democrats. Today, 
she is the first Asian-Pacific American woman to sit on the 
D.C. Circuit Court of Appeals.
    In March, we saw two of our Senate colleagues, Senators 
Hirono and Duckworth, saying that they would oppose all 
nonminority or non-LGBTQ appointees that Biden would appoint. 
It goes on and on.
    Many of my Democratic colleagues seem to want to make 
everything about race, unfortunately. They get to control 
everything, what these hearings are. They get to decide what we 
talk about, et cetera. I would like to see maybe a hearing on 
the lack of conservative political--or conservative professors 
at the college level, perhaps, or on city councils across the 
city. Very few conservatives there. Or among the media, for 
example, reporters nowadays.
    Let me ask a couple questions here.
    Ms. Braceras, there are many examples, like Justice Amy 
Coney Barrett and Neomi Rao and others, whom the Democrats have 
time and again opposed, not because they are not qualified but 
because they don't share the same political views. Could you 
comment on that, Ms. Braceras?
    Ms. Braceras. Sure. In fact, sometimes I think that 
conservative minorities are the most discriminated group of 
nominees, in fact, it is precisely because of their minority 
status, their intersectional status, if you will, being both 
conservative and minority, that the left deems them so 
dangerous.
    We saw this for a fact when Senator Durbin's memo was 
leaked back in the early 2000s indicating that Miguel Estrada--
the Democrats viewed Miguel Estrada as being this precisely 
because, quote, ``he is Latino,'' unquote.
    So, I think that, when we talk about diversity, 
representation is important, it is important on the Federal 
bench, so that the American public has confidence that 
everybody has access and that judges are impartial and that we 
all have access to justice. When we talk about diversity, we 
have to include all Members of racial and ethnic groups, not 
just the ones who expound particular dogma.
    You mentioned Judge Neomi Rao, another good example. We see 
it time and time again, that judges who are originalists or 
nominees who are originalists, who want to apply the law 
neutrally, without an agenda, they are not accepted by the 
Democrats, even though they represent diverse communities and 
are oftentimes, as you noted, the first member of that 
community to serve on a particular court.
    Mr. Chabot. Thank you very much.
    My time has expired, Mr. Chair.
    Mr. Johnson of Georgia. Thank you.
    We will now turn to the Chair of the Full Committee, Mr. 
Nadler
--who I do not see on the screen.
    With that, we will now go to the gentleman from Florida, 
Mr. Deutch, for five minutes.
    Mr. Deutch. Thanks, Mr. Chair. Thanks for calling this 
important hearing.
    Judges on the bench, it is clear, should look like our 
communities. They should reflect our communities. They 
shouldn't all--as we have heard today, they shouldn't all be 
from one or two law schools, shouldn't all be predominantly 
White males or former prosecutors or from big law firms. 
Diversity on the Federal judicial bench helps restore 
legitimacy to the Federal Courts that hear and resolve issues 
that impact everyday Americans.
    So, in December of 2020, the incoming Biden Administration 
expressed an intent to nominate people to the Federal bench who 
reflect the best of America and look like America and expressed 
a desire to appoint people to open Federal District Court 
judicial seats that have been historically underrepresented on 
the Federal bench, including public defenders, civil rights, 
and legal aid attorneys, and those who represent Americans in 
every walk of life.
    To assist in outreach and evaluating nominees for the 
Federal bench, my State of Florida has created three Federal 
judicial nominating commissions--one for the north, central, 
and southern part of the State--that are composed of appointees 
with diverse legal, educational, ethnic, religious, and racial 
backgrounds. The commissions reflect the diversity of 
population that makes our State of Florida so unique.
    I would like to ask Mr. Warner about this issue 
specifically and procedures, processes that could be put in 
place to help ensure a diverse pool of nominations and whether 
your Committee addressed effective outreach to find qualified 
people for judicial vacancies.
    If you could speak to that, and then I have a follow-up for 
you.
    Mr. Warner. Thank you, Representative.
    Yeah. This year, we actually changed the composition of the 
Committee from 6-10 Members, and I think that expansion gave us 
additional opportunities to find more professional diversity 
and put that professional diversity onto the Committee.
    I will also say that the discussion after the recruitment 
process was made much richer by that diversity of legal 
experience. We had folks on our Committee with Tribal law 
expertise, which we had lacked previously. When vetting 
judicial candidates, be it judicial judges on a Federal bench, 
it is helpful to have folks in the room that do have that 
Native law expertise to be those evaluators.
    The diversity of the Committee also created efficiencies in 
recruiting. When you want to reach out to minority bar 
associations and you look around your Committee and you have 
several former presidents and current Members on important 
Committees within these affinity and minority bar associations, 
you have created incredible efficiencies, because you can know 
that your judicial vacancy announcement isn't just going to be 
placed in the agenda; it will have someone show up to the 
Committee that can speak directly to the Committee and talk to 
its Membership about the importance that they have their 
qualified Members apply.
    So, I will wrap up by saying I do think we created some 
real efficiencies and improved our Committee this year by 
expanding the Membership.
    Mr. Deutch. Thanks.
    In the first hearing that the Subcommittee held on the 
importance of diversity in the judicial system, we discussed 
about the need to have a diverse judiciary and how critical 
that is to maintaining public trust.
    The public trust in the judiciary would also seem to extend 
to how nominees with diverse backgrounds are treated during the 
confirmation process. The Ranking Member on the Senate 
Judiciary Committee has recently expressed a need to scrutinize 
public defenders who are being nominated to the Federal bench 
based on the perception that they could rule in a certain way.
    So, Mr. Warner, let me just finish with you. Again, how 
does extra scrutiny or the call for extra scrutiny of nominees, 
particularly nominees who are not the traditional type of 
nominees to the Federal bench, what does that do to impact the 
public's perception of the bench?
    Mr. Warner. Well, Representative, I think you hit the nail 
on the head when you used the word ``traditional'' just now. I 
think as we see more civil rights litigators, more civil legal 
aid attorneys go through this process, you get that confidence 
in representation that you have seen someone before you get 
through the process. We can't promise that you are going to 
make it all the way through, but the idea that you have seen 
someone like you with your legal background go through it and 
some will achieve, that confidence really does then engender 
more applications from people who may choose that legal route.
    The same is true for law students. There are law students 
out there that may begin their careers as public defenders and 
now immediately think they can no longer be a Federal judge. As 
we progress in this task, I am hopeful that that perception 
decreases, and we get more of those applicants.
    Mr. Deutch. As am I, Mr. Warner.
    Chair Johnson, thank you again for holding this hearing 
today. I yield back.
    Mr. Johnson of Georgia. Thank you.
    We will next proceed to the gentleman from Ohio, Mr. 
Jordan, the Ranking Member of the Full Committee, for five 
minutes.
    Mr. Jordan? Your haircut makes you look a lot younger today 
too.
    Mr. Jordan. Yeah. Thank you, Mr. Chair. I don't know about 
that. I am feeling pretty old here. Mr. Chair, thank you for 
this hearing.
    I am going to yield to the gentleman from California, Mr. 
Issa.
    Mr. Issa. Thank you, Ranking Member Jordan.
    Thank you, Chair, for holding this hearing. I think one of 
the things that is coming out of this is, the very testimony 
helps us frame questions I might otherwise not have asked.
    I want to first ask Admiral Cruz, you mentioned that 
likability was one of the characteristics that you thought 
should not be used. Is that correct?
    Admiral Cruz. Well, it is often--in many contexts, like in 
law firms, likability does come up. I am not saying it can't be 
used, but it certainly--
    Mr. Issa. Would it surprise you that at the University of 
California and other universities in California likability has 
been deliberately put in to expand the diversity of the 
candidates--in other words, to move them up, where they 
otherwise would not be qualified based on their test scores and 
grades?
    Isn't likability, in your own words and observation, a 
great way to end up not necessarily getting the best candidate, 
unless likability is somehow essential? I certainly would say, 
if I wanted a salesman, I probably would like likability. I 
don't know that Admiral Halsey was famous for being 
particularly likable, in my reading.
    Admiral Cruz. Yeah, Ranking Member Issa, I was talking 
about or referring to a particular context, just as you just 
did. Certainly, in the context of law firm hierarchy and 
fitting in, the more senior partners can often gravitate to 
people who are more like them. That was the context in which 
I--
    Mr. Issa. Yeah. No. I appreciate it. I just wanted to make 
sure we touched on that.
    Ms. Braceras, I want to go back to something you said. You 
gave us some startling statistics, basically looking at Members 
of the bar of the three major identified minorities--African 
American, Hispanic, and the like. Basically, they are each at 
about five percent, while their population would be larger than 
that, but certainly 13 and nine percent for African American 
and Hispanic.
    Would you say that, if we were to use the lower figure, we 
would, by definition, have to reach to candidates, to the 
detriment of candidates that might be more qualified based on 
an analytical statement?
    Ms. Braceras. Well, the number-one qualification for being 
a Federal judge is that you have attended law school. So, if 
you haven't attended law school, you are not going to be 
picked. The problem is that, as Justice Marquez noted in her 
testimony, we need to do a better job of making law school 
accessible to diverse communities.
    Now, particularly when you are talking about immigrant 
communities or working-class communities or communities from 
lower socioeconomic brackets, cost comes into play. You also 
have, related to that, the fact that the salary of a Federal 
judge is in no way reflective of what people can make in law 
firms or in other aspects of the legal profession, even in some 
public-interest areas of the legal profession.
    So, what we have found, actually, in Massachusetts is that 
it is very hard to recruit from candidates from diverse 
backgrounds who are concerned about finances because they don't 
want to leave lucrative professions to take a pay cut to join 
the Federal bench.
    So, even some diverse candidates that may be qualified 
along every axis--judicial philosophy professional backgrounds, 
all the above--may not be willing to leave their current 
professions to take a job on the court.
    So, it is not just that we have to increase the pipeline to 
law school; it is that we have to make Federal judicial service 
attractive to those who weren't born wealthy.
    Mr. Issa. Yeah. Well, I will take some pride in the fact 
that some years ago we de-linked Congress's $174,000 salary so 
that judges have continued to rise while Members of Congress 
have held their own salary in check.
    One closing question. Does anyone dispute here that, at the 
District Court level, at the end of the day, you have exactly 
one judge judging your case, and, as a result, there is no 
diversity at the table when you are before that one Federal 
judge who runs his or her courtroom as he or she sees fit?
    Ms. Braceras. Yes, that is correct. As Judge Myers so aptly 
pointed out, judges wear Black robes, and they wear them for a 
reason. They wear them to indicate that, regardless of their 
race, sex, sexual orientation, class, whatever law school they 
attended, whatever State they live in, when they put on that 
robe, they are a judge, and diversity of opinion doesn't 
matter. What matters is good judgment and impartiality and 
application of the law. That is what the Black robe represents.
    So, when a litigant comes before a judge, whether that 
judge is male, female, Black, White, the litigant should be 
confident that they are going to be treated fairly and that 
they are going to get the same results based on the law. It 
should not be that a litigant is nervous to find out, oh, they 
drew Judge So-and-So because that judge has a particular 
agenda--left, right, or otherwise. The judge only has one 
agenda, and that is the law.
    Mr. Issa. Thank you.
    I yield back.
    Mr. Johnson of Georgia. Thank you.
    We will now turn to the gentleman from New York, Mr. 
Jeffries, for five minutes.
    Mr. Jeffries. Thank you so much, Chair Johnson, for 
continuing to convene hearings on this incredibly important 
subject.
    Ms. Diaz-Yaeger, am I correct that approximately 30 percent 
of the Federal judiciary constitutes judges who were nominated 
by former President Trump?
    Ms. Diaz-Yaeger. I don't have those exact numbers in front 
of me. As the HNBA is nonpartisan, we applaud any diverse 
individuals that are promoted by any party. We endorse 
individuals based on their qualifications and not based on 
their party affiliation.
    Mr. Jeffries. Right. I didn't ask about the party, but 
specifically just asking about the nominee, in terms of who 
placed that nomination into motion.
    In terms of his judicial appointments--and let me know if 
you don't know this statistic--but approximately 90 percent of, 
I believe, former President Trump's nominations were White. Is 
that correct?
    Ms. Diaz-Yaeger. I believe that percentage is actually 
accurate.
    Mr. Jeffries. Am I correct that approximately 75 percent of 
former President Trump's nominations to the Federal bench were 
male?
    Ms. Diaz-Yaeger. I believe that is an accurate 
representation as well.
    Mr. Jeffries. It is my understanding that he nominated 
approximately 54 Circuit Court judges who were confirmed and 
that not a single one of the judges appointed during his 
Presidency to the Circuit Court were African American. Is that 
right?
    Ms. Diaz-Yaeger. That is a correct percentage.
    Mr. Jeffries. Am I correct that, of the 54 Circuit Court 
judges appointed by--or nominated by President Trump and 
ultimately confirmed, only one was a Hispanic American? Is that 
right?
    Ms. Diaz-Yaeger. I am not--I don't have that percentage in 
front of me. I believe that is, in fact, accurate.
    Mr. Jeffries. Okay.
    So, I just think that, obviously, qualifications are 
paramount in terms of one's capacity to be able to evaluate the 
cases that come before an Article III Federal Court. I was 
proud, myself, to have an opportunity to clerk for a Federal 
District Court judge in the Southern District of New York, as 
was the case, I believe, with many of my colleagues. It does 
seem that, in addition to professional qualifications, which 
certainly extend beyond the law school that one went to and/or 
the professional experiences that one had beyond the so-called 
White-shoe law firm or a Federal prosecutor's office, that this 
is a country that was founded, anchored, in part, in the 
principle of e pluribus unum--out of many, one.
    So, the Federal bench should seemingly reflect the ``many'' 
the Framers of the Constitution thought was important to the 
country in the broadest possible way--race, religion, gender, 
sexual orientation, region, yes, ideology, and also life 
experiences.
    So, Mr. Warner, you testified that people spending a 
majority of their career in private practice or as Federal 
prosecutors compromise approximately 70 percent of active 
Federal appeals court judges. Is that right?
    Mr. Warner. That is right, Representative Jeffries.
    Mr. Jeffries. How does this lack of professional diversity 
impact the court and the justice that the American people can 
expect to receive?
    Mr. Warner. Well, I think the skill sets on any bench that 
we look at should be considered as we make additional 
appointments. As we look at any given bench, if the bench is 
entirely full of former U.S. assistant attorneys and we have no 
immigration law experts, no defenders, no Federal defenders, 
and no others with divergent legal expertise, I think it is 
fair for the public to worry that we may be missing other areas 
of broad legal expertise that we need on our Federal benches.
    So, I think it is within these Committees' purview to 
really focus on recruiting those types of legal expertise that 
might be missing on their particular bench to continue to 
engender trust in the community.
    Mr. Jeffries. Yeah. Thank you.
    I think a Congress that is diverse, broadly speaking, is 
consistent with what we are supposed to be, as the house 
closest to the American people. You want to reflect that 
diversity in every possible way. It seems to me that the 
Article III Federal bench should reflect that broadest possible 
diversity as well.
    Thank you, Chair Johnson, for convening this hearing.
    Thank you to all the Witnesses and the judges who serve 
this country well.
    Mr. Johnson of Georgia. Thank you, sir.
    Next, we will go to my friend, the distinguished gentleman 
from Texas, former judge, Judge Gohmert.
    Five minutes, sir.
    Mr. Gohmert. Thank you very much, Mr. Chair. I appreciate 
that.
    I see that we still have Judge Myers. Is he open to being 
questioned?
    Mr. Johnson of Georgia. Well, our first panelists are not 
questioned today.
    Mr. Gohmert. Ah. Okay.
    Well, Judge Myers, thanks for your availability.
    Ms. Braceras, we heard earlier about what it means to walk 
into a court and identify by race with the judge, the people 
involved in the court. My experience in Federal Court was a 
great deal different. It depended on the client, and we were 
much more concerned with the political leanings and the beliefs 
of the judge as to how the client was going to be treated.
    If you were going into court, would you be more concerned 
that you were going before a very activist judge who is known 
for legislating from the bench, who didn't care for your 
political positions, or someone that actually, regardless of 
race, creed, color, gender, or any of those things, actually 
was open-minded that you could see from prior rulings? What 
would your thought be as you go into that courtroom?
    Mr. Johnson of Georgia. Ms. Braceras, you may unmute.
    Ms. Braceras. Yep. Got it. Sorry.
    Mr. Johnson of Georgia. Okay.
    Ms. Braceras. Thank you for your question.
    My hope would be that whatever judge I was before, 
regardless of who appointed that judge, regardless of that 
judge's political views, and regardless of that judge's 
personal background, would give my client a fair hearing. That 
is the way the system is supposed to work, and, theoretically, 
there should never be an issue.
    My concern, in this day and age, would be more that the 
judge was politically motivated or had a political bias. The 
truth is, it doesn't really matter whether there is political 
balance on our courts if judges are doing what they are 
supposed to do, which is leaving that political and personal 
bias at the door when they put on their robes and coming to the 
bench as neutral arbiters of the law.
    So, balance isn't really the issue when it comes to 
politics. The issue is judicial philosophy. Only when we 
appoint judges who understand that their role is not to solve 
social problems but to resolve disputes pursuant to the law, 
only then can we be sure that our clients are getting a fair 
hearing.
    Mr. Gohmert. Yeah. Well--and having heard Judge Clarence 
Thomas, Justice Thomas, brought up earlier, I couldn't agree 
with you more. I remember Miguel Estrada. They left that 
incredible luminary out there just hanging, left his life in 
limbo, month after month after month, and his treatment was so 
outrageous. I am sure you recall Clarence Thomas stating that 
he was the wrong Black man. His race really made him more 
susceptible to being attacked.
    I was glad to hear earlier the comment that we have too 
many judges from Yale and Harvard. There are outstanding law 
schools all over this country, some more so in certain fields 
than others. I have been shocked at just how few Supreme Court 
justices are considered that went to some other law school, no 
matter how brilliant. I would love to see more diversity in 
that area.
    Would you comment about that?
    Ms. Braceras. Sure. Well, as a graduate of Harvard Law 
School, I can't say I think there are too many of us out there, 
but I agree with your basic premise that elite educational 
pedigree is not necessarily the best determinant of what would 
make a good judge.
    I was thrilled to see Justice Barrett bring that type of 
diversity to the Court. Notre Dame is of course still a very 
prestigious law school, but it is not up with the ranks of 
Harvard or Yale in terms of the number of judges that we have 
from those schools. So, I was pleased to see her bring that 
diversity.
    I think she is a perfect example of how, really, you can 
find competent, brilliant judges from any law school in the 
country. So, the test shouldn't necessarily be, did you go to 
Harvard or Yale? The test should be, are you impartial? Do you 
have the integrity? Do you have the professional experience 
after graduating from law school? Frankly, do you have a sound 
judicial philosophy that will tether your rulings to the text 
of the Constitution and the text of the statutes passed by 
Congress?
    Mr. Gohmert. Thank you.
    My time has expired. Thank you, Mr. Chair.
    Thank you to the Witnesses.
    Mr. Johnson of Georgia. Thank you, sir.
    We will now hear from the distinguished gentleman from 
Arizona, Mr. Stanton, for five minutes.
    Mr. Stanton. All right. Thank you very much, Chair Johnson. 
What an outstanding hearing thus far. Very educational, 
informative, and will affect our public policy moving forward.
    Thank you to the Witnesses for being here today.
    In my home State of Arizona, we are lucky; we have 22 
Federally recognized Native-American Tribes. We are so proud 
that the first Native-American woman ever appointed to the 
Federal judiciary, Judge Diane Humetewa, serves on the Federal 
District Court here in Arizona.
    That leads me to my first question. I am going to direct it 
to Mr. Warner.
    President Biden recently named Lauren King for a seat on 
the U.S. District Court for the Western District of Washington. 
If confirmed, Ms. King will become the third Native American 
currently sitting on the Federal bench. In fact, Ms. King will 
become only the fifth Native American ever to serve as a 
Federal judge.
    I am really interested in that commission that you 
discussed earlier. I wanted to find out, as your commission 
worked to recommend candidates for judgeships, how did you 
account for such a historic lack of representation from the 
Native-American community, and how did you focus on remedying 
that issue?
    Mr. Warner. Thank you, Representative Stanton. I will note 
that Washington has 29 federally recognized Tribes, and still, 
still, no Native-American Federal judge just yet.
    So, how did the Committee approach that work? Well, we 
first focused on, again, the professional experience that was 
needed and lacking directly in our bench, to have someone with 
real Native law expertise.
    I will also say that there were only a few folks in the 
pool of applicants with that expertise. That also spoke to us 
in terms of our Committee needing to do a better job going 
forward in reaching out to Native law experts to be clear with 
them that our bench needs them, that the White House is 
interested in their application, and that they have an 
opportunity, should they apply to actually move through the 
process. So, that is what we set out to do.
    We looked in our applicant pool for folks with deep 
experience of Native law. Of course, Lauren King rose quickly 
to the top because of her professional background and 
experience, which also lends to us possibly having the first 
Native-American Article III Judge in Washington.
    Mr. Stanton. That is great.
    My home State of Arizona is part of the Ninth Circuit. 
Currently, there is only one openly gay member of the bench in 
the Ninth Circuit.
    So, I want to hear from Admiral Cruz and Ms. Diaz-Yaeger on 
this one.
    Lack of diversity in the Federal judiciary hurts our 
justice system. How do we go about making a plan to address 
such vast disparities in making up our Federal bench?
    Ms. Diaz-Yaeger. I am happy to address that first, 
Congressman.
    So how do we do that? What we do is we expand our networks. 
We rely on affinity bar organizations, such as the HNBA. So, by 
expanding that network, you also expand, inherently, the 
pipeline. That pipeline then will help, as we move forward, 
grow the number of diverse candidates that are considered and 
go to the Committee, make it possibly through the Committee for 
selection.
    So, I think that you have to work on a level starting from 
law school, letting them know this is a possibility, work on 
their pipeline, make sure that the Committee Members work with 
affinity bar organizations. Almost all the affinity bar 
organizations have vigorous vetting requirements, and we have 
boots on the ground. So, we know the individuals in that State, 
we know the qualifications, and we are more than happy to 
assist in providing qualified candidates to move forward.
    Mr. Stanton. Admiral Cruz?
    Admiral Cruz. Yeah, Congressman, I would add that, to fill 
the pipeline that Ms. Diaz-Yaeger referred to all those 
involved, all concerned involved in the identification, the 
attraction, the vetting of judicial candidates, really need to 
optimize their processes and intake, perhaps quite drastically. 
I am glad that Mr. Warner has highlighted a model that has 
worked in his venue. Bottom line, those involved need to go 
wider, go deeper. They need to beat the bushes.
    We at NAPABA are very active, capitalizing on our 90 
affiliates to--and we are very active in certainly those areas 
where there are vacancies. We are making sure that we address 
the issues of oblivion around career possibilities, the lack of 
mentors that I mentioned earlier, role models, and, frankly, 
the lack of leadership development.
    Mr. Stanton. All right.
    My final question is, what can we as Members of Congress do 
to support your efforts to identify and encourage diverse legal 
professionals from our districts and communities to join the 
judge candidate pool?
    That is either for Mr. Warner, Admiral Cruz, or Ms. Diaz-
Yaeger.
    Mr. Warner. Representative Stanton, I will start by saying, 
I think appointing diverse commissions is really the key to 
some of the success that we have had in the Western District of 
Washington.
    In my last answer about Lauren King, I should have 
mentioned that one of the reasons we had the ability to 
evaluate Tribal law expertise is because we had a Tribal law 
expert, Rion Ramirez, who represents one of our local Tribes, 
on the Committee. So, we had that level of expertise to truly 
say this person or that person will have an ability to bring 
value to the bench from a professional and diversity standpoint 
that we need.
    Admiral Cruz. If you had to add one more thing to a 
wishlist, If you could influence folks in the other chamber, 
the Senators, to broaden out their identification and search 
process for candidates, utilizing the resources such as the 
HNBA, such as NAPABA, such as the NBA and all the other 
affinity bars, I think it would inure to the benefit of the 
entire process.
    Ms. Diaz-Yaeger. I would add to that that if the Members of 
Congress actually expand their networks, expand the individuals 
that they hire to work in their offices for those experiences, 
then you are leading by example. By leading by example, you can 
then encourage people within your networks to also do the same, 
and that would also help increase the pipeline and the networks 
and the mentoring.
    Mr. Stanton. Thank you much.
    I yield back.
    Mr. Johnson of Georgia. Thank you.
    We will now turn to the gentleman from Louisiana, Mr. 
Johnson, a distinguished lawyer, for five minutes.
    Mr. Johnson of Louisiana. Thank you, Mr. Chair. I 
appreciate that.
    This is an important hearing. This Subcommittee, as you 
noted earlier, is having its second hearing about the 
importance of a diverse Federal judiciary.
    As Ms. Braceras said so well a few months ago, the Black 
robe of all judges holds important symbolism. Regardless of a 
judge's immutable characteristics or philosophy, we all believe 
and our system counts upon them to be fair and impartial and 
objective.
    The other symbol of our profession is Lady Justice, of 
course. The symbol--she wears a blindfold to show the 
importance of the application of law without corruption or 
favor or greed or prejudice at all.
    So, hopefully all of us would aspire to appoint judges to 
the bench that--it doesn't really matter what their background 
is, as long as they are fair and impartial in the application 
of the law. That is the idea.
    As we all know, sadly, a lot of is that being jeopardized 
by politics today. That is the unfortunate situation we find 
ourselves in, is that more and more of the American people are 
losing faith in the institution of our system of justice. That 
is of grave concern to all of us.
    I was a Federal Court litigator for two decades prior to my 
election to Congress. Some of my former colleagues at the bar 
believe, as do many Americans, that leading Democrats on 
Capitol Hill, for example--not all, but some--have used the 
cause of diversity to politicize the judicial selection and 
confirmation process.
    I want to echo what has been touched upon previously here 
today, that some Democrats have repeatedly opposed women and 
minority nominees to the bench just because they were chosen by 
Republican Presidents. It is a vicious and personal opposition 
sometimes. We have mentioned today, Justice Clarence Thomas. 
Ever since his nomination to the Supreme Court, he has been 
unfairly targeted and maligned in so many ways.
    Senate Democrats later filibustered President George W. 
Bush's nomination of Miguel Estrada to the D.C. Circuit Court. 
We have talked about that. Ms. Braceras mentioned today the 
leaked memo by Senator Durbin, who stated that Mr. Estrada was, 
quote, ``especially dangerous because he is Latino,'' unquote.
    More recently, Democrats opposed President Trump's diverse 
judicial nominees. Supreme Court Justice Amy Coney Barrett, 
only the fifth woman to serve on the nation's highest court, 
received exactly zero Democrat votes, as was mentioned today, 
during her confirmation, even though she was rated ``well-
qualified'' by the ABA and has impeccable character and 
credentials. During her earlier confirmation to the Seventh 
Circuit, we all remember Senate Judiciary Committee Ranking 
Member Dianne Feinstein outrageously maligned her Catholic 
faith by pronouncing to Justice Barrett that ``the dogma lives 
loudly within you.'' So much for the ban on a religious test.
    I just have a couple moments. I want to ask Ms. Braceras, 
what do you make about the Democrats' consistent opposition to 
diverse nominees selected by Republican Presidents? You have 
elaborated a little bit on that this morning, but I wondered if 
there was anything more you wanted to add on that.
    Ms. Braceras. Well, we can't both say that we want to 
increase the diversity of the Federal bench, and then reject 
nominees that would do that. If diversity truly is a paramount 
concern, then we need to accept it in all its forms.
    Mr. Johnson of Louisiana. Can you think of any other recent 
examples where some Democrats, let's say in the U.S. Senate, 
resisted an unfairly maligned, a diverse judicial nominee that 
President Trump nominated?
    Ms. Braceras. Sure. Well, we talked about judge Neomi Rao a 
few moments ago. She is one of the first ones that come to 
mind, particularly because, like Miguel Estrada, her 
qualifications were so impeccable. She would have brought--and 
did bring--diversity to the court in which she was appointed 
to. It was an historic nomination.
    It is sad to me to see that people who purport to want to 
diversify the Federal bench only want to do so when those 
diverse nominees come from their party. It would be nice to see 
them support them across the aisle.
    Let me take a moment to say that I know that the Hispanic 
National Bar Association has been particularly good. I am not 
quite so sure about recent years, but I know that, overall, 
their track record of supporting nominees across the aisle has 
been pretty good, and I am proud of that.
    That is not necessarily true for the politicians who are 
voting on these nominees.
    Mr. Johnson of Louisiana. I have only got 20 seconds left. 
I will just say, I am going to state the obvious, that I think 
all Members of this Committee should aspire to getting us back 
to the point where we nominate people on their merit, and not 
necessarily on all these other things, and their politics and 
everything else.
    I don't know how we put that genie back in the bottle, but 
I hope one day we can so that we can restore the American 
people's faith in our institutions.
    I am out of time and I yield back. Thank you, Mr. Chair.
    Mr. Johnson of Georgia. The gentleman yields back. We will 
now hear from the extremely distinguished gentlewoman from 
North Carolina, Representative Ross, for five minutes.
    Ms. Ross. Thank you very much, Mr. Chair, and it is North 
Carolina Day in this Committee. Welcome, Judge Myers, it is 
great to see you, and, of course, we have got somebody from 
Duke who I will be asking a question of in a few minutes.
    So, I practiced in North Carolina. Representative Bishop 
and I talk about this quite a lot. We graduated in the same law 
school class, and, so, you have got a Democrat and a Republican 
from North Carolina sitting on this Judiciary Committee. I will 
say President Biden just signed into law a bill that we got 
through this Committee, so bipartisan work can be done.
    I have seen how partisan these kinds of appointments can be 
and, of course, Judge Myers knows about how long it took to 
fill his particular position because of the differences between 
an Administration and our Senators.
    Before judge Myers was appointed, there were two African 
American women who were rated as very well-qualified who simply 
were rejected by our Senators, one of whom had been elected 
statewide twice. So, we need to get past this partisanship, and 
focus on qualifications while we focus on diversifying the 
bench.
    I have practiced in the corporate arena, and I have 
practiced before administrative agencies, and I have been a 
civil rights attorney. I can tell you that the more diverse the 
perspectives and the backgrounds that we bring to any 
collective body that is making a decision, the better decisions 
we are going to get, because we cannot simply just have an echo 
chamber of people who see things one way.
    Our judiciary, as our legislature, and our Congress, need 
to reflect the people they serve, and need to have the lived 
experiences of the people that they serve. So, I appreciate all 
these comments that we are getting here.
    I will share one anecdote before I ask my questions. I was 
the youngest woman in the North Carolina legislature when I 
first got elected, and the Speaker asked me about appointing 
people to some of these Committees, and I gave him a number of 
names of highly qualified people. He said, ``Where have these 
people been?'' I said to him, ``Mr. Speaker, where have you 
been?'' That leads to this next question for Mr. Warner.
    So, in North Carolina, when we have gone about appointing 
judges, occasionally there will be these ad hoc commissions 
where we will try to get different people's input, but there 
isn't a more formal process like you have.
    Could you tell us how we can replicate this around the 
country and get more input from a variety of people, so that it 
is not just left up to political whim.
    Mr. Warner. Thank you for the question, Representative 
Ross. I will start by saying that the Co-Chairs of the current 
Committee would love to help and answer your questions, but I 
am also sure that Senators Murray and Cantwell's offices would 
also be happy to work with all of you to replicate the 
processes that we have continued to iterate on in the Western 
District of Washington.
    I will say that it is really a conversation with the 
Senators' offices to understand the needs of the Senators' 
offices, along with the White House, every time that we have a 
vacancy. Then we get together and look at our last Committee to 
decide whether we need to add additional Members to really 
reach out into our community to make sure that we are finding 
those people that were already there.
    We just need to look a little bit harder. So, happy to work 
with you or your staff or make this connection.
    Ms. Ross. Thank you very much. Ms. Diaz-Yaeger, given that 
many judges look to clerks to--well, we look to see if they 
have had clerkships. How do we diversify those clerkships? How 
do we get more people in that pipeline?
    Ms. Diaz-Yaeger. Well, there are several methods to get 
more people into that pipeline. The first method is to 
encourage those judges to look outside their own networks and 
to look at different schools and to consider different 
individuals based on their experience, not just based on which 
school they went to.
    The other way is to actually work at the law school level 
and let those individuals know that these opportunities do 
exist for you, and how to set your trajectory to actually be 
able to be considered for a clerkship. Many of them, because 
they don't have the network, they don't know the connections, 
they don't have family members that are lawyers or judges, they 
don't understand the process. They don't know that it is 
actually something that can happen to them.
    If you ask all the women in law school, and you ask 
somebody about the clerkships, their usual response is going to 
be something along the lines of, it is who you know. So, we 
need to broaden that scope more.
    So, it is kind of a dual-prong approach. You are looking at 
the law schools, making sure they understand this is how you do 
it, it is available to you; and then asking the judges to 
broaden their scope, broaden their network as to who they would 
consider.
    Ms. Ross. Thank you very much. I yield back, Mr. Chair. My 
time is expired.
    Mr. Johnson of Georgia. Thank you. We will now proceed to 
the distinguished businessman from Wisconsin, Mr. Tiffany, just 
as Mr. Issa is a distinguished businessman. Mr. Tiffany?
    Mr. Tiffany. Mr. Chair, you are pouring it on this morning. 
Thank you very much.
    First, I just want to say in regard to Judge Myers, thank 
you so much for being here today, and I would like to know who 
the 21 people are that voted against you, because if we are 
seeking a diverse judiciary, they clearly cast the wrong vote.
    Admiral Cruz, over the last 30 years, have we made 
progress?
    Admiral Cruz. In judiciary?
    Mr. Tiffany. Yes.
    Admiral Cruz. Yes. Obviously, I think we have. I don't have 
the statistics in front of me, but certainly in answer to--
    Mr. Tiffany. No, I appreciate that, Admiral Cruz, thank 
you, because I think we have, too. You especially focused on 
AAPI judges, and Senator Whitehouse, a Democrat from Rhode 
Island, called her a cartoon of a fake judge. Do you think that 
is an accurate statement? Do you think it is an appropriate 
statement?
    Admiral Cruz. It is not a statement I would use.
    Mr. Tiffany. Yeah. Thank you very much, Admiral, I 
appreciate that. I would also point out that Ivy League schools 
are currently discriminating against Asian-American students, 
just for the record.
    Ms. Diaz-Yaeger, in regard to Miguel Estrada--I want to 
make sure I say this correctly--Democrat leadership back when 
he was being considered in the early 2000s, they said he was 
especially dangerous because he is Latino. I find that 
statement reprehensible. Do you?
    Ms. Diaz-Yaeger. I am not familiar with the statements that 
were made. I don't believe that statements that deal with 
personal traits are ever appropriate.
    Mr. Tiffany. Yeah. Thank you very much. Democrat 
[inaudible] that statement, and I would encourage you to take a 
look at that quote that was found. I believe it is awful.
    Ms. Braceras, have we made progress?
    Ms. Braceras. A hundred percent, we have. In fact, as the 
numbers that I submitted in my testimony suggest, minority 
groups are overrepresented in the judiciary compared to their 
population in the [inaudible]. So, we have done a great job at 
recruiting people to the bench and getting minority candidates 
on the bench.
    It is an important thing to do. We need to continue to do 
it, but the most important thing we need to do is to increase 
the pipeline and the pathway to law school.
    Mr. Tiffany. You think we are headed in the right 
direction, and we are making progress as we speak. Is that 
correct?
    Ms. Braceras. We have made progress, and we continue to 
make progress.
    Mr. Tiffany. Yeah, that sounds great. I really think, Mr. 
Chair, I get two things from this hearing. So, we hear the 
concern about diversity, but two things are coming out of this. 
We are making real progress.
    I listen to the gentleman from Washington who has very 
eloquently stated how they are making real progress. They are 
fixing what he believes is a problem out there in terms of 
recruitment, and what we are hearing today is that real 
progress is being made, and it was as a result of a Democrat 
United States Senator who did not have it right, that he has 
been able to convince her that she needs to take a different 
approach to getting diversity to the bench. So, I just think 
that there is real progress being made in that way.
    I think the second thing that has come out of this is, as 
Judge McShane said, there is a problem with where they come 
from, and no offense, I hope, delivered, Ms. Braceras, but it 
sounds like we need to get outside of the Ivy League schools 
here as far as where we are getting recruits. So, what I am 
hearing is, we are making real progress.
    It does deeply concern me, if this is an effort to do the 
same thing as this Democrat-run Congress did with the farmer 
and restaurant program, where we now have a Federal government 
that is actively discriminating against certain members of 
society, this is going to end really badly.
    Because I think about that shield that is in our room, in 
the Judiciary Room, that says E Pluribus Unum, and 
Representative Jeffries referred to that earlier. Out of many, 
one.
    We are seeing active discrimination that is going on by 
this Congress of the United States, and that is not a good 
direction to be going in. So, if diversity is a code for 
judicial activism, this is going to end badly for all 
Americans.
    It is going to end badly for all Americans, because I think 
all Americans, regardless of race, creed, or color, what they 
expect when they come into the courtroom, is, they want to have 
justice. This is one of the fundamental pillars of a free 
society, that all men are going to be created equal before the 
law. Let's make sure that is happening through this process.
    I yield back, and thank you very much for the compliment, 
Mr. Chair.
    Mr. Johnson of Georgia. Thank you, and I might add that we 
have tried hard to steer away from politics in this hearing. 
Diversity on the bench is certainly an attribute that is 
valuable. It is not to be disparaged. We can have different 
views about it, and certainly, some who may tend towards 
originalism believe that White males interpreting the 
Constitution through the eyes of a White male who existed back 
when the Constitution was written, suffices for today's 
realities, but it is scary to people who go to court and all 
they see is White males on the bench.
    Mr. Warner, since you were referred to--
    Mr. Tiffany. Mr. Johnson, if I may interrupt for just a 
second. I hope you will allow Judge Myers to make a comment in 
regard to your statement. I yield back. I will be done now.
    Mr. Johnson of Georgia. Yeah. Well, I am going to yield to 
Mr. Warner who was referred to, for his response, if he should 
have one.
    Mr. Warner. Thank you, Representative Johnson. Yes, I would 
like to be clear that Senator Murray needed no convincing in 
reconstituting our Committee to broaden the diversity of the 
group. In fact, I was a bit hesitant to extend our group all 
the way to ten members from an administrative perspective, 
because that was my role.
    I will tell you that I was wrong in that we really did 
create efficiencies with a larger ten-person committee, again 
because that committee truly knew the community and the folks 
that were hiding in plain sight with the expertise that we 
needed, had connections to the membership, and in that way, we 
are even more efficient than we have been in the past.
    I will also say that today, yes, I believe that we have 
made great progress, but it is still the case in the Western 
District of Washington that we have never had a Native American 
or Asian-American judge, and that is not progress enough, and 
so we have much more work to do. Thank you.
    Mr. Johnson of Georgia. Thank you.
    I will now proceed to the gentle lady, distinguished gentle 
lady and former lieutenant governor of the State of Minnesota 
and a lawyer, Representative Fischbach, for five minutes.
    Mrs. Fischbach. Well, thank you very much, Mr. Chair, and I 
appreciate the opportunity, and I want to thank all the 
testifiers for being with us today because I really appreciate 
just the perspective and the information.
    I do understand that one of my colleagues has a few more 
questions that he would like to follow up on, and I would like 
to yield my time to the good Congressman Issa.
    Mr. Issa. I thank the gentlelady. There is no limit to the 
amount of good questions that come out of a hearing like this, 
and I thank you for yielding.
    It is interesting, I have put about eight Members of my 
staff over 20 years through law school, and as I have watched 
them each go to law school, and then take the bar, I have been 
struck by the fact that law school doesn't teach what you need 
to know to pass the bar, and neither of them seems to teach 
what you need to know to be a practicing attorney.
    So, I am going to ask--and I will start with Ms. Braceras, 
but I think each of you could answer this: If we assume that as 
one of my favorite but unheard of songwriters wrote, Gary Hall, 
who wrote, ``Any little boy can be the President if he was born 
in the U.S.A., any little girl can, too.''
    The fact is, we know that to be President, you have got to 
be 35 and naturally born. Let me just quickly, if you are 25 
years old and graduated from law school, what is it you do not 
have that you need to acquire to be a Federal judge? I would 
like all of you to answer it in writing, but maybe we will 
start with just one oral answer.
    Ms. Braceras. Well, I would say experience, maturity, and 
judgment. The most important quality of being a judge is good 
judgment, and that is something that it sometimes takes people 
several years of practice to acquire.
    Mr. Issa. So, although we don't have a strict age, we 
generally take someone in their 40s or 50s to be Federal 
judges, so they kind of get the age and some experience.
    I am going to follow up, since you are a Harvard alum, none 
of the attributes you mentioned actually have anything to do 
with, if you will, the quality of the law school you went to or 
the prestige, correct?
    Ms. Braceras. That is absolutely correct.
    Mr. Issa. Just to follow up, because I haven't practiced 
before the Federal bar, when you are before a Federal judge, 
you have got a pretty diverse group of cases. You have got 
patent, antitrust, a host of criminal cases, obviously 
immigration at times. Is there any one person, any one lawyer 
you ever found who came to the bench with the ability and 
experience in all those areas?
    Ms. Braceras. No, of course not. In fact, I will refer to 
my own father, who is a judge on the Second Circuit Court of 
Appeals, Judge Jose Cabranes. He was appointed to the bench by 
President Carter at the age of 38, the first Puerto Rican 
appointed in the continental United States. Many people thought 
he didn't have the experience at the time. He had been a 
litigator for only a few years, and then was coming to the 
bench from being general counsel of Yale University. People 
thought he didn't have enough courtroom experience. He had 
never tried a case to completion, although he had argued many 
motions.
    I would argue, and I hope most of you would agree that he 
has turned out to be a fantastic judge, a judge that is 
respected on both sides of the aisle. So, you don't have to 
have experience in every area of the law to be a District Court 
judge. Most of judging you will learn on the bench.
    Judges go to judge school once they are first appointed, 
and they learn from their colleagues, and they learn from 
experience. So, what is really most important is not experience 
in terms of, have you tried cases in every single area of the 
law that you might face.
    The question is, do you have maturity of judgment? Do you 
have a sound judicial philosophy? Do you have integrity? Do you 
have the legal skills to learn on the job and to make decisions 
quickly and decisively and impartially?
    Mr. Issa. Now, I am going to presume, that if you have read 
Alan Dershowitz' book about early in the 20th century when 
there was a proposal to reduce the number of Jewish people 
attending Harvard, I would assume that you would object to us 
limiting the number of Harvard nominees in the future.
    Ms. Braceras. Well, I don't think there should be any 
arbitrary limits. Our Constitution anticipates that this is a 
political process. The Constitution left it to the President to 
make the appointments and the Senate to confirm, and the 
Senators have a role to play in terms of selecting nominees to 
the District Court, and sometimes the Court of Appeals as well. 
That is all appropriate and consistent with our Constitution.
    I don't think there should be any arbitrary rules about who 
they should pick or what their background should be.
    Mr. Issa. Well, thank you. Mr. Chair, at this time, I think 
it is appropriate to ask that the article from the Pew Research 
Foundation be placed in the record because it, quite frankly, 
shows that Jimmy Carter had more appointments than Donald 
Trump, and as was just noted, some of them are still on the 
bench.
    Mr. Johnson of Georgia. I think his were a little more 
diverse as well, President Carter. So, noted, and without 
objection, so ordered.
    [The information follows:]

                        MR. ISSA FOR THE RECORD

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

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Johnson of Georgia. Next, we will hear from the 
gentleman from Wisconsin, Mr. Fitzgerald, distinguished 
newspaper publisher, for five minutes.
    Mr. Fitzgerald. Thank you, Mr. Chair, appreciate it.
    I just wanted to back up a little bit, and if we could, 
address what some of the Members had touched on, and that was a 
profile that is being developed by specific courts in a 
predisposition on how they take cases, receive cases, who 
presents in front of them, which attorneys are either shopping 
venue or looking for a specific judge and--because my 
experience has been if you want an attorney that practices in a 
specific court, with specific attorneys, you go to one district 
or another.
    It is a predisposition that you would actually make the 
determination to which you are hoping for the best outcome.
    Then, let's talk about the circuits. When you are in front 
of a three-judge panel and you know that, well, we are in 
pretty good shape going into this case--as I have had many 
discussions with attorneys that have represented the State 
legislature over the years--isn't that as big an issue as 
anything that we have discussed here this morning? I was 
wondering if Ms. Braceras could address that first.
    Ms. Braceras. Yes, I agree. Forum shopping is a problem. It 
shouldn't be that way. Theoretically, you should get the same 
justice in the Eastern District of Texas that you would get in 
the Southern District of New York. That is absolutely what we 
should aspire to. I am not sure how you fix that, but I agree 
with the premise of your question.
    Mr. Fitzgerald. Mr. Warner, do you have comment on that 
aspect of what we have been discussing here today?
    Mr. Warner. I am here to focus on the Western District 
Bench and our appointment process, but I will try to answer in 
saying that forum shopping happens for many different reasons.
    I don't think it is necessarily tied to the diversity that 
we are talking about today, but one aspect that could be 
included there is, do benches, across the Federal bench in 
particular, have the legal expertise that is necessary to 
address the broad issues before the court. So, to the extent 
that diversity of legal expertise plays a role in forum 
shopping, then I guess yes, I agree that diversity of legal 
experiences is important.
    Mr. Fitzgerald. Very good.
    Ms. Diaz-Yaeger, do you have a comment on that topic?
    Ms. Diaz-Yaeger. Well, I agree with what Mr. Warner said. 
Forum shopping does, in fact, happen. It happens for a plethora 
of reasons. Perhaps diversity of experience, diversity of 
knowledge with regard to the area of expertise, may actually 
play into part of that.
    Mr. Fitzgerald. Yeah. So, Mr. Chair, my question and what I 
have been pondering as we have been listening to the input 
today is, how does this happen? Where are these judges coming 
from? Why is there this predisposition, whether it is in the 
Western or Eastern District of one of the States or if you end 
up in the Seventh Circuit in Chicago, whatever it may be, that 
suddenly it is about the makeup of the judges and their views, 
which many attorneys are well aware of before they even enter 
the courthouse.
    So, I think that is something to be pondered as much as any 
other question about race and equity that we have heard today, 
so.
    I yield back. Thank you.
    Mr. Johnson of Georgia. Thank you.
    We will now go to the--let's see--the gentleman from 
Oregon, Mr. Bentz. Mr. Bentz, you may proceed.
    Mr. Bentz. Thank you, Mr. Chair, and I would like to begin 
by giving a shout-out to Justice McShane who graduated from 
Lewis & Clark Law School as I did, and I am sure he is doing 
absolutely wonderfully in whatever the competition structure is 
between my law school and Harvard, but I am, yeah, a shout-out. 
I would like to ask him a question, but of course we are not 
asking that panel questions, so let me ask this question of Ms. 
Braceras.
    It happened that I was asked by my predecessor to serve on 
the review panel for possible appointees to the Ninth Circuit 
and to the Oregon District Court, and not that long ago, three 
or four years. There were seven of us, and it was highly 
political, and we had initially 21 applicants, I believe, and I 
said, ``that is too few.'' So, we reopened the application 
process. We ended up with 45, I believe.
    We were looking for both recommendations to the Ninth 
Circuit and to the U.S. District Court out of that pool. There 
then ensued a review of 40--whatever it was--44 big, huge piles 
of documents that reflected these people's absolutely wonderful 
backgrounds. I could not believe how qualified those people 
were.
    Then we reduced it down to 14, and then we interviewed 
those people for two days; seven one day and seven the next. 
Incredibly incredible people, every one of them. My question is 
this:
    Before we went to those interviews, all we had was paper, 
and I didn't feel inclined to Google anybody or anything else, 
and I don't recall any indication in the application forms of 
what race or what gender or what minority or anything of that 
nature. In other words, my review was without that input.
    My question to you would be, was that the right way to do 
it, or should we have been told--should there have been a forum 
calling out the minority status of these applicants?
    Ms. Braceras. I actually think that is highly unusual. I 
served on a search Committee for a magistrate judge, and my 
husband actually serves on the Judicial Nominating Commission 
for our State. I have had some informal experience also 
advising people in White House's Counsel's Office about 
potential nominees.
    It has always been, from my understanding, a transparent 
process in terms of people having opportunity to identify their 
background. I have never seen a process actually or heard of a 
process that didn't ask them to identify their backgrounds. 
That doesn't mean that is not an acceptable way to do it.
    I do think the point you made initially about expanding 
your search is an important one, because you said that you 
started off with a certain number of candidates and you asked 
for more. I think a lot of--when we talk about increasing 
diversity on the Federal Bench, recruitment is a big part of 
that, encouraging people to apply, reaching out to the affinity 
bars that we have talked about, and getting the word out that 
these are opportunities that are available, that people should 
throw their hat in the ring.
    So, I think the main way to get diversity, in addition to 
increasing the pathway to law school and the number of law 
school graduates who are people of color, would be in terms of 
recruiting and getting people to throw their hats in the ring. 
That is where we can make the biggest difference, I believe.
    Mr. Bentz. Thank you for that. In the minute I have left, I 
will ask this question to Mr. Warner. It seems almost as if--
and I think a number of previous folks have bumped into this--
that we are condemning, if you will, the current folks on the 
bench by saying that they are inadequate in that they are, as a 
group, not adequately representative of different portions of 
our population.
    If that appears to be--and this is not to say that I in any 
way support not having minorities. I am totally supportive of 
having a balanced bench as long as we don't give away, as Mr. 
Johnson mentioned, the primary focus on the merits.
    My question to you is: How would you measure that 
inadequacy now? I know we heard at the District Court level 
when someone, a minority, comes before a nonminority judge, 
there is a problem. What other problems come up, let's say at 
the appellate level, by virtue of this inadequate 
representation of minorities?
    Mr. Warner. Thank you, Representative Bentz. First, I 
wouldn't say that we are at an inadequate place with our 
current Western District Bench. In fact, we are very proud of 
the diversity on our Western District Bench that is currently 
there, but the reality is that we have several judges retiring 
or going into senior status, and, so, we have five vacancies, 
and those five vacancies are coming up now in a context where 
we have more diversity within our legal community than we did 
15 years ago, and the judiciary should continue to reflect the 
changing landscape of our local community. So, we were 
intentional about doing so in this process.
    Mr. Bentz. Thank you.
    Thank you, Mr. Chair, I yield back.
    Mr. Johnson of Georgia. Thank you, and Representative 
Bentz, I neglected to point out the fact that you, yourself, 
have served admirably as an attorney partner in a law firm for 
decades, and a farmer. So, thank you for your service.
    I believe that we have exhausted the number of 
Representatives who are available for questions, and so we are 
at the conclusion of today's hearing. So, I want to thank all 
of the panelists for appearing and for their testimony.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the Witnesses 
or additional materials for the record. With that, our hearing 
is adjourned.
    By the way, I like the bolo tie, Representative Issa.
    Mr. Issa. Well, thank you. Being in the West, it seemed 
appropriate to wear today in San Diego. So, in the land of 
Ronald Reagan, an open shirt would be inappropriate but not 
this tie.
    So, thank you again for holding this hearing. I think we 
all benefited. I would like to remind all the Witnesses that I 
did ask for an in-writing list of those characteristics they 
think are most important in the way of skill sets before coming 
to the bench.
    Because I think that the diversity of their answers could 
well help both you and me.
    Mr. Johnson of Georgia. Thank you, and I want to thank 
the--especially thank the Members of the first panel who had 
the staying power to stay throughout the second panel. So once 
again, thank you for all of the panelists and everyone have a 
great day. This hearing is adjourned.
    [Whereupon, at 12:37 p.m., the Subcommittee was adjourned.]
   

                                APPENDIX

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

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT] 

                                 [all]