Montpetit Brabbit, Lisa

English

University of St. Thomas, Minnesota

University of St. Thomas Law Journal Volume 16 Issue 2 Who Decides? Picking Judges in the 21st Century Article 1 April 2020 Picking Judges: An Introduction Lisa Montpetit Brabbit lmbrabbit@stthomas.edu Follow this and additional works at: https://ir.stthomas.edu/ustlj  Part of the Constitutional Law Commons, Courts Commons, Judges Commons, Jurisprudence Commons, Law and Gender Commons, Law and Politics Commons, Legal Profession Commons, and the Supreme Court of the United States Commons Recommended Citation Lisa Montpetit Brabbit, Picking Judges: An Introduction, 16 U. ST. THOMAS L.J. 133 (2020). Available at: https://ir.stthomas.edu/ustlj/vol16/iss2/1 This Introductory Address is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information, please contact lawjournal@stthomas.edu. \\jciprod01\productn\U\UST\16-2\UST201.txt unknown Seq: 1  2-APR-20 10:53INTRODUCTIONPICKING JUDGES: AN INTRODUCTIONLISA MONTPETIT BRABBIT*I. THE INFINITY PROJECT: A PRIMER . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 RII. THE INFINITY PROJECT: IN ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . 135 RIII. THE INFINITY PROJECT: A CONTINUED COMMITMENT . . . . . . . . . 137 R“[P]rogress does not occur automatically, but requires a concertedeffort to change habitual modes of thinking and acting.”1The Infinity Project gratefully accepted the invitation to co-sponsor thesymposium “Who Decides? Picking Judges in the 21st Century.” A diversegroup of scholars, advocates, politicians, judges, and lawyers providedopinions and insights on big picture issues and examined important nuancesrelated to judicial selection—nuances that are not always visible to thepublic at large. While debates ensued, a consensus emerged around the aimof ensuring uncompromising quality, so citizens are best served by theadministration of justice. The pages that follow highlight these diverseperspectives and shared goals at both the state and federal level. TheInfinity Project continues to benefit from the ongoing and robustcommunity dialogue about judicial selection, as it seeks to advance itsmission of increasing the gender diversity of the bench.I. THE INFINITY PROJECT: A PRIMERThe Infinity Project came to fruition thirteen years after Chief JudgeRichard S. Arnold asked District Judge Diana Murphy to organize and ap-point a gender task force in the Eighth Circuit “to study effects of gender onboth processes and people in the Eighth Circuit judicial system.”2 Similarefforts were cropping up across the country after the New Jersey Supreme* Lisa Montpetit Brabbit is the Associate Dean for External Relations at the University ofSt. Thomas School of Law. She is also a co-founder of the Infinity Project. She would like tothank Debra Fitzpatrick, executive director of the Infinity Project (2008–2020) for her contribu-tions to this introduction.1. Ruth Bader Ginsburg, Foreword, 84 GEO. L.J. 1651, 1652 (1996).2. Lyle E. Strom, Eighth Circuit: Gender Fairness Task Force, 32 U. RICH. L. REV. 731,732 (1998).133\\jciprod01\productn\U\UST\16-2\UST201.txt unknown Seq: 2  2-APR-20 10:53134 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 16:2Court task force3 surfaced pervasive gender bias in the judicial system.Those findings triggered a national movement to understand the push andpull of gender influences.4 As Judge Murphy’s task force was examininggender in the Eighth Circuit, she became the first woman in its then 103-year history to be appointed to the bench. That was in 1994. The task forcepublished its 172-page report in 1997.Writing about the report, Judge Lyle Strom, chair of the Eighth Circuittask force, opined, “[T]his study will result in policies in this circuit thatwill address issues of gender and improve the administration of justice inour courts.”5 And it did in many areas. But long-term, sustainable progressrequires a more in-depth evaluation of the systems that drive judicial selec-tions. Systems provide free housing for implicit bias.Some find it ironic that the woman credited as the driving force behindthe task force, its organization, its monumental effort, its findings, and itsimplementation remained the only woman on the Eighth Circuit for twodecades. The Honorable Jane Kelly joined Judge Murphy on the bench in2014; unfortunately, the hope of a budding critical mass faded with JudgeMurphy’s passing in 2018, leaving Judge Kelly to assume Judge Murphy’slongstanding role as “the one and only.”Federal task force findings related to gender bias and inequality werenot new to Minnesota. In fact, similar findings were already spelled outfollowing Minnesota’s comprehensive effort to examine the role of genderin the courts a decade earlier. In 1987, Chief Justice Douglas Amdahl ap-pointed the Honorable Rosalie Wahl, associate justice for the MinnesotaSupreme Court, to chair the Gender Fairness Task Force in the Courts, andthirty lawyers and judges were named to the committee. The mandate of thetask force was to explore the extent to which gender bias exists in the Min-nesota state court system, to identify and document gender bias wherefound, and to recommend methods for its elimination. After an exhaustivereview, the task force identified four areas that remained the most challeng-ing, conclusive, and compelling. Those four areas were family law, domes-tic violence,6 criminal and civil justice, and courtroom environment.7 Thesection on courtroom environment includes an evaluation of the gender3. NEW JERSEY SUPREME COURT TASK FORCE ON WOMEN IN THE COURTS, THE SECONDREPORT OF THE TASK FORCE ON WOMEN IN THE COURTS (1986). Forty states followed suit.4. Molly Treadway Johnson, FED. JUD. CTR., STUDYING THE ROLE OF GENDER IN THE FED-ERAL COURTS: A RESEARCH GUIDE (1995). The Federal Courts Study Committee initially con-cluded that these studies in the federal courts were unnecessary, but the Ninth Circuit led thecharge, the D.C. Circuit soon followed, and the Eighth Circuit launched its effort in 1993.5. See Strom, supra note 2, at 733.6. MINNESOTA SUPREME COURT TASK FORCE FOR GENDER FAIRNESS IN THE COURTS, FINALREPORT 36 (1989). Domestic violence became a top priority for the implementation committee.7. GENDER FAIRNESS IMPLEMENTATION COMMITTEE, PROGRESS REPORT TO THE MINNESOTASUPREME COURT (1994). An implementation committee was established following the work of thetask force, and a progress report was issued in 1994.\\jciprod01\productn\U\UST\16-2\UST201.txt unknown Seq: 3  2-APR-20 10:532020] PICKING JUDGES 135composition of the courts. At that time, less than 10 percent of all Minne-sota judges were women, and some judicial districts did not have a singlewoman judge.8 Noticeably absent in its 2020 reading is any discussion orevaluation related to women of color.9My introduction to gender disparity on the bench occurred in 2006when I served as Judge Murphy’s oral historian for the American Bar Asso-ciation’s Women Trailblazers in the Law Project.10 During one of thenineteen oral history sessions, I asked Judge Murphy about becoming thefirst woman to sit on the Eighth Circuit. She paused. She told me she wassurprised to be the first, but she was even more baffled that she was still theonly one. Since her appointment, nine other judges joined the Eighth Cir-cuit—all men. This fact was distracting to me for the remainder of our oralhistory session. On my way back to the office, I called then appellate attor-ney and litigator, Mary Vasaly, and asked her if she wanted to do somethingabout the lack of gender diversity on the Eighth Circuit Court of Appeals.In the coming months, we joined Professor Marie Failinger and Profes-sor Sally Kenney in a conference room at Maslon, Edelman, Borman, andBrand, and the Infinity Project was on its way.11 In the years that followed,the Infinity Project became a multistate collaborative and included a diversenetwork of judges, lawyers, and scholars interested in improving justice bydiversifying the state and federal bench. Minnesota continues to serve as the“headquarters” for the effort.II. THE INFINITY PROJECT: IN ACTIONSince its inception, the Infinity Project has focused its resourcesaround three strategic initiatives to advance its mission:(1) raising awareness about the importance of and lack of women onthe state and federal benches;(2) informing and working with judicial selection decision-makers toimprove processes; and(3) helping women who are interested in serving on the state and fed-eral bench navigate selection processes.Much has been written about the importance of a diverse bench,12 butthose writings do not represent the full spectrum of opinions on the issue.8. Id. at 11. When the progress report was issued in 1994, the report noted that forty-sixwomen served on the bench, and there was a woman judge in every judicial district except theEighth and the Ninth.9. See generally GENDER FAIRNESS IMPLEMENTATION COMMITTEE, supra note 7.10. Stanford Digital Repository, Oral History of Diana Murphy, STANFORD LIBRARIES (lastvisited Dec. 3, 2019), http://purl.stanford.edu/dr113dd9587.11. See Mary Vasaly, Men in Black: Gender Diversity and the Eighth Circuit Bench, 36 WM.MITCHELL L. REV. 1703 (2010) (detailing the early history of the Infinity Project).12. See Vasaly, supra note 11; see also Sally J. Kenney, Infinity Project Seeks to IncreaseGender Diversity of the Eighth Circuit Court of Appeals, 92 JUDICATURE 131 (2008); see alsoCeleste F. Bremer, The Eighth Circuit Gender Fairness Task Force: A Master Class from Judge\\jciprod01\productn\U\UST\16-2\UST201.txt unknown Seq: 4  2-APR-20 10:53136 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 16:2Even Judge Murphy recognized the diverse reactions to a discussion aboutbias in the judiciary when the Eighth Circuit task force issued its report in1997. Not much has been written about why diversity is irrelevant to theconcept of equal justice for all, but this conclusion is alive and well andmostly silent in our social frameworks. This contradictory conclusion oftenlives buried in the unconscious thought process, invisible to sight (andsometimes leads to a wolf in sheep’s clothing). Challenging implicit biasrequires action steps that challenge our buried thought processes.The Infinity Project continues to engage its three strategic priorities ona fulcrum of action and most recently has invested significant time andresources in the Infinity Project Collaborative Bootcamp. These four-hourprograms, developed in deep collaboration with affinity bar organizations inMinnesota, Iowa, and North Dakota, include tracks for people at differentstages of their legal careers: lawyers interested in serving as a judge in thefuture (typically lawyers with less than ten years’ experience); lawyers in-terested and ready to apply for an opening (typically lawyers with morethan ten years’ experience); and lawyers and sitting judges interested andready to apply for state appellate or federal courts.The Collaborative Bootcamp model uses personal outreach to attractpotential participants and develop relationships with decision-makers. Thepersonal outreach model recognizes the important role of recruitment inchanging the perceptions of who is qualified to sit on the bench. The “byinvitation” approach of these workshops served as a powerful validator forthose involved, especially the lawyers with less than ten years’ experience.Most of the participants were honored to be part of the workshop. Themodel encourages individuals and organizations to think carefully andoutside the box about future judicial talent and seeks to change the percep-tions of underrepresented women lawyers about their ability to serve thepublic as a judge.Involving judicial decision-makers as session leaders in the bootcampmodel expands the consideration and understanding of the talent pipeline.Even in Minnesota, where 85 percent of the population is white, bootcampleaders can see in a powerful, visual way the depth of legal talent ready andable to serve in judicial positions from communities of color. This processfurther disrupts implicit bias in the system when bootcamp leaders evenfrom the affinity bar associations see and experience something very differ-ent from the common conclusion—that there just aren’t qualified people intheir communities—about the diversity of the pipeline to the bench. Influ-encers connected to the state and national judicial selection process oftencomplain that no one is applying from communities of color; serving as abootcamp leader changes that narrative. Moreover, women lawyers of colorDiana Murphy in Organizational Leadership, 103 MINN. L. REV. 21 (2018). All three authors areleaders of the Infinity Project.\\jciprod01\productn\U\UST\16-2\UST201.txt unknown Seq: 5  2-APR-20 10:532020] PICKING JUDGES 137typically represent half or more of the participants. In this bootcamp model,women of color can feel the collective power of being in a space with somany other people like themselves—a big change from often being the oneand only in the room.Through the bootcamp format, underrepresented individuals receivecoaching and mentoring from individuals that influence selection processesdirectly or indirectly. After years of feeling left out and marginalized, areality affirmed by many of the judges of color who served as facilitators,participants felt like they were finally getting the same kind of informationthat white men had always been privy to through association with the typesof “power brokers” leading the workshops. Around half of the facilitatorswere white men and women who showed up on a Saturday to openly sharean insider perspective.As part of the Collaborative Bootcamp model, the Infinity Project hasdeveloped the “My Journey to the Bench” planning tool. The planning toolwalks an applicant through important procedural points of discernment andstrategy, such as relationship building; developing application materials, apersonal narrative/story and a professional brand; and informationgathering.III. THE INFINITY PROJECT: A CONTINUED COMMITMENTThe story and continuing work of the Infinity Project speaks to aninvestment in our communities for a limitless period of time. Given whatwe know about implicit bias and given that the pathway to the bench en-gages various systems, the idea that our judiciary can and should be reflec-tive of the people it serves will forever require strategy and intent. Theprocess that delivers “equal justice under law” will determine whether par-ticipants in the administration of the system believe in and accept its man-date. Unless that process includes a diverse bench, the fabric of ourdemocracy will have tears.Judge Murphy’s legacy continues to inspire the efforts of the InfinityProject. Volunteers will continue to work tirelessly to educate about theimportance of a diverse bench, influence decision makers about selectionprocesses, and help build and advance a deep and robust pipeline of judicialcandidates. In my lifetime, I hope to see the Eighth Circuit bench reflect thediversity of the communities it serves. Judge Murphy would be so proud.

Picking Judges: An Introduction

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Picking Judges: An Introduction

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University of St. Thomas, Minnesota