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Women in the Federal Judiciary: An Update

Rome, I hear, was not built in a day. Neither is a diverse federal judiciary. When Justice Ginsburg graduated from law school (1959), there were two female federal judges. When Justice Sotomayor graduated from law school (1979), that number had increased to 35. In 1988, the year I graduated from high school, women made up about 7% of federal judges. Over the past three decades, an increasing number of women have joined the legal profession. In recent years, law schools have seen the number of female students increase, so that they now make up nearly half of all law students. Today, women make up roughly 30% of the federal bench and for the first time in history, that holds true in trial courts, courts of appeal, and the highest court in the land, the Supreme Court.

The increased number of women on the federal bench is a fact worthy of celebration, because when women are fairly represented, our federal courts are more reflective of the diverse population of this nation. In addition, when women are fairly represented on the federal bench, women as well as men may have more confidence that the court understands the real-world implications of its rulings. For both, the increased presence of women on the bench improves the quality of justice: women judges can bring an understanding of the impact of the law on the lives of women and girls to the bench, and enrich courts’ understanding of how best to realize the intended purpose and effect of the law that the courts are charged with applying.

But while we cheer this progress, it’s nowhere near time to sit back and think that our work is done. Over the past few years, the number of women in the federal judiciary has stagnated, hovering around 500 in the most recent years for which data have been collected (2007-2009). So it’s more important than ever to keep the numbers and percentages of female judicial nominees high, and to press the Senate to confirm the women who have been nominated to the bench.

On this score, there’s good and bad news to report. So the good news: Forty-nine percent of the individuals the Obama Administration has nominated to the bench are female. That admirably high percentage manifests itself in remarkable ways – like the fact that yesterday, four individuals were nominated to the district courts -- three of whom are women. And at the Senate Judiciary Committee’s nominations hearing today, there are four district court nominees – all of whom are women. And the percentage of confirmed judges who are female during the Obama Administration is almost as high as that of those nominated -- 45 percent. Considering that only 22% of President George W. Bush’s confirmed judges were women (that’s 71 women out of 323 confirmed judges if you want to check my math), this is pretty remarkable. Truly, women on the bench are ceasing to be, to paraphrase Justice Ginsburg, a “one-at-a-time curiosity.”

But, not to be greedy, we could be doing better. The not-so-good news is that there are excellent  female judicial nominees who are ready to be confirmed, and could have been dispensing justice for months, but instead are just waiting. This includes highly qualified appellate court nominees like Caitlin Halligan (nominated to the U.S. Court of Appeals for the District of Columbia Circuit) and Bernice Donald (nominated to the U.S. Court of Appeals for the Sixth Circuit). And it includes seven female district court nominees who did not receive a single “no” vote in the Senate Judiciary Committee. Really? With 92 vacancies in the federal judiciary, it’s not like we can afford to have judicial seats sitting empty.

So this is no time to rest on our laurels. Let’s get these highly qualified women on the bench, so they can get to work.

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