The following commentary by Marie A. Faillinger, Kendra Brodin, Mike Essien, Ben Kwan and Larissa Maldonado was posted on the Star Tribune website September 2, 2017:
Sens. Klobuchar and Franken are right to be taking their time.
U.S. Rep. Erik Paulsen should not have called out U.S. Sens. Amy Klobuchar and Al Franken for “obstructionism” in the nomination of Minnesota Supreme Court Justice David Stras to fill retired Judge Diana Murphy’s seat on the Eighth U.S. Circuit Court of Appeals (“Partisan game-playing blocks an outstanding judge,” Opinion Exchange, Aug. 25).
To call their delay “obstructionism” is to say “let’s just move along with the process.”
Paulsen calls for a rubber stamp on a judicial nomination that was anything but open and transparent and that was not one that might yield the diverse court that the public needs.
We wouldn’t begrudge any senators — Democrats or Republicans — the right to withhold their “blue slips” when a judicial nomination is made without an open application process and without considering the diversity of the Eighth Circuit, historically one of the least diverse benches in the country.
Klobuchar and Franken have a critical choice to make because the Eighth Circuit is the final word for momentous legal decisions in Minnesota, Iowa, North and South Dakota, Nebraska, Arkansas and Missouri.
Murphy, whose seat is at stake, was the first and only woman of the 61 appointments made to that court until 2013, when Judge Jane Kelly from Iowa was appointed; she is now the lone woman among the active judges on this court. Moreover, only one lawyer of color has ever served as a member of this court — Judge Lavenski Smith from Arkansas.
As presidents and a former president of organizations dedicated to a strong judiciary, we ask Paulsen: What can you do now to ensure that all candidates with diversity of experience and missing skills and perspectives are considered? There is still time to open a nominating process mysterious even to seasoned nominations watchers and to accept applications to a bipartisan commission with transparent procedures like the one Klobuchar and Franken were using to fill the district court vacancies before last fall’s election.
One might ask: Why shouldn’t the senators simply consider whether, in isolation, Stras is a meritorious candidate for this seat? As a collective body, the strength of the Court of Appeals, like the rest of the judiciary, comes from the diversity of judicial philosophies, life experiences, professional skills and insights of its members. We know this from everyday life: Families work because parents bring different gifts and philosophies to make them strong. Corporations work because their employees bring differing talents, insights and values to their workplace.
Law is not formulaic — it requires thoughtful judges with diverse experiences and perspectives who can help the Court of Appeals understand the diversity of our polity that contributes toward “a more perfect union” of justice for all. A diverse bench enhances public trust and confidence and improves the quality of the judiciary’s work.
Will the Eighth Circuit reflect that diversity with the white men nominated from Nebraska and North Dakota, in addition to Stras? That court would be composed of nine white male judges, only one woman and only one man of color. While Stras’ appointment will positively increase the court’s religious diversity, what is the impact of the court’s worsening gender imbalance and continued lack of racial and ethnic diversity on the communities it serves?
Even if Stras is an excellent candidate standing alone, he may or may not be the very best candidate to strengthen the body as a whole. We should be asking: Who can add the most strength to the collective Eighth Circuit to ensure that the court as a whole understands the diverse experiences of the American people and can interpret the law to do justice given that diversity?
Perhaps Stras will emerge as the strongest candidate in a transparent and inclusive process. But without it, we will never know. What we do know is that many citizens whom the Eighth Circuit serves will wonder if a court without diversity can really understand their lives and concerns.
Klobuchar and Franken are right to take their time in deciding whether this is a void that Minnesotans can live with.
Marie A. Failinger is a law professor and co-founder of the Infinity Project. Kendra Brodin is president of Minnesota Women Lawyers. Mike Essien is president of the Minnesota Association of Black Lawyers. Ben Kwan is president of the Minnesota Asian Pacific American Bar Association. Lariss Maldonado is president of the Minnesota Hispanic Bar Association.
View the post here.