Senator Toomey is Blocking a Well-Qualified Judicial Nominee and Adding to the Lack of Gender Diversity in Our Judiciary

Note: I had the pleasure of co-authoring this post with Ellen C. Brotman, Chair of the White Collar and Government Investigations Practice at Griesing Law, LLC, a Philadelphia-based, woman-owned law firm. You can follow Ellen on Twitter @EllenBrotman.


Women judges graph

Last month, the United States Court of Appeals for the Third Circuit held the swearing in of its latest judge, the Honorable L. Felipe Restrepo, a naturalized American citizen, born in Colombia, a graduate of the University of Pennsylvania and Tulane Law School.  Judge Restrepo is a universally respected jurist and legal scholar who brings a diversity of background and training to the Court.

But despite this positive development, the Third Circuit still has a diversity problem: the Court has 13 active judges, and only two of them are women. That’s the lowest proportion of women of any federal appeals court in the country.

The Third Circuit’s shortage of women judges undermines both the public’s confidence in our justice system and the Court’s ability to tap into diverse perspectives in its deliberations.  Yet, as part of a Republican effort to thwart President Obama’s judicial nominations, Pennsylvania’s Republican United States Senator Pat Toomey is currently blocking the nomination of a well-qualified woman, Rebecca Ross Haywood, to the Court.  This partisan obstructionism has to stop.

The Third Circuit sits in Philadelphia and hears appeals from federal courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands. It is one of 12 regional federal circuit courts. Federal judges are nominated by the President, confirmed by the Senate, and serve for life. Once judges reach a certain age and number of years of service, they have the option of entering a sort of semi-retirement known as senior status. When a judge takes senior status, it creates an open seat on the court for a new active judge.

Nationwide, about a third of federal appellate judges are women. All but two other circuits have a proportion of women judges that’s twice as high as the Third Circuit’s; in three circuits, the proportion of women is three times greater. For example, the Eleventh Circuit — considered by many the most conservative circuit court in the country — has five women among its 11 active judges, or 45 percent.

Of course, it is encouraging that the Third Circuit is doing better when it comes to racial and ethnic diversity. The Court’s proportion of African American and Hispanic judges is above the national circuit-court average.

But those responsible for selecting judges should be doing everything they can to correct the Third Circuit’s shortage of women. After Judge Rendell took senior status a year ago, President Barack Obama nominated Rebecca Ross Haywood, the Chief of the Appellate Division in the United States Attorney’s Office in Pittsburgh, to fill Judge Rendell’s seat.  AUSA Haywood has more experience as a federal prosecutor and appellate advocate than any recent Third Circuit appointee. And Haywood’s nomination is historic — she would be the Court’s first-ever African-American woman. The American Bar Association gave Haywood its highest rating, Unanimously Well Qualified. Yet Senator Toomey questions Haywood’s abilities and is using Senate procedural rules to block her nomination.

Why is gender diversity important? Aside from the importance of equally recognizing accomplishments and providing role models and exemplars, diverse perspectives lead to better decision making.  One study found that women federal appellate judges are significantly more likely than men to rule in favor a party alleging discrimination. Just having women judges on the panel deciding a case has a significant impact on how the men judges on the panel rule, too: with a woman on the panel, the study found, men are significantly more likely to rule in in favor of a civil rights litigant. The recent scandal over misogynist and racist emails exchanged between Pennsylvania Supreme Court justices and attorneys here in Pennsylvania demonstrates how important a diverse bench is to the public’s ability to have confidence in justice system.

Just a decade ago, the Third Circuit had a solid contingent of women judges: Judge Delores Sloviter, Judge Jane Roth, Judge Marjorie Rendell, and Judge Maryanne Trump Barry. But, since 2006, all four women have taken senior status, and Judge Sloviter recently stopped hearing cases altogether. In that time, only two male Third Circuit judges went senior, and only two of the judges added since 2006 — Judge Patty Shwartz and Judge Cheryl Krause — are women.  From 2000 and 2012, 10 new judges joined the Court: all 10 were men.

AUSA Haywood deserves the nomination because she has the acumen, the training, and the character. The Third Circuit deserves a judge with AUSA Haywood’s skills, wisdom and distinct perspective. Senator Toomey’s constituents deserve a representative who will stop playing politics with our justice system. It’s time to move AUSA Haywood’s nomination forward.