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University of Minnesota
November 5, 2008
University of Minnesota public affairs professor Sally Kenney.
Photo: Patrick O'Leary
U professor hopes to up the count of female judges on the Eighth Circuit Court of Appeals
By Pauline Oo
Of the 11 judges on the Eighth Circuit Court of Appeals, which covers Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas, only one is a woman. Diana Murphy, 74, has been that lone female since Congress established the judicial circuit in 1891. But things may soon change if University of Minnesota public affairs professor Sally Kenney has her way.
Last year Kenney and three others—Minneapolis attorney Mary Vasaly, Hamline University law professor Marie Failinger, and Lisa Brabbit, an assistant dean at the St. Thomas School of Law—founded the Infinity Project to increase gender diversity on the Eighth Circuit bench. (The name, Infinity, comes from the number eight turned on its side.) The group has since grown to more than 100 people in Minnesota.
"The Eighth Circuit has the lowest percentage of women on the bench of all the circuits," says Kenney, who directs the Humphrey Institute's Center on Women and Public Policy. "Nobody until now has raised the alarm and said, ‘Wait a minute, the last nine appointments have been men; isn't it time for a woman?' We have geographical representation on the Eighth Circuit bench by statute, but not gender diversity. We are one retirement away from having an all-male court."
The United States has 94 district courts that are divided into 12 regional circuits. And each circuit has a U.S. Court of Appeals to hear pleas from its district courts. Women make up 27 percent of the courts of appeals, 25 percent of the district courts, and 11 percent of the U.S. Supreme Court, which hears cases that may begin in the federal or state courts and typically involves questions about the Constitution or federal law.
"In the 1970s, women came together to put pressure on the Carter Administration," says Kenney. "As a result, President Carter appointed more women  to the federal bench than all previous presidents combined."
But the numbers shrank during the Bush Administration because the organizations that used to work on gender equity in the legal profession and judiciary—like Minnesota Women Lawyers, the National Association of Women Judges, the National Women's Political Caucus, and the Minnesota Women's Political Caucus—have dropped the issue from their agendas, says Kenney, and because the current U.S. president is not appointing at the rate of his predecessor. Nearly 30 percent of President Clinton's appointments to the federal bench were women; only 21 percent of President Bush's appointments have been women.
"People think that women are chugging along—that we're increasing our numbers of women in the legal profession [about 30 percent now] and we're increasing the numbers of women law graduates [roughly half of all current law school grads]—and it's just a matter of time until women trickle up into these judicial positions," says Kenney, "when, in fact, we're going backwards rather than making progress."
So, why is it important to have gender diversity on the bench?
"Judges have the responsibility to make important decisions in difficult matters," offers Carolyn Chalmers, director of the U's Office for Conflict Resolution. "And their own life experiences inform them, in addition to the case law that they read and the statutes that they read. Having people on the bench who have had diverse life experiences and bring different perspectives is key to making the best decisions for the range of issues that come up. Because the range of issues that come up through our judicial system reflects all the diversity in our society."
"People think... it's just a matter of time until women trickle up into these judicial positions," says Kenney, "when in fact, we're going backwards rather than making progress."
In August, the Infinity Project received a $43,000 grant from the Open Society Institute to put together a seven-state group to work on the issue. A kick-off event was held over the second weekend of October.
"It was a true working meeting—we all learned a lot about the selection process, and we created an organizational structure for moving forward and laid the groundwork for ongoing efforts," says Carol Chomsky, one of two University of Minnesota Law School faculty drawn to the Infinity Project. Mary Lou Fellows is the other.
According to the Constitution, federal judges are nominated by the president and confirmed by the Senate. But the appointment process "is really murky and invisible," says Kenney. "It's mostly up to the president alone for the Supreme Court bench, and it's pretty much up to the home state senators for the district court and court of appeals appointments. Some senators just appoint the person who ran their campaign, their law partner, or brother-in-law.
What's in a judge?
When asked who makes a good judge, political science professor Sally Kenney replied: "Someone who's fair, really smart, compassionate, has a broad life experience, a good writer, and collegial," she says.
"By not appointing women to the circuit courts, we are effectively excluding women as potential candidates for the U.S. Supreme Court." All nine justices serving on the Supreme Court previously served on the U.S. Court of Appeals. (President Reagan appointed the first woman, Sandra Day O'Connor, to the Supreme Court in 1981. President Clinton appointed the second, Ruth Bader Ginsburg, in 1993.)
"We are not going to see women appointed proportionate to their numbers unless we apply pressure," adds Kenney. "Think of it in the frame of employment discrimination: When you have a really strong asymmetry between the people in the qualified pool and the people who get the job, you say, ‘I suspect discrimination.'"
Although there currently isn't a vacancy on the Eighth Circuit bench, "our goal is to be ready," says Kenney. "So when a vacancy occurs, we'll have already primed everybody to say: ‘We have to find a really terrific woman for this opening.'"