It’s time to change the conversation about “token” judicial appointments

Dear Judge Richard Posner:

Recently, you sat for an interview with Professor Luigi Zingales at the University of Chicago — which the Chicago Tribune reported on — that is causing concern for many lawyers. Specifically, on the subject of judicial appointments, you said:

[Politicians] do not care about quality beyond a minimum. A very low minimum. They care about other things. They care about tokens — (laughing) you have to have a woman, you have to have a Hispanic, you have to have a this, you have to have a that, but they care more than that about the politics. The political leanings, the religious leanings, so on, about the candidates, so you end up with mediocre courts that are highly politicized.

Your words transported me back to a time in high school when my calculus teacher told me I would succeed in this world not due to my own merits, but because I was a woman and Hispanic. He did not mean it as a compliment.

And now, twenty years later, many across the country still believe that women and people of color are not qualified to sit in positions of power but rather are given those spots to achieve a quota. It is still widely believed, whether consciously or subconsciously, that women and people of color are not competent or intelligent enough to move up the ladder of their own accord, and that they are taking spots from more qualified individuals who are, more often than not, white males. Tokenism is a concept that we continue to fight against as it forces women and diverse attorneys to continually prove ourselves long after others have achieved status.

I looked at the backgrounds of the nine justices currently sitting on the United States Supreme Court, and I found their profiles to be nearly identical on paper. Interestingly, all of the justices are Ivy League-trained; four can claim law review or journal experience during law school; six held clerkships before entering into either government service or private practice that included stints in roles as White House advisors, general counsels, professors or as partners and practice group leaders; and all nine have careers that would be coveted by any lawyer in the profession today.

Given your high judicial bench, [Editor’s note: Posner sits on the 7th U.S. Court of Appeals in Chicago] your words have an impact. By making statements that connect “women” and “Hispanics” as tokens, you make the struggle harder, especially for someone like me who is both a woman and Hispanic. You make it harder for leaders who have seen first hand that we are deserving of nominations for promotion. You confirm the biases of those who cannot see our individual value or our abilities to achieve and succeed in our own right. By saying what you have said, you seemingly make it acceptable for leaders to continue to review and evaluate us not on the merits — but with an eye toward determining whether we belong and fit in.

Moving ahead, please bear in mind the weighty — and perhaps unintended — consequences of your critical words as a well-known public servant. I encourage you to explore the myriad reasons why our leaders cannot easily see the many qualified women and diverse attorneys who should already be on their lists for consideration. I ask that you help us change the dialogue that continues to undermine our efforts.

As it stands, the makeup of the judiciary does not adequately reflect the rich demographic tapestry of our nation. With the support of respected judges such as yourself, we could reshape not only the conversation, but also the composition of the bench from small county courthouses all the way to the Supreme Court.


Courtney Chavez

Disclosure: The University of Texas has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Courtney R. Chavez

Deputy director, UT Center for Women in Law