We’ve said it before, and we’ll say it again: President Obama has made significant steps towards increasing the diversity of the federal judiciary in a number of important ways. 41% of Obama’s confirmed judges have been women — raising the number of total female active federal judges to approximately 30% overall. At the end of President Obama’s first term alone, there have been more female, black, Hispanic, and openly gay federal judges than confirmed during President George W. Bush’s two terms.
This brings us to the recent nomination of the Jane Kelly, who, if confirmed, would be the second-ever woman to serve on the Eighth Circuit Court of Appeals. An article this morning that described one case recently decided by the Eighth Circuit is illustrative of how diversity matters to outcomes of actual cases that are decided and women contribute to the quality of justice. The article quotes the Executive Director of the Infinity Project, who describes the case of Shawanna Nelson, an Arkansas prisoner who filed a lawsuit over being shackled to a hospital bed while in labor. The prisoner’s attorney argued before a panel of Eighth Circuit judges that her client, a nonviolent offender who was about to give birth to a ten-pound baby, didn’t pose a flight risk. As the attorney put it, “I can tell you that a woman about to deliver a nearly 10-pound baby is not going anywhere.” The Eighth Circuit eventually sided with her client, in an opinion written by the circuit’s sole woman, Judge Diana Murphy.
And Ms. Kelly is not the only one of President Obama’s nominees whose confirmation would improve women’s representation on the federal bench. Patty Shwartz, if confirmed, would increase the percentage of female judges on the Third Circuit to 21%. And if Caitlin Halligan is confirmed to the D.C. Circuit Court of Appeals, she would be only the sixth woman to sit on that court since 1893. That result would be even more fitting, since Ms. Halligan clerked for Judge Patricia Wald, the first woman ever to sit on the D.C. Circuit. It’s a good reminder that progress is not always measured in firsts, but in seconds, thirds — and sixths — and that the ultimate goal of diversifying our courts is helping to ensure that the outcome of cases like Ms. Nelson’s are ever less in dispute.