ONE OF THE LAST white male bastions, the federal judiciary, boasting only 1.1 percent women and 4 percent blacks, is on the brink of the largest expansion in its history. The omnibus judgeship bill now awaiting action by House Senate conferees would create 145 to 150 new judgeships, thus increasing the size of the federal judiciary by more than 25 percent. Women and minorities will fill a significant number of these new positions only if the president and members of the Senate change the present selection process to provide equal access for these traditionally ignord groups.
The Marston affair, which recently focused public attention on the selection process for federal judges and U.S. attorneys, did not, however, reveal the devastating impact that process has had on the appointment of women.
Even when compared with other traditionally male-dominated occupations, the federal judiciary - the upholder of equal rights in the United States - is at the bottom of the heap. The percentage of women construction workers (6.4 percent), welders and flame cutters (6.3 percent), and even female locomotive engineers (2.1 percent), exceeds the 1.1 percent of federal judges who are women.
The paucity of women federal judges is shocking:
No woman has ever served on the Supreme Court.
Only 12 women has ever served on the federal bench in its almost 200-year history.
Only two women have ever been appointed to the U.S. Court of Appeals.
Only one out of the 97 authorized Court of Appeals judgeships is now held by a woman.
Only six of the 525 authorized federal judgeships are now held by women.
Against this background, candidate Jimmy Carter assured women's groups at the 1976 Democratic national convention that he would appoint more women to the federal bench. How has he performed? During his first 14 months in office, President Carter made 38 nominations for federal judgeships; only two were women. Of his 10 appointment to the U.S. Court of Appeals, not one was a woman. Yet Labor Department statistics show that more than 41,000, or 9 percent, of the attorneys practicing in the United States today are women.
WHY IS IT important to have more women on the bench? Basic fairness demands it. It is disgrace for a nation which prides itself on equality to have only males deciding the critical legal issues of our day. An all-male Supreme Court decided in Geduldig v. Aiello that excluding pregnancy-related conditions from coverage under disability insurance, while including coverage of prostate-related conditions, is not discriminatory. An all-female Supreme Court would never have reached that decision.
Do we lack women attorneys qualified to be judges?Gov. Jerry Brown of California dispelled that myth by appointing 42 women to state judgeships. One of those women, Rose Elizabeth Bird, was selected to be chief justice of the California Supreme Court.
Not a lack of qualified women, but the method of judicial selection, has preserved the federal bench as a male domain. That process complex and decentralized, is encumbered with many of the same barriers which blocked women during Carter's search for cabinet and sub-cabinet appointees.
Selection criteria tend to favor men.
A double standard prevails in applying the selection criteria.
Primarily men - the "old boy network" - make the selections.
Certain selection criteria have the effect of barring women from the judiciary. A Justice Department guideline disqualifies, except in unusual circumstances, qualified candidates who have practiced law for less than 15 years. Since women and minorities have only recently gained access to legal training in significant numbers, the "15-year rule" works to exclude women. Had the 15-year rule been applied in California, the present chief justice of that state's supreme court would not now occupy the bench.
A double standard in the application of selection criteria is another major obstacle in the path of would be women jurists. For example, all seven of the women and minority members who have been nominated to federal judgeships by the Carter administration have had previous judicial experience. But only 35 percent of the white male district court nominees and 28 percent of the circuit court appointees had such experience.
The highest hurdle for women, however, is the over-whelming predominance of men in the judicial selection process. Although the Constitution gives the president the power to appoint federal judges with the advice and consent of the Senate, the political reality of the appointments porcess, as Attorney General Griffin Bell recently acknowledged is that "the Senate nominates and the president confirms."
The senators, who until the appointment of the Muriel Humphrey consittuted as all-male club, make their selection based on a variety of factors. Many senators treat judicial appointments as political patronage - a way of rewarding campaign contributors, former elected officials and loyal staff.
Research by Susan Tolchin, director of the Washington Institute for Women in Politics, indicates that some senators have considered it polically necessary to recommend a black or a member of a particular ethnic or religious group for a judgeship, but until very recently no one has perceived a similar political need to satisfy women's groups.
At the behest of the president, a growing number of senators have set up selcetion panels to screen candidates for U.S. district court judgeships and to forward the names of the top five applicants either to the senator or the White House for final selection. Passage of the omnibus judgeship bill will undoubtedly prompt more senators to create such panels. Attorney General Bell's recent praise for these panels, however, may be premature.
Selection panels may not lok like patronage, but almost all the 15 panels established to date have merely institutionalized the old-boy network which senators previously relied upon to make judicial nominations. Even though women are a majority of the population, and the panels purport to reflect a state's diversity, 78.3 percent of these panels, members are male. Of the attorneys on the panel, 92.4 percent are men. No panel is chaired by a woman. No bar association recommended a woman attorney to fill a slot on any of the panels.
With so few women, and even fewer female attorneys, represented, it si no wonder that hardly any panels have recommended women for judicial appointments.
For example, Sen. Jacob Javits' six-member judicial selection panel, set up 8 years ago, has no women. Sen. Daniel Patrick Moynihan's recently established 10-member panel includes only one woman - a non-lawyer. Not suprisingly, the first five out of six vacancies on the district court in New York were filled by men. This despite the fact that New York has one of the highest concentrations of women attorneys in the country as well as a very active women's bar.
By executive order last year, President Carter created nominating commissions to screen candidates for U.S. appeals court judgeships. These panels, made up largely of early campaign supporters, include lawyers and non-lawyers alike. Although the Carter administration speaks of seeking for qualified women and minorities to appoint to the bench, it did not require its hand-picked panels to search out members of these groups for consideration. None of Carter's initial 10 panels is chaired by a woman. And while 73 percent of the male panelists are lawyers, only 36 percent of the women panel members are attorneys.
One way of significantly increasing the chances for qualified women and minorities to be appointed would be for the Carter administration, which is currently revising its executive order setting up the nominating panels, to include a requirement for searching out candidates from groups tradionally overlooked in the selection process.
Even after an individual has been selected by either a senator or the White House as a potential jurist, the male-dominated screening process continues. The name is sent to the 14-member American Bar Association Committee on the Federal Judiciary. Although not affiliated with the federal government, this group nonetheless has been given the power to evaluate the legal qualifications of all designees. The committee, which takes great pride in having reviewed more than 1,000 individuals over a 25-year period, lost its all-male status only recently when a woman was appointed by the president of the ABA.
In 1977, the Carter administration called upon the National Bar Association, a black group, to review the qualifications of judicial candidates. Apparently no one at the White House had thought to ask a women's bar group or a legal panel of representatives from women's rights organizations to conduct similar reviews.
Thus, we see a combination of restrictive criteria, apparent double standards and the male-dominated selection process perpetuating in essentially white male judiciary. The omnibus judgeship bill gives the administration and the Senate an unparalleled opportunity to redress this imbalance.
Women's groups, such as the National Women's Political Caucus, and other public interest groups are vigorously lobbying on these appointments. They are acutely aware that these lifetime appointees will be making law on civil rights and women's rights issues for years to come.