The lack of diversity on the 7th Circuit Court of Appeals – which would remain unchanged if nominee Thomas Kirsch II is confirmed to fill the current vacancy – is prompting minority groups to speak out and call upon elected officials and the judiciary to appoint judges from different racial and ethnic backgrounds.
Both the Asian Pacific American Bar Association of Indiana and the NAACP have issued statements highlighting the lack of diversity not just on the 7th Circuit but in Indiana state courts as well. Indeed, they pointed out the 7th Circuit remains the only federal appellate court in the country without a single minority judge.
Kirsch, the U.S. Attorney for the Northern District of Indiana, has been nominated by the Trump Administration on to fill the Indiana seat on the 7th Circuit. The vacancy was created when Amy Coney Barrett was confirmed to the U.S. Supreme Court.
In a letter to the Senate Judiciary Committee, the NAACP pointed out Trump has filled the four vacancies on the Chicago-based appellate court with four white individuals: Barrett, Michael Brennan, Amy Joan St. Eve and Michael Scudder. With the nomination of Kirsch, another white Hoosier is in position to join the 7th Circuit.
“But we cannot allow our judiciary to backslide now to a situation in which there is no diversity on a court which presides over 7.5 million people of color and is charged with dispensing justice in appeals relating to their civil rights and liberties,” Derrick Johnson, president and CEO of the NAACP, wrote to the judiciary committee leaders. “The Senate’s move to confirm Thomas Kirsch in the face of four recent appointments to perpetuate the segregation of the Seventh Circuit must be rejected.”
Sen. Mazie Hirono, D-Hawaii, cited the NAACP letter during Kirsch’s confirmation hearing Nov. 18. She also noted former Indiana Justice Myra Selby was tapped by former President Barack Obama to fill the Indiana vacancy on the 7th Circuit for which Kirsch has now been nominated. Selby would have been the first African-American and the first woman from the Hoosier state to sit on that appellate court, but her nomination was blocked by Senate Republicans.
“I am particularly concerned that this committee is holding a hearing for the 7th Circuit nominee who is further entrenching the lack of diversity that is characteristic of President Trump’s judicial nominees,” Hirono said.
However, the APABA-IN pointed out that problem of diversity extends deep into Indiana state and federal courts. In a statement, the bar association noted all the justices on the Indiana Supreme Court are white, even though nearly 21% of Hoosiers are people of color. Moreover, 14 of the 15 judges on the Indiana Court of Appeals are white. None of the judges on the Northern Indiana District Court are from a minority population and only one minority judge sits on the Southern Indiana District Court.
“Americans have different backgrounds, upbringings, and life experiences, and while race is only part of the story of any individual, it would be foolish to pretend that race is not a part of the story at all,” Haroon Anwar, president of APABA-IN said the statement. “A diverse judiciary can lead individual judges to see fact patterns through different points of view, which can lead to decisions that better reflect the realities of life.”
During the confirmation hearing, Sen. Dick Durbin, D-Illinois, also broached the subject of race and racism when he asked Kirsch about the George Floyd video. Floyd, an African-American, was killed in May when Minneapolis police officer Derek Chauvin kneeled on his neck for nearly 9 minutes.
Kirsch replied as U.S. Attorney it would be inappropriate for him to comment on the facts or prosecution of the case.
Durbin said he was not looking for Kirsch to comment on the case. “I’m asking you as an American lawyer, prosecutor, defense attorney. When you saw that 8 minutes and 46 seconds, what did you think?”
Kirsch responded, “Senator, any killing in the United States is tragic. It’s tragic.”
Durbin dug deeper. “Do you think we have an issue when it comes to race and law enforcement in America?”
Kirsch answered, “Senator, I think racism exists in America and I think that’s abhorrent.”
The judiciary committee is scheduled to consider Kirsch’s nomination Thursday. Democrats on the committee have been delaying the approval of nominees for one week, making Dec. 10 the earliest Kirsch’s nomination would be sent to the full Senate for a vote. His nomination might be derailed if the Senate does not confirm before the Christmas recess and Democrats are able gain control of the upper chamber after the Georgia runoff elections.
Such a situation would allow President-elect Joe Biden to make a 7th Circuit nomination when he becomes President Jan. 20.
The NAACP, echoing the ABABA-IN’s statement, emphasized the need for a diverse judiciary on that court.
“Thirty percent of the 25 million residents within the Seventh Circuit are people of color,” Johnson wrote in his letter. “It is unfathomable that this vital circuit court which hears appeals of federal cases affecting the rights and liberties of its residents has no racial or ethnic diversity whatsoever. The absence of diversity undermines the integrity and legitimacy of the federal judiciary. Judges from different racial, ethnic, and other backgrounds enrich judicial decision-making and promote trust and confidence by communities impacted by their rulings.”