Rules for federal court procedure are written by almost all white men

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Behind every court procedure, whether civil or criminal, are carefully devised rules for judges and other court actors. The rules are embodied in Federal Rules of Practice and Procedure. Those in turn are written by specially selected committees, which have have been more than 80% white men. Is that a problem? Brooke Coleman, professor of law and associate dean of Research and Faculty Development at the Seattle University School of Law, joined Federal Drive with Tom Temin for more details.

Interview transcript:

Tom Temin: Miss Coleman, good to have you on.

Brooke Coleman: Thank you. It’s good to be here.

Tom Temin: Tell us about these committees. Where do they come from? Who appoints them? And are they paid and standing? Or how do they work, first of all?

Brooke Coleman: Yeah, these are actually very prestigious committees. The chief justice makes the appointments. And it all comes from this statute that came into being in 1934, which gave the Supreme Court the power to create the Federal Rules of Procedure for how the courts would actually function. So Congress delegated this duty to the Supreme Court, and the Supreme Court quickly delegated it to a committee of specialists. So they’re federal judges, they are attorneys, there are academics. And basically what they do is they write the rules for how procedures work. So let’s say you are an employee, and you think that you have been discriminated against on the basis of race. And so you go into federal court to sue under Title VII for that racial discrimination. This committee writes the rules of things called discovery which allows you to figure out what information you can get from your employer, what information they have to produce. If you go to trial, then you will have to get things in through evidence, right? You can see that on the TV shows that we watch. So where objections are made on the basis of evidence, some hearsay, things like that, the evidence rules committee is the committee that makes those rules. So these are very powerful committees for our day-to-day life in federal litigation if we’re doing federal litigation, but we don’t know very much about them, because they’re very clandestine.

Tom Temin: So that means that they don’t follow the administrative procedures of rulemaking in the executive branch where it’s open for public comment, and there’s a period and the agency can modify what it decides to do and so on. None of that they just make the rule, and it happens?

Brooke Coleman: That’s a really good question. They actually do it for, initially, for the first 40 or 50 years, that is actually how it worked. It was a very smoke-filled room, closed-door kind of thing. There were no minutes of the meeting, nothing was public. But starting in the ’70s and ’80s, there was some pushback on that. And so they opened up their process. So it kind of is modeled off of the administrative law situation, except it’s just not as stringent. So they do send the proposals out for comment. They are made public. People do testify. I’ve testified against rules before. So it is a little bit more open than that. It just tends to be something that folks don’t pay as much attention to. The defense bar started to pay attention probably a couple decades ago. And now the plaintiffs bar is starting to pay more attention. But it is something that has kind of gone under the radar.

Tom Temin: First of all, how many committees are there? Are there dozens of them? Do they come and go?

Brooke Coleman: Yeah, it’s great. Actually, there are a number of committees and different things that the chief justice appoints. He, for example, appoints the judicial panel and multi-district litigation or the FISA courts, some things that your listeners might have appreciated. But for this particular issue, there are only six committees that are responsible for drafting the rules. There’s a standing committee that sits over five other committees: the appellate, the bankruptcy, the criminal, the civil and the evidence committees. And they are appointed by the chief. They have anywhere from eight to 15 members on them, depending on which committee, and individuals are appointed for terms of three years. They tend to have two-term limits, but the chief judge will extend those if he sees fit. And they stay in business. They have one chair who is a federal judge and then a reporter. The reporter is the only person who is paid a nominal amount. That’s usually an academic member who writes up the rules, kind of keeps the minutes, that kind of thing.

Tom Temin: So it’s a fairly prestigious thing to be on one of these committees, sounds like.

Brooke Coleman: Oh, it’s such a prestigious thing to be on these committees. I mean, if your listeners are familiar with what’s happening in the Supreme Court right now, Justice Alito, Justice Roberts, Justice Gorsuch, and new Justice Coney Barrett all served on the Appellate Rules Committee before they were appointed. It’s kind of a place–oh, and I think Justice Kavanaugh as well. It’s a place where people go to be prestigious, and then they move on to bigger things.

Tom Temin: Sounds like the old Trilateral Commission for the courts maybe or something like that. We’re speaking with Brooke Coleman. She’s professor of law, and the Associate Dean of Research in Faculty Development at the Seattle University School of Law. And what did you discover when you looked at the makeup of the committees?

Brooke Coleman: So it’s really interesting. I mean, historically, the committees were very white and male. And I don’t think we should be surprised by that, given the legal field and how limited it was and who could be a lawyer and who could be a judge and things like that. But I think what’s striking is that currently it’s still very white. It’s less so male than it was. Historically, if we look over time, aggregating all the committees, they were 94% white. They are 92% white now. So you have six committees of people and 92% of the members are white. It’s just incredibly striking. It’s still fairly male-dominated as well. Men make up 60% of the committee. But when we have women added to the committee, they tend to be white women. So out of the 24 women who are serving on the committees right now, across all six committees, 21 of those are white women. So women of color are really grossly underrepresented on these committees.

Tom Temin: And aside from the fact that there are growing numbers of female and lawyers of color, is there any practical effect on the rules of having this particular makeup?

Brooke Coleman: I argue that there are. I argue that there are problems with respect to this on three different axes. First, I think the lack of representation on the committee is problematic from a legitimacy standpoint. I mean, the folks who are using the federal courts do not look like the people who are making the rules for how these courts work. So even just looking at it as an external matter, I think it really brings to question the legitimacy of the body. The second thing is that all the social science studies that we have, all the work that we’ve done to look at decision-making, both within and without the legal field, shows us that when you have more diverse bodies of individuals making decisions, those decisions tend to be better and more accurate and more thoughtful. And this isn’t to say that I think that the committees are aggressively, manipulatively trying to do terrible things to women and people of color, it’s just that they tend to have blind spots because of their lived experience, and that that keeps them from seeing certain things that might be useful in the rulemaking process. Finally, a problem I have with it is just that while lawyers have done a lot of work to create more equality for women, and for people of color, the legal profession itself has a really dark history of exclusion of women and men of color from the profession over time. And this is an area where I think that a lot of us are calling for more aggressive action with respect to how we remedy that history. And this is an area where I think it’s an easy fix, and something that would be incredibly impactful.

Tom Temin: Can you think of a particular rule or situation where it might be written differently, to different effect, if more people have different diverse backgrounds had had a say in the creation of that rule?

Brooke Coleman: Yeah. So I think it’s kind of a tricky question, because we just don’t know, right, until we have more people of color, or women on the committees. But one thing that I have written about in the past is that your experience litigating also impacts how you think about these rules. So when we tend to have these all-white male committees, they tend to be also from a certain echelon of legal practice. And so very defense-minded, not a lot of plaintiffs’ attorneys. And I wonder–you cannot tokenize or essentialize people too much. But if you had more women and people of color on these committees; for example, they just passed discovery rules in 2016, that, you know, not to get too far in the weeds, but require that the court look at proportionality. How much is this going to cost, versus how much are you going to get? It’s kind of a cost-benefit analysis, which from an administrative law perspective, should make everyone shudder, because once we start doing that, it depends on how we value costs. What is a cost? What is a benefit? And I think if you had more diverse voices on the committee, you would have a really different discussion around that rule and what the impact might have been. Now they heard that when they proposed the rule, and they went out on their tour to talk about the rule, but it’s different to hear it from constituencies than it is to hear it from individuals who are sitting on the committee.

Tom Temin: Well, can anything besides John Roberts make any difference in this at this point? If the Supreme Court appoints these people, and it’s the chief justice that is in charge, it would have to be John Roberts, I would think, to start appointing more people that are different.

Brooke Coleman: Yeah, I think that’s exactly right. I mean, there is this thing where of course, Congress could step in, because they delegated this authority. They could step in and change how the appointments are made. I think we know that that’s never going to happen, practically speaking. And so I have tended to focus my energy on Chief Justice Roberts. I’ve talked to some of the office staff and the rulemaking committee, and they’re aware of this issue. One of the things they do is they send out a call for nominations to all of the Courts of Appeal, which is great. That’s great to go to the experts to see if they have any suggestions to who to add to this committee. But 83% of the Court of Appeals judges are white and 74% are male. And it’s not–again, I don’t think anything malicious is happening here. I think it’s just your network. And you know who you know, and therefore, you’re missing out on a body of individuals. So I do think it’s incumbent on the chief to think about how he wants to solicit his nominees for these very prestigious positions. And I think opening the door to some other affinity groups or other folks who could feed him names would make a big difference in that regard.

Tom Temin: In the big cities, they call them white shoe law firms. It sounds like more than the shoes are mostly white. Is it changing at that level over time?

Brooke Coleman: No. In my other life, I also look at feminist perspectives on the law firms. Yeah, that’s also fairly bleak. The hiring in some of these big law firms, the white shoes that you’re talking about, the diversity has increased there, but their retention is problematic. They just are not retaining. And there’s all kinds of reasons for that, one of them being mentorship and networking and things like that as well–these kind of soft reasons for why people are not succeeding. But yeah, women are still they’re graduating from law school at rates near 50%, a little over 50%, yet, they’re still only 20% of equity partners. So there’s a long way to go in these big firms as well.

Tom Temin: So really, there’s a grassroots effort, to use the trite term, that has to happen before we could see change the rules level and in how courts operate nationally.

Brooke Coleman: Yeah, so I think it’s interesting–you can look at–one of the things I look at in my article, is this question of, does the chief have a pipeline? Does he have the judges or the individuals of color and so forth that he needs in order to make these appointments? And the answer is he does. So even though we know that our federal judiciary and our big law firms are not representative of the general public, these committees are even less representative than that. So for example, there are 13% of our federal judges are black, yet only, I think, four black individuals are serving on all these committees. So 33% are women, and yet we know we’re not looking good there. Latinx folks are 5% of the bar, and 9% of federal judges, but they’re only 2% of the committees currently. So even though there is this pool that is more diverse–that isn’t as diverse as we would like it to be, I guess. Even from that pool, he’s not pulling the right people. I think you’re right, though. This is something that is a constant conversation. I’m just totally energized by it. Given the Black Lives Matter movement, and a lot of the discussions that are happening in the corner offices of these law firms, I think they’re taking this more seriously than they ever have. And I’ve seen some real movement in that. And I think that’s really encouraging.

Tom Temin: Brooke Coleman is professor of law and the Associate Dean of Research and Faculty Development at the Seattle University School of Law. Thanks so much for joining me.

Brooke Coleman: Oh, thanks so much for having me. I really appreciate it.

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