Minority Representation in the Judiciary: What More Needs To Be Done?

Editor’s Note: The views expressed in this article do not necessarily reflect those of the ISBA or the Bench & Bar Section as a whole.

I graduated from law school in 1994 and soon after began as an assistant public defender with the Cook County Public Defender’s Office. I was fortunate to have practiced before Judge Lynne Kawamoto, the first female Asian-American to serve in the Illinois state courts. While primarily practicing in Cook County, I appeared before some Black and a few female judges. Early on in my career, I was exposed to what is possible.

The state and federal bench have become more diverse since 1994. We can take pride in these advancements, but there is still much work to be done.

One bright spot for Illinois is the Illinois Supreme Court, which has become one of the nation’s most diverse state supreme courts, with a majority of female justices and 43% justices of color.¹ Another is the substantial progress toward judicial diversity in Cook County. But other circuits appear to have made limited advancement. I use the term “appear” because there is little data on the diversity of the state courts at the trial level, which is common.

Broadly speaking, the data available tends to focus on federal courts and state supreme courts. However, more than 90% of legal matters begin and end at the state trial court level.² We need to gather data about the diversity of our state trial courts.

Data-driven diversity

In the business world, there is an aphorism, “We measure what we treasure.” This means metrics are essential for assessing the effectiveness of operations.³ Without data, we cannot effectively improve judicial diversity. Data allows us to see where we have been and how far we have come. Data also helps us think more clearly about the problems and how to address them.

Collecting and analyzing data on the Illinois judiciary can promote judicial diversity. Data can demonstrate what works and where more work is needed. Illinois courts should collect data on the current demographics of all sitting judges in Illinois as a first step. A necessary follow-up would be the consistent collection of demographic data on attorneys evaluated by judicial evaluation committees, including their ratings as well as the demographics on those applying for associate judgeships and circuit court vacancies, along with the outcomes of those appointments. This data must be available to researchers, civic organizations, and the public.

Does diversity in the judiciary matter?

Many organizations, such as the Conference of Chief Justices, the National Center for State Courts, and the American Judicature Society, publicly support judicial diversity, and many of them have also publicly expressed concern about the lack of diversity at the state and federal court levels.⁴ Illinois-specific survey data on how Illinois judges at every level perceive diversity would be invaluable. Are there differences between how diversity on the bench is viewed in different parts of the state? Given that judicial selections take place locally (within the circuits), having more granular data would be key.

However, there is a growing resistance to diversity efforts. Worse still, some research suggests that Americans doubt the impartiality of minority judges.⁵ These perceptions must be actively challenged within the legal community and civil society. A perception that judges from underrepresented communities cannot be impartial represents a stereotype. Judges who look like those who appear before them or have similar backgrounds inspire confidence in the system. This impact can be subtle, influencing how questions are framed from the bench.

For instance, a judge may ask, “Sir, do you have a matter on the call this morning?” as opposed to “Good morning, counsel. Which case are you here on?” While the first question is not inherently rude or offensive, it may carry implicit biases because it suggests the individual may have no reason to be present in the courtroom. As a brown man, I have experienced this at least a few times in my career. The white men in the courtroom were presumed attorneys, and I was not. Female Muslim attorneys who wear the hijab (a head cover worn for religious purposes) have faced similar experiences.

The issue also affects how litigants feel about the judicial system as a whole. Seeing judges who look like them, whose “unique” names are recognizable to minority members of the community, as well as those who are women, Muslim, Hindu, Sikh, LGBTQ+, or have other immutable characteristics is powerful. In the long run, a judiciary that resembles the community it serves will gain greater legitimacy than one that does not.⁶

Judges from diverse backgrounds, particularly from communities historically discriminated against in our society, often understand better that a failure to protect democratic processes and institutions can result in thwarting the will of the people.⁷ For example, in Florida, voters passed a constitutional amendment that enabled individuals convicted of felonies to regain the right to vote after serving their sentences. The state legislature then passed a law that made payment of all fines, fees, and court-ordered restitution a requirement before being able to vote. The law was challenged as an unconstitutional poll tax, but the courts ruled against the voters. As a result, the courts “effectively prevent[ed] the participation of hundreds of thousands of people that Floridians had voted to enfranchise.”⁸

Finally, diversity in the judiciary is long overdue and should be considered a matter of rights and representation.⁹ The Fourteenth Amendment guarantees due process and equal protection of the law to all people, and this is widely understood to include the right to an impartial judge. Some scholars have argued that the impartiality mandate should encompass “structural impartiality of the bench as a whole,” and this may be understood to exist when “the judiciary as a whole is comprised of judges from diverse backgrounds and viewpoints.”¹⁰

Judges and umpires

Those who believe that diversity in the judiciary is not an important goal often cite the Fourteenth Amendment’s impartiality mandate. To illustrate the point, some use the analogy of an umpire. According to this line of thinking, judges are like umpires; their job is to simply call balls and strikes. It does not matter what the umpire’s background is, what immutable characteristics they possess, or what life experiences they bring behind the plate. So long as they are qualified to be an umpire, the right calls will be made.

This analogy is flawed. It overlooks the complexities of an umpire’s job. Many close calls must be made in a game. Every pitch is not clearly in or clearly out of the strike zone. Not every call is black and white. Similarly, there is discretion and judgment involved in making decisions on the bench; lived experiences matter.

A dearth of qualified candidates: Fact or fiction

There is a perception that there are few “qualified” minority attorneys to fill the judicial positions. Several years ago, I attended an NAACP candidate forum. Several judges and judicial candidates were being interviewed. The moderator asked why the judiciary in this particular circuit lacked diversity. One of the candidates, a judge at the time, said, “There are not enough qualified minority candidates.” Sadly, there was minimal follow-up questioning.

“That can’t be true,” I thought as I listened. But I had no way of knowing. The bar association in that circuit had few attorneys of color, and there was no publicly available data on how many minority attorneys resided there.

Recently, I gained first-hand experience that further underscores the implicit biases that feed the perception that there are not enough qualified minority candidates.

A few years ago, I underwent an evaluation by the local bar association’s judicial evaluation committee. The experience was both troubling and enlightening. At the time of my evaluation, I had two years of experience as an administrative law judge and 26 years as a practicing attorney. The interview before the judicial evaluation committee was pleasant. The lead investigator noted that everyone they spoke to said positive things about me. The committee had no substantive questions. The interview lasted less than five minutes. A few days later, I learned I was rated “Qualified.” I was relieved.

About six months later, I learned that another attorney in my circuit was rated “Highly Qualified.” I looked at his resume on his website. I could see that he was indeed qualified. I had no quarrel with his “Highly Qualified,” but it made me wonder what more I needed to achieve “Highly Qualified.”

I contacted the chair of the judicial evaluation committee, and I explained that I wanted to know what I needed to do to earn the “Highly Qualified” rating. The answer floored me. “I can’t tell you what else you would need,” said the chair. The conversation was polite, and the comments about me and my qualifications were laudatory. The chair noted that not enough members thought I was worthy of the “Highly Qualified” rating, and since the vote is by secret ballot, the chair had no way of knowing which members thought I was unworthy of the higher rating. The individual I was comparing myself to was a white male with half my years of experience, and I had two full years of experience as an administrative law judge.

I asked the chair for a list of all the candidates who have been rated by the bar association over the last 10 years (or whatever shorter list they had) who had been rated “Qualified” or “Highly Qualified.” I wanted to do my due diligence, research each candidate’s background from open-source materials, and look for patterns. Maybe this was an anomaly, or maybe there is a pattern. Having the data would help answer my questions. Furthermore, the bar association rules state that all findings are to be made public, so I was not anticipating the chair’s answer. “We can’t do that,” responded the chair.

When the gatekeepers of who is deemed qualified cannot share this basic information, the process's validity and integrity can be questioned. Given the slow pace of diversifying the bench, the concern over implicit biases is not unwarranted.

Pipeline of candidates

A corollary to the qualifications issue is the pipeline issue. While I disagree with the assumption that there are few minority attorneys qualified to be judges, I do see a problem with too few qualified candidates pursuing a judgeship.

I mentor attorneys. Many minority attorneys I know are extremely qualified to serve on the bench, but many worry that they are not qualified enough. After 31 years of practicing law, first as an attorney and then as an administrative law judge, I have seen excellent judges and excellent advocates. I know their self-doubt is misplaced. This “impostor syndrome” limits the number of minority candidates in the pipeline.

Another roadblock to a more robust pipeline is the lack of information on how the appointment and election process works. While some of the larger bar associations occasionally hold “So You Want to Be a Judge” seminars, it is insufficient to provide the real ins and outs of the process. Many “unwritten rules” need to be understood. More needs to be done at a systemic level to even the playing field.

Convincing qualified minority attorneys to pursue a judgeship is only part of the pipeline problem. The “unofficial” requirements create additional hurdles for minority attorneys, particularly regarding associate judge appointments. For example, circuit court judges have repeatedly told me they prefer to promote attorneys who appear before them regularly.

To be clear, this is not a legal requirement. Where one regularly practices often is dictated by economics, not residency. Many law firms, corporations, and state of Illinois attorney positions are based in or near Chicago. Attorneys often commute from Lake, DuPage, Kane, McHenry, and Will counties, for example, and may amass outstanding experience in Cook County courtrooms only to find that experience is discounted by the circuit where they reside.

The laws and rules are the same across the state. The issues of ability, experience, and temperament can be assessed without extended trial practice within the residential circuit. When asked about attorneys who, by dint of circumstance, have well-established and secure jobs in larger metropolitan areas outside of the circuit one judge said, “They should start practicing locally if they want to be appointed as an associate.” This is unrealistic.         

Another barrier to a robust pipeline of candidates is a bias against public interest and civil rights advocates.¹¹ A circuit court judge told me he did not think I could take off my advocacy hat if I were to become a judge. I asked him what he meant, and, to his credit, he was candid. He told me he knew I was involved in a lot of civic and political advocacy work, including issues involving Black Lives Matter. Could I be fair and impartial once I was on the bench?

“Certainly,” I responded. “Thurgood Marshall is one of my personal heroes, and he went from being a zealous advocate for civil rights to becoming a distinguished jurist.”

“That’s not a good analogy,” the circuit court judge replied. “The Supreme Court decides policy, and here at the trial level, we apply the law to facts. It’s different.”

Some impediments to a more fulsome pipeline are things no one discusses in public forums. Candidates may be hesitant to shine a light on these issues, and once appointed or elected, it is the rare outspoken judge who shares sordid experiences from his or her path to the bench.

Solutions

I raised several issues, problems, and roadblocks that stand in the way of attaining a more diverse judiciary. Overt bias is another concern, but it is a thornier issue. In the shorter term, we can tackle the "easier" issues, and revisit overt bias when more data is available. The following are some recommended solutions:

Acknowledge the problem. The judiciary, the bar, and civil society must tackle this issue with greater urgency and collaboration. Without the judiciary's support, solving this problem becomes significantly more difficult.

Data collection and analysis. The courts need to collect more data about themselves. That data must be publicly available so scholars, academics, activists, and individuals can review, study, and analyze it. Let’s “measure what we treasure.”

Public debate. Bar associations, the judiciary, and civic organizations need to bring the conversation to increase the diversity of the bench into the public square. Too much conversation is limited to continuing legal education or judicial meetings. We cannot move the needle on this issue until the public realizes it is an issue. The bar associations and the judiciary should consider creating a public education campaign to (1) highlight the severity of the problem, (2) explain why it should matter to the public, and (3) promote grassroots solutions to complement those crafted within the judiciary.

Reform judicial evaluations. The judicial evaluation system is flawed. As a bar leader, I see proposed fixes being discussed and good ideas in development, but accountability remains missing. There needs to be transparency. It is a tremendous responsibility to vote on who is deemed qualified or not qualified. Those votes must be taken in public.

Re-imagine judicial training. An attorney must get training and certification before becoming an arbitrator or a mediator. Judges, on the other hand, attend judicial training after being selected. Does that make sense?

The National Judicial College¹² offers a five-day, in-person training for attorneys who aspire to become judges, called “Judicial Academy: A Course for Aspiring Judges.” In Illinois, the Judicial Education Division of the Administrative Office of the Illinois Courts (AOIC) develops and delivers training for new judges and continuing education for all judges. Through a collaboration between the Judicial Education Division of the AOIC and various bar associations, training similar to the National Judicial College’s should be offered. This way, new judges can hit the ground running. Completing such pre-appointment/election training can also inform a more merit-based metric in evaluating attorneys seeking the bench.

Judicial mentorship. Mentoring works. Lawyers mentor law students. Seasoned lawyers mentor newer lawyers. Experienced judges mentor new judges. So, why not have judges mentor aspiring judges?

I have heard judges say, “So-and-so judge mentored me when I was an attorney.” I have heard sitting judges say, “So-and-so judicial candidate was my protege.” That’s wonderful. It is also a privilege.

The attorneys we need in the pipeline often do not have the personal relationships with sitting judges to be guided and mentored. To help diversify the bench, prospective candidates should be able to work with a mentor not as an ad hoc effort but as an intentional, resourced program that equitably selects candidates and pairs them with motivated mentors.

Conclusion

Illinois’ Supreme Court is an excellent example of progress. The growing number of diverse appointments is also noteworthy. Some will say, “We can’t fix this overnight.” That is true. Diversifying the bench requires dismantling systemic impediments. It requires recognizing the disparities in the pipeline, deconstructing why these disparities exist, and then collaborating to make the pipeline reflect the community. None of this can happen without open and frequent discussions about these critical issues.

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Junaid Afeef is a member of the ISBA Assembly, the Human and Civil Rights Section Council, the Standing Committee on Racial and Ethnic Minorities and the Law, and the Diversity Leadership Council. He is also a co-founder of the Muslim Bar Association of Chicago. All opinions are his alone.

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1. Amanda Powers & Alicia Brown, State Supreme Court Diversity — May 2023 Update, Brennan Center for Justice, https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-may-2023-update.
2. Natalie Gomez-Velez, Judicial Selection: Diversity, Discretion, Inclusion, and the Idea of Justice, 48 Cap. U.L. Rev. 285, 295 (2020).
3. Joan C. Williams & Jamie Dolkas, Data-Driven Diversity, Harvard Business Review (April 2022), https://hbr.org/2022/03/data-driven-diversity.
4. Natalie Gomez-Velez, Judicial Selection: Diversity, Discretion, Inclusion, and the Idea of Justice, 48 Cap. U. L. Rev. 285, 296-297 (2020).
5. Yoshikuni Ono & Michael A. Zilis, Do Americans perceive diverse judges as inherently biased? Politics, Groups, and Identities, 11:2, 335-344, (2023).
6. See Theresa M. Beiner, What Will Diversity on the Bench Mean for Justice? 6 Mich. J. Gender & L. 113 (1999); see also Edward M. Chen, The Judiciary, Diversity, and Justice for All, 91 Calif. L. Rev. 1109 (2003).
7. Brandon Hasbrouck, Movement Judges, 97 N.Y.U. L. Rev. 631, 633 (2022).
8. Id.
9. See Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts, 39 B.C. L. Rev. 95 (1998).
10. Id. at 99.
11. Josie Duffy Rice, A Judiciary Without Public Defenders Is Broken, Balls and Strikes (Mar. 3, 2022), https://ballsandstrikes.org/legal-culture/ketanji-brown-jackson-public-defender-broken-judiciary/#:~:text=I%20keep%20going%20back%20to,yet%20another%20indication%20of%20a; see also Marc Bookman, “Can Public Defenders Become Fair Judges, and Other Stupid Questions,” 51 Geo. L.J. Ann. Rev. Crim. Proc. (2022); Maggie Jo Buchanan, “Pipelines to Power: Encouraging Professional Diversity on the Federal Appellate Bench,” Center for American Progress (2021); Andrew Goudsward, “Senate confirms ACLU lawyer to NY federal court after GOP backlash,” Reuters (June 14, 2023).
12. See https://www.judges.org/.

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This article was originally published in Human and Civil Rights (August 2025, Vol. 52, No. 1), the newsletter of ISBA’s Section on Human and Civil Rights.