Highlights from May I Approach?: Overcoming Stigma and Bias on the Path to Judicial Diversity

Last week, Alliance for Justice hosted the second conversation in its May I Approach? series, launched in July as part of our Building the Bench initiative to draw attention to the value of professional and demographic diversity for the health of our nation’s courts. The most recent conversation focused on Overcoming Stigma and Bias on the Path to Judicial Diversity, specifically how judges with disabilities and judges who are members of religious minorities are a necessary component of a judiciary that reflects the principle of equal justice under law.

Joining the panel was Justice Helen Whitener of the Supreme Court of Washington, Justice Halim Dhanidina of the California Court of Appeals, and Michael Waterstone, Dean of Loyola Law School. Justice Whitener is one of the only judges in the country who has openly declared a disability, and Justice Dhanidina is the only Muslim appellate court judge in the country. In fact, no Muslim person has ever been confirmed to a federal court.

Former House Majority Whip Tony Coelho provided opening comments and Sam Bagenstos, the Frank G. Millard Professor of Law at the University of Michigan School of Law moderated the discussion.

Coelho, the newest member of AFJ’s Building the Bench Advisory Committee, spoke about his own commitment through The Coelho Center for Disability Law, Policy, and Innovation to support individuals who have disabilities and wish to attend law school and become judges. He noted that judges are regularly deciding cases that affect people with disabilities and that interpret the reach of the Americans with Disability Act, which he authored. “I feel very, very strongly about making sure that not only people with disabilities, but from all diverse communities are considered for the courts, and that it should be a priority,” he said.

Bagenstos similarly highlighted the importance of diversity on the bench to ensure equal justice under the law:

By ensuring judges have a variety of backgrounds and life experiences, we not only improve the accuracy and legitimacy of judicial decisions, but, ultimately, strengthen the very foundation of our democracy.

Justice Dhanidina emphasized that a judge who has experienced stigma and discrimination in some form is uniquely able to recognize when someone else is being subjected to it. “You recognize it, you have those red flags, your antenna starts to go off as soon as you start to see that type of dynamic unfolding before you,” he explained. “You don’t need to be a member of the group in question, but just the fact that you are a member of a group that is in the minority or that is stigmatized helps you see that stigmatization in other contexts.”

A judge who is willing to speak up can “do a lot to help the delivery of justice under our system.” That’s important for the credibility of the judiciary, he added. “Even if a voice like Justice Sotomayor comes as part of a dissent — maybe the lone dissent on an issue — there is importance to that. Because for all those people who are otherwise alienated, they might see, ‘You know what, I have a voice on the Supreme Court! Maybe I didn’t win, but I have a voice there. There is somebody there who is representing my position and my interests.” Over time, Dhanidina noted, a dissent at one point in time can turn into a majority opinion down the road.

This is a sentiment Justice Whitener echoed in her remarks. In the court room, she uses the language of accommodation to assist with the discussion, which “helps others understand some of the other marginalizations.” She encouraged other judges to be visible about their disabilities so they can make that perspective evident at the table.

In the past, Justice Whitener felt that she had to be “strategic” about disclosing her disability, but after she became a judge, she realized it was important to use that platform. “I think it’s necessary that our judiciary and our legal profession include individuals with disabilities, and that [was] my hope when I came out with my disability: to get others encouraged to pursue their dreams, and to know that yes, you have to deal with these things, but there are some of us out there paving the path for you and hopefully it will lessen the impact on those that are following me.”

She worries that others might feel challenged by being the first in their field with a certain kind of marginalized identity. “So if you happen to be the first trailblazer with a disability, go for it! Do not have anyone tell you [that] you can’t. Show them that you can!” Throughout her career, she overcame that very kind of discouragement. “I got here by creating my path. Figure out what you want, and just go ahead and do it in spite of these negatives that are going to be coming at you.”

Both Dean Waterhouse and Justice Dhanidina discussed the importance of mentorship and encouraging law students and young professionals to pursue their ambitions and counter the negative messages they might be hearing. “Wherever you are in your professional life, there’s going to be someone you look up to,” Dhanidina said. “You should also be looking behind, to see who you can bring up with you.”

Due to technical difficulties, we were unfortunately unable to capture the entire discussion. We thank our distinguished guests for their time and wisdom, as well as The Coelho Center for Disability Law, Policy, and Innovation and the South Asian Bar Association of North America for their support for this event. To learn more about Alliance for Justice’s Building the Bench initiative, click here.