Professional Diversity and the Court of Appeals

August 1, 2021

Via Email

Dear Leader Herring and Chairman Edwards:

We write to express our support for increased professional diversity on the Court of Appeals. Having a fully-staffed Court and an automatic right to appellate review are critical for a well-functioning legal system, and improving professional diversity on the court is important for protecting the legitimacy of the court system and improving judicial decision-making. We urge both the House of Delegates and the Senate to appoint candidates who have career experience as public defenders, legal aid, or civil rights attorneys.

Over the past two years, the General Assembly has made an incredible impact in the lives of ordinary Virginians. These reforms can be minimized, if not completely eliminated, by a decision of the Court of Appeals(1).  It is critical that the people appointed as judges to the Court of Appeals over the next few weeks can live up to the spirit of the legal reforms the General Assembly has passed and will not undermine them. 

Unfortunately, this fear is not simply in our imaginations. Even since July 1,  trial judges throughout the Commonwealth have attempted to undo the reforms of the past two years or interpret them in a way that renders them meaningless. To further the purposes of the civil and criminal legal reforms recently passed by the General Assembly, judges must understand the people and communities those reforms were intended to protect.   

Professional diversity is one important way to ensure that the judges of the Court of Appeals understand the intersection of the law with the lives of disadvantaged people. Unfortunately, for many years our appellate courts have suffered from a lack of diversity in many respects. Seven of the ten current judges worked as prosecutors or in the Office of the Attorney General. None of the current judges spent their careers as public defenders, legal aid lawyers, or civil rights lawyers.

The overrepresentation of government lawyers, and the under representation of attorneys who fought against the persistent expansion of government power to infringe on the rights of poor people and people of color, is a problem endemic to courts across the country. The Biden Administration has followed through on its promise to increase professional diversity by already appointing a historic number of public defenders and civil rights lawyers to the federal bench(2). Both the Center for American Progress(3) and the CATO Institute(4) have written reports in recent years that also highlight the lack of professional diversity at the federal level. 

Fortunately, there are applicants for the Court of Appeals who have spent an important part of their careers, if not their entire careers, representing indigent defendants. Throughout their careers, these attorneys have witnessed first-hand how even seemingly minor changes in the law can have immense, oppressive consequences to the lives and liberty of ordinary Virginians. With the meaningful reforms you have passed in all areas of the law, criminal defense and civil rights lawyers will fortify and protect the tremendous progress Virginia has made -- just as they sought to protect the vulnerable and underprivileged as advocates. 

Even if every open position went to someone with substantial experience in criminal defense, legal aid, or civil rights, we would still not achieve professional balance on our Court. We hope the General Assembly will at least start to address the imbalance in professional diversity this year, and certainly not make this imbalance worse by appointing more former prosecutors, attorneys general, or other government lawyers to the bench.

Thank you for your consideration of these matters and your commitment to improving our legal system in the Commonwealth. We are happy to meet with you or any other members of the General Assembly to further discuss these matters.

Sincerely,

Justice Forward Virginia

cc: Members of the Senate 

Members of the House of Delegates

1. See, e.g., Hill v. Commonwealth, 297 Va. 804 (2019) (permitting officers to approach and seize people for reaching while inside their car in minority neighborhoods. This case demonstrates how our current judges and justices permit police to stop and frisk people of color absent suspicion of specific criminal activity being conducted, or about to be conducted, and with no context for how these types of stops affect minority communities and its citizens) and Church v. Commonwealth, 71 Va. App. 107 (2019) (holding that the disclosure of exculpatory evidence during the second day of a jury trial did not violate Brady v. Maryland. This case demonstrates how the current judges of the Court of Appeals do not understand the defense function and how an accused person would use evidence at trial. This opinion also incentivizes late disclosure of exculpatory evidence by prosecutors).  

2. Melissa Quinn, “With judicial picks, Biden seeks to address disparity in legal experience of federal judges,” CBS News (June 23, 2021), available at https://www.cbsnews.com/news/biden-judicial-nominees-public-defenders/

3. Maggie Jo Buchanan, “Pipelines to Power: Encouraging Professional Diversity on the Federal Appellate Bench,” Center for American Progress (August 13, 2020), available at https://www.americanprogress.org/issues/courts/reports/2020/08/13/ 489312/pipelines-power-encouraging-professional-diversity-federal-appellate-bench/

4. Clark Neily, “Are a Disproportionate Number of Federal Judges Former Government Advocates?” CATO Institute (September 18, 2019), available at https://www.cato.org/study/are-disproportionate-number-federal-judges-former-government-advocates