What should we think about the justice system, the retirement of Anthony Kennedy, and the nomination of Brett Kavanaugh? Or put another way: Why not a Native American on the court?
Should we start this with a story? Or the numbers?
A few weeks ago I was interviewing the attorney and playwright Mary Kathryn Nagle about her work. Her amazing plays merge Indian history and law with contemporary Native issues. There is often a character, an attorney and Native woman, who argues before the Supreme Court. But I messed up. Instead I asked her about a character, a young Native woman who becomes the first Associate Justice serving on the Supreme Court.
“Which play are you talking about?” Nagle responded. Then it hit me: None of her plays had that character. I was projecting beyond her fiction.
“Now I need to write that play," Nagle quickly said. "I think that would be an amazing play. To write a play where she's the first Justice. Why not? 'cause then it begs the question, 'Why not?' Why not? I mean you look at the whole history of this country and how integral tribal issues have been. Why wouldn't there have been one by now?”
Why not? That is the question that should be asked when ever there is a vacancy on the Supreme Court. And for judicial openings in U.S. district courts, U.S. courts of appeals, and U.S. Court of International Trade, as well as the Court of Claims, U.S. Customs Court, and U.S. Court of Customs and Patent Appeals.
Now some numbers.
Over the next few weeks tribal advocates are scrapping every bit of data about Judge Kavanaugh and his thinking as a lawyer and a judge. This is a process for every nominee so that tribes and tribal organizations can give their best assessment to interested members of the Senate. He has said his “first judicial hero” was the late Chief Justice William H. Rehnquist.That says a lot. Rehnquist was a destructive force when it came to federal-Indian law.
Nonetheless, if confirmed by the Senate, Judge Kavanaugh will be the 114th person to serve on the Supreme Court since 1789. It’s difficult to count federal district and appellate court judges through history (partly because the system has evolved,) but today there are 874 article three judges, those found in the Constitution with lifetime tenure.
The only active Native American on the bench is U.S. District Judge Diane Humetewa, Hopi, in Phoenix. She is one of three Native American judges in history. When she was confirmed by the U.S. Senate in 2014, there was a lot of optimism that more Native American judges would follow.
As attorney Chris Stern, Navajo, told Indian Country Today at the time: “Let’s hope Diane’s confirmation is just the start of a slew of Native American federal judges. There is still a massive lack of representation of Indian judges in the federal courts.”
That massive lack of representation remains. So no slew yet.
Bert Brandenburg, executive director of the non-profit Justice at Stake organization, also said at the time that justice is best served when judges reflect the broader society.
“Increasing representation of Native Americans on the federal bench is especially important because federal courts have an outsized authority in defining what’s known as federal Indian law,” he said. “Native American people and tribal entities appear as parties in federal court proceedings at far higher rates than do non-Native Americans. Given this picture, the current lack of any active federal judges who are Native Americans is absolutely appalling.”
Of course, it could be argued that President Barack Obama might have had better success after the death of Antonin Scalia had he nominated Humetewa to the Supreme Court instead of Merrick Garland. At least Humetewa had Republican champions. Then again Senate Republicans were refusing to hold hearings on any Obama nominee. So perhaps not.
There are 874 judges and 1 Native American, that works out to 0.11 percent. (Native representation in Congress is three times that number.) But at least it’s ahead of the zero percent for the Supreme Court and federal appellate courts. State courts (like state legislatures) do a little better. The American Bar Association reports 13 Native American judges serve in state courts, .091 or just under one percent. (My favorite list: The names of every judicial nominee who was ignored or rejected by the U.S. Senate, including Arvo Mikkanen.)
At least the bar association has recorded a number. A 27-page report on the Judicial Gap published in 2016 by the American Constitution Society doesn’t even mention Native Americans and when it cites data for defendants or trial judges, American Indians and Alaska Natives are rolled into the every popular, “other” category.
What’s particularly interesting here is that this report represents what the Brennan Center for Justice calls “the most complete picture to date of the composition of our state courts, and the message is clear: There's a lot of work to do until state benches are as diverse as the people they serve.”
A few years ago Robert O. Saunooke, Eastern Band of Cherokee, wrote in The Judges’ Journal about the issue of Native disparity on the bench. “An entire culture — America’s first culture, as multifaceted as it was and is — is not represented on the federal bench,” he wrote. He said there are more than 5,000 Native American attorneys. “No other group appears more frequently in the federal system than Native Americans. That reality has long been built into the system by federal laws. More is needed than simply promoting role models and building confidence in the justice system.”
One route to the bench starts with those who clerk for judges, especially those who serve the Supreme Court. Starting earlier this month, Tobi Merritt Edwards Young, a Chickasaw tribal citizen, is doing just that. She is clerking for Associate Justice Neil Gorsuch for the next year.
According to a news release from her tribe, “Young is thought to be the first enrolled citizen of a Native American tribe to serve as Supreme Court clerk.” As she says: “I hope that if other Chickasaws read about my experiences, they will recognize that nothing stops them from pursuing any dream that they have too. Somebody from where they are from is going to be working every day at the Supreme Court, and there’s no reason that there shouldn’t be many more to come.”
Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports