In the early 2000s, the NFL was facing a diversity crisis.
The League is majority-minority. Seventy percent of its players are black. However, at the time, only two head coaches were black. This happened despite the fact that studies showed minority coaches were wining more games but getting fired more frequently.
After the 2002 season, when Tony Dungy and Dennis Green were fired from their positions with winning records, the NFL created the Rooney Rule.
The Rooney Rule states that NFL teams must interview at least one minority candidate for any head coach or general manager opening. You see, not only were minorities not getting hired, they weren’t even being considered for top spots.
Today, Governor Mike Pence selected Geoffrey Slaughter, a white man, as the next Indiana Supreme Court Justice. We’ve known Governor Pence was going to select a white male for a couple of months.
Why? Because he was legally permitted only to consider white males.
With this lack of diversity on our state’s highest court, we need to ask ourselves if it’s time for Indiana to adopt it’s own Rooney Rule.
Before we get too far into this, it’s helpful to have a primer on the nominating process in Indiana. Try not to fall asleep as we speed through this part.
Indiana is one of 24 states in which the Supreme Court is appointed, rather than elected. The Governor makes the appointment, but the process starts way before him, through the Judicial Nominating Commission.
The Governor selects appointees to the Supreme Court, Court of Appeals, and Tax Court from a list of three finalists provided by the Commission.
The Commission can’t just choose anyone, like the President can do for federal appointments. The JNC has to choose from applicants. That’s right, if you want a seat on the Hoosier High Court, you have to apply. Check listings on Monster.com.
The Commission weeds through the applicants, and brings in semi-finalists for public interviews. Their vote on the final three members is also required to be public.
The members of the Commission. One is the Chief Justice of the State Supreme Court. Three are appointed by the Governor. And three are appointed by a vote of attorneys in the appellate district.
Remember this, because it will become important later: five of the seven members of the Commission are males. All seven are white.
Since 1985, there have been 11 vacancies on the Indiana Supreme Court. Three JNC candidates for each opening means there have been 33 finalists from which governors could choose to appoint to the court (33 finalists = 31 individuals, as both Geoffrey Slaughter and Betty Barteau were nominated twice).
Here’s the diversity breakdown of those finalists:
The amazing fact is that both African American finalists for the position have been appointed: Myra Selby by Evan Bayh in 1994 and current Justice Robert Rucker by Frank O’Bannon in 1999. Only two women (Selby and Rush) have been selected.
This year was the first time since 1996 that no women were among the three JNC finalists. There was also an all-male finalist group in 1985, when former Chief Justice Randy Shepard was appointed.
So, you end up with a five-member Supreme Court with only one woman and one African American. There is also only one African American on the Court of Appeals and five women (out of 15). The sole Tax Court judge is a Caucasian female.
If you’re shocked by these proportions, you probably forgot the important note about the lack of diversity on the Judicial Nominating Commission. Presently, all members are white and only two are female. I could not find data on the past make-up of the JNC.
I want to be very, very clear that I am not accusing any individual of racism or sexism. I believe these officials, the Governor, and the law community as a whole recognize and want to fix the diversity issues facing the profession. These issues not only complicate the governor’s selection, but they make the whole nominating process more difficult. For example, there were no minority applicants for this particular vacancy. Only seven of the 29 applicants were women.
The problem just doesn’t start at this, the highest level of the law. It starts much sooner in our educational system and continues throughout the profession.
Indiana created a study commission in 2002 to look at diversity issues in the judiciary. It found that back then, only 4.5% of law associates and 1.7% of partners at Indiana firms were minorities. Much more recent national reports show the percentage of minority associates is now 22%. Indiana generally lags behind the national averages.
Whether you are addressing diversity issues in government, the corporate world, or sports, you have to acknowledge that there is a pipeline issue.
So if the diversity starts in law school, will a Rooney Rule really help?
I believe it could.
It has worked for the NFL. While black coaches and executives are still underrepresented, there are significantly more than there were 13 years ago. There is some push to improve the rule by including coordinator positions. The NFL also may extend it to female executives.
An Indiana Judicial Rooney Rule work like this: the JNC would be required to include at least one racial minority and one female among the finalists for any Supreme Court, Court of Appeals, or Tax Court vacancy unless there are no such applicants.
With that type of requirement, I guarantee we will never see another year like this, where no minority candidates applied. The opportunity to be considered for such an appointment would be too great to pass up.
Since most Supreme Court finalists come from the Appellate level in Indiana, the requirement for all JNC vacancies to consider minority candidates even puts us ahead of the NFL’s rule, which does not currently apply to assistant coaches. As more young minority lawyers and judges ascend to the appellate level, the likelihood of one of them being selected to fill a Supreme Court vacancy will increase.
Additionally, the knowledge that they will get a fair shake at the highest levels of law could encourage more young minorities to pursue the occupation.
Some may balk at the perception that this is affirmative action, but there are no quotas here. It’s just a recognition that there may be systematic flaws and biases that need to be addressed.
If we are to continue the merit system for appointing Hoosiers to the bench — and I believe we should — we need to take steps to ensure all candidates are judged based on their merit.