• New law review article says 116 of 136 committee members have been white men
• Greater diversity would influence issues committee takes on, only black member of committee says
The committee that maintains the federal rules of civil procedure is under fire for lacking gender and racial diversity.
An upcoming law review article argues that the Advisory Committee on Civil Rules’s “homogeneous composition” limits the quality of the rules and “perpetuates inequality.”
Brooke D. Coleman‘s article says that over its 82-year history, 116 out of 136 committee members have been white men. Coleman is a civil procedure professor at Seattle University School of Law.
The lack of diversity on the committee “is a microcosm of the legal profession, and it shows how homogeneous the profession remains,” Coleman told Bloomberg Law.
The legal industry has been upping its commitment to diversity and inclusion over the past several years as it continues to struggle retaining women and diverse attorneys in the profession.
A more diverse group would influence what issues the committee addresses, A. Benjamin Spencer, a professor at the University of Virginia in Charlottesville, told Bloomberg Law.
Spencer is the only black member of the 13-member committee.
He tweeted May 17 in response to Coleman’s article that he was dismayed that “such an important process is not more inclusive of the diverse population affected by the Federal Rules.”
Spencer explained to Bloomberg Law how he thought a more diverse committee would affect the committee’s work.
“Members of traditionally underrepresented and disadvantaged groups may have different views about what issues warrant the committee’s attention,” he said.
“A more inclusive process might bring in more voices that could call various special interests to account and advocate for amendments that make the system more fair and access-promoting overall,” Spencer said.
And the committee members—while experts—aren’t apolitical, the article says. The civil rules aren’t neutral, Coleman said.
“They represent value judgments about how the risk and reward of litigation will be allocated,” she said.
If a group is homogeneous, it doesn’t produce the best product, Coleman said.
The group’s composition could change soon.
There are six vacancies coming this year that Chief Justice John G. Roberts Jr. must fill, Spencer said.
Of those, five are men and one is a woman, Judge Joan N. Ericksen of the U.S. District Court for the District of Minnesota, the Administrative Office of the U.S. Courts confirmed.
The solution to the problem is simple, Coleman said. Roberts “needs to appoint different people to the committee,” she said.
“I will be interested to see whom Chief Justice Roberts appoints to the committee this time around,” Spencer said.
The Administrative Office of the U.S. Courts declined to comment on Coleman’s article.