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Judge Pick With Disability Raises Hopes for a Group Often Unseen

Oct. 7, 2022, 8:30 AM

The nominee for a Washington federal court would be one of only a handful of federal judges open about living with a disability, expanding President Joe Biden’s push to make the judiciary more accurately reflect the US population.

Jamal N. Whitehead, a Seattle trial lawyer who uses a prosthetic leg, is the Biden administration’s first judicial nominee with a known disability. He is awaiting a Senate committee vote on his nomination to the US District Court for the Western District of Washington. Judges with disabilities say his nomination is part of setting the composition of the federal bench and erasing a stigma attorneys have historically tried to hide.

“Jamal Whitehead is an excellent example that there are no limits in this country on what people with disabilities could obtain and this is also important because he’s a very visible example, but he’s not the only one,” said First Circuit Judge Bruce M. Selya, who is legally blind.

Biden has placed an emphasis on diversifying the federal judiciary with his picks, nominating a historic number of Black women. He has also sought out judges with backgrounds as public defenders, including Justice Ketanji Brown Jackson. Immediately after taking office, the White House sent a letter to Senators asking them to keep diversity in mind when recommending candidates for judgeships. That list included professional diversity, race, gender, sexual orientation, military status, and disability.

The number of judges with a visible or disclosed disability—including Judges David S. Tatel, Ronald M. Gould, Vanessa Lynne Bryant, and Myron H. Thompson— account for a fraction of 870 total life-tenured to federal judges relative to the general population. A quarter of US adults have a disability, according to the Centers for Disease Control and Prevention.

Adding more judges with disabilities and promoting disclosure would help courts become more reflective of the US population and add an important perspective to cases, advocates and judges said, but doing so can be difficult when disability isn’t something judges and lawyers report.

Bryant, who said she disclosed that she is legally blind even though disclosure isn’t required for federal judges, said diversity and competency of the bench are correlated.

“We decide Americans with Disabilities Act cases all the time,” said Bryant, senior judge for the District of Connecticut. “So to interact with someone experiencing disability, especially on the bench, raises it beyond the theoretical level, the palpable level, the intrinsic level, which is beneficial.”

Little Disclosure

Part of the difficulty in increasing disability representation on the federal bench lies in the fact that it is a difficult category to track.

When introducing Whitehead before the Senate Judiciary Committee in September, Sen. Patty Murray (D-Wash.), who recommended his nomination to the White House, highlighted the diversity he would bring to the federal bench as the first Biden judicial nominee with a disability.

“Beyond his impeccable resume defending workers, Mr. Whitehead will also bring to the bench a critical perspective that is severely lacking on our courts,” Murray said, in reference to disability representation.

Calling Whitehead the first Biden nominee with a disability comes with a potential “asterisk,” said Chris Kang, co-founder and chief counsel at the progressive group Demand Justice who worked on judicial nominations in the Obama White House.

“Jamal Whitehead is the first Biden nominee with a physical disability that we’re aware of,” Kang said. There may be other Biden nominees who have a disability but aren’t public about it, he said.

Kang said one of the challenges of tracking disability representation in the judiciary is an absence of data. The Federal Judicial Center keeps all data on race, ethnicity, and gender but not disability.

“It is something that the Biden administration is likely cognizant of, but it’s a little bit more challenging to identify and recruit lawyers with disabilities for the federal bench,” Kang said. Recruitment and identifying people is important because there aren’t the same bar associations for people with disabilities as there are for LGBTQ lawyers or lawyers of color, he said.

‘Everybody Wants to Belong’

Disability is largely excluded from the diversity conversation in law. Historically, lawyers with disabilities went to lengths to conceal their conditions out of fear it would derail advancement.

“Everyone wants to belong,” said Thompson, a senior judge for the Middle District of Alabama who had polio as a child and still feels the effects today. Children with disabilities might hide it while growing up because they don’t want to be different, and those coping mechanisms can carry into adulthood, he added.

“Do judges probably do that? Sure. We’re human. I do it, certainly,” Thompson said.

Selya said that people are still surprised that his disability doesn’t show up in his work. “There’s no reason for it to show up in my work. My work is work,” he said. “I know that there are people presently in the system who have a disability, but none of us classify ourselves by that disability. I don’t think of myself as a disabled judge. I think of myself as a judge who happens to have a disability, just the same way as I happen to have brown eyes.”

Stigma can color the decision to disclose, especially for those on the bench before the Americans with Disabilities Act took effect, said Claudia Center, the legal director of the Disability Rights Education and Defense Fund.

“There’s just stigma instead of pride because of where they are in history,” Center said. “Now we have the people who grew up with the ADA, and Jamal is probably of the ADA generation. So hopefully he can be somebody who’s out and proud as having a disability. I’m not sure if that’s what he signed up for, but I can hope.”

The judiciary and legal industry are working to create spaces for disability representation. A judicial official said there’s ongoing discussions around developing a disability working group in the federal judiciary. Large law firms have also developed disability affinity groups to offer support and networking opportunities for attorneys with disabilities.

Increasing Representation

Representation of more judges with disabilities has the potential to inspire future judges, promote awareness of courthouse access issues, and add perspectives, the judges and advocates said.

Seeing disabled judges on the bench could be also meaningful to advocates who also have disabilities for the same reason race and gender representation are meaningful, Judge Ronald Gould of the Ninth Circuit who has multiple sclerosis and uses a wheelchair.

“It might make them feel like that path of professional experience might be open to them,” Gould said.

Whitehead’s nomination could also highlight the issue of physical access to courthouses, and other buildings that don’t have ramps and other means of access, said Donovan W. Frank, a senior judge on the District of Minnesota who has advocated for disability rights.

Advocates hope Whitehead’s nomination is just a start.

“It’s good progress. It’s important progress, but there’s still a lot more work to do,” said Kimberly Humphrey, legal director of federal courts at the progressive Alliance for Justice.

To contact the reporters on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com