Federal Rules Committees hold significant power. For example, a recent amendment to the Federal Rules of Civil Procedure that was approved by the Civil Rules Committee narrowed the scope of discovery—which of course, may affect the outcome of a case. In the rulemaking process, each Committee decides whether a proposed rule is considered and votes on whether to adopt it. While other bodies stand in the way of a rule becoming law (proposed amendments can be blocked by the Supreme Court or Congress), almost invariably a rule becomes law once a Committee adopts the rule.
This is why Professor Brooke Coleman’s article is so important. She analyzed all Committee memberships over its approximately 80-year history. She found 94% of the Committee membership has been white. 81% has been men. Perhaps the current Committees are much more representative, but Professor Coleman shows that is not the case. White people continue to constitute an inordinately high percentage of the committee at 92% and the Committees are largely male at 62%.
Professor Coleman shows that White people have been overrepresented on the Committees over time and currently. So, the Committees have been under representative and specifically in relationship to three different demographic comparisons—the US population, the legal profession and federal judiciary.
Men have also been overrepresented on the Committees over time. On the positive side, women are represented on the Committees roughly in proportion to their make-up in the legal profession and in the federal judiciary. Coleman contrasts this good news with the bad news—women of color make up only 4.6% of Committee membership in contrast with 11.9% of federal judges and 14.5% of lawyers.
As might be expected to follow, Committee leadership is also mostly white and male. 97% of chairpersons have been white and 88% men. Put in more stark terms, only 2 of 75 chairs have been people of color. Reporters—academics who take notes and do not vote, but can have influence—have largely been male and white as well. 97% have been white and 80% men.
Professor Coleman discusses why the demographics of the Committees matter. While she acknowledges that arguments may be made that Rulemaking is technical and thus, the demographics of Committee membership do not matter, Professor Coleman counters that rulemaking is not technical or neutral. In other words, whether or not particular rules are implemented can affect the outcomes of cases. The importance of this process is shown by the large number of comments and testimony on the proposed change to the scope of discovery—split largely along the lines of plaintiffs’ lawyers versus companies/defendants’ lawyers. As a result, the characteristics of Committee members, including the members’ ideology, politics, and identity, including sex and race, can affect whether a rule is adopted and thus the outcomes of cases.
In addition to describing why the composition of the Rules Committees matters, Professor Coleman discusses why the Committees have been so white and so male. She points out the history of discrimination against women and people of color in admissions and employment. She also emphasizes that the Chief Justice, who appoints members, uses a narrow nomination process.
Professor Coleman emphasizes three reasons why mostly white, male committees are problematic. First, participants in the legal system can question the rulemaking process. Second, the quality of the rules can be worse. Finally, this unrepresentative composition is contrary to the legal profession’s responsibilities to diversity and ethics. On the first point, she states as an example that criminal rules affect a larger percentage of the Black population yet Black people are inadequately represented on that Committee. For example, the Evidence Committee has never had an African-American member. On the second point, that the quality could be better, Coleman uses the established scholarship on diverse decision-making to show better decision-making is likely with increased representation.
Professor Coleman’s article is a gamechanger. She has pointed out through careful study that there is insufficient diversity on the Committees. This issue causes legitimacy concerns and, more importantly, the possibility that rules may be adopted or not—based on Committee membership—and that may determine who wins or loses, including if someone goes to prison or not.
Bringing a high level of expertise to this article—having served as the clerk to Judge David Levi when he chaired the Standing Committee—Coleman had the unique opportunity to see the process of Rules making in action and, now, can advise about what has happened and what should happen. So what now? It appears Professor Coleman may have had an effect already. Chief Justice Roberts appointed seven more female members of the Committees after her first article came out—going from 29% to 50%. What else is possible? Professor Coleman discusses the possible creation of a nomination committee by the Chief Justice. But this might have the tendency to draw from the same groups of people and create more of the same. Perhaps Professor Coleman should take the lead to help create committees to recommend people for the Committees. Diverse nomination committees will likely lead to diverse Rules Committees.