MCCA examines the unprecedented access and influence of minority attorneys in the Obama administration.
By Joshua H. Shields
Due to space restrictions, we could not report on every diverse appointee. Several appointments were pending as we went to press. This article contains the most current data available at the time of publication.
The United States is viewed as a land of opportunity; a place where everyone is equal and judged on their actions, regardless of skin color or where they came from. Although it is arguably the most diverse nation in the world, its governing class has been largely homogenous throughout its history. White, protestant, and male were the preconditions for high public office during the first centuries of American history. The erosion of this division has been slow, and the collection of individuals serving as America’s leaders often has not reflected the country’s vast diversity.
The election of President Obama was a bellwether. When asked shortly after the 2008 election whether the Obama administration would be able to accomplish each of 16 possible goals for its time in office, 80% of Americans predicted that conditions for minorities and poor would be improved, the highest percentage of any goal, according to a USA Today/Gallup poll.1 And, as this article illustrates, the administration is well on its way to delivering on its promise in this area.
Beginning with the first non-white commander-in-chief—who, along with the First Lady, are attorneys by vocation — the nation’s leaders have a decidedly more varied complexion than past administrations. The confirmation of Justice Sonia Sotomayor, the first Hispanic woman to sit on the Supreme Court, again brought diversity into the limelight; in truth, however, the diversity within the administration extends beyond these figureheads.
Sixty minority or female attorneys have been confirmed or nominated to top government counsel positions or the judiciary during Obama’s administration. The appointees include Eric Holder, the first African American attorney general of the United States, as well as several general counsel for government organizations, including Preeta Bansal, general counsel for the Office of Management and Budget in the Executive Office of the President; Julia Atkins, general counsel for the Federal Labor Relations Authority; Ivan Fong, general counsel for the Department of Homeland Security; Will Gunn, general counsel for Veteran Affairs; Jeh Charles Johnson, general counsel for the Department of Defense; Helen Kanovsky, general counsel for Housing and Urban Development; David Lopez, general counsel for the Equal Employment Opportunity Commission; George Madison, general counsel for the Treasury Department; and Willard Tom, general counsel for the Federal Trade Commission.
Willard Tom perceives that the trend toward greater diversity in the private sector also is at work in areas of public service: “Many of the motivations [to hire diverse lawyers] are the same [as in private practice]: a wider range of perspectives helps us do our jobs better, and attention to diversity helps us get the best people because disadvantaged groups–especially racial and ethnic minorities, but to some extent women and LGBT individuals as well–still tend not to have equal access to opportunities such as the ‘old boys’ network’ that often bring candidates to the attention of the people doing the hiring.”
Beyond the historic appointment of Holder, President Obama’s appointments to the Justice Department reflect the nascent importance of diversity. For the first time, the solicitor general of the United States is a woman, Elena Kagan. The deputy solicitor general, Neal Kumar Katyal, is also a minority. Some of Holder’s assistant attorneys general are, at times, as historically significant as their boss. Ignacia Moreno, the assistant attorney general for environment and natural resources, is the first Hispanic woman to serve as an assistant attorney general. If confirmed, Mary Smith will become the first Native American to hold the position of assistant attorney general for the tax division. Other notable assistant attorneys general include Elizabeth Johnsen, assistant attorney general, office of legal counsel; Th omas Perez, assistant attorney general civil rights; Tony West, assistant attorney general, civil division; and Christine Varney, assistant attorney general, antitrust division.
Fourteen women or minorities have been nominated or confirmed as U.S. attorneys. Jenny Durkan is the first openly gay lawyer in the Justice Department. And a host of other “firsts” may be found among these new federal attorneys at the regional level. Deborah Gilg is Nebraska’s first female U.S. attorney, as are Karen Loeffler for Alaska and Florence Nakakuni for Hawaii. If confirmed, Stephanie Rose will be the second woman in Iowa history to serve as a Senateconfirmed attorney. Todd Jones is the first African American U.S. attorney in Minnesota. Edward Tarver’s service as U.S. attorney for the Southern District of Georgia marks the first time an African American has held that post in the district. Pending confirmation by the Senate, Kenyon Brown would be the first black U.S. attorney in Alabama history. Carmen Ortiz is the first woman and Hispanic to hold the job of Massachusetts’s top federal prosecutor. Preet Bharara, U.S. attorney for the Southern District of New York, will oversee some of the country’s most prominent cases, like the prosecution of Bernard Madoff for his multi-billion-dollar Ponzi scheme.
The political nature of working in the government provides valuable experience, not to mention the opportunity to provide public service. Attorneys new to government service have to alter their perspective regarding the nature of their “client.” In private practice, the profit motives of corporate business clients are relatively straightforward. “The identity of one’s client is a bit more amorphous and complicated in the government sector,” explains Preeta Bansal, the general counsel for the Office of Management and Budget. “Your client is first and foremost your agency, but it is also the federal government as a whole, the administration, and ultimately the public at large.” Ivan Fong, GC of DHS, agrees. “For any given matter, the ‘client’ could be a unit within the agency, the agency, the agency head, the president, the executive branch, the United States, the public interest, or all of the above.”
The federal benches are also experiencing a dramatic increase in diversity. Twenty-two female or minorities judges have been nominated by President Obama, and seven confirmed. Jacqueline Nguyen is the nation’s first Vietnamese American federal judge. Abdul Kallon fills the historic seat of the first black federal judge in Alabama—Judge U.W. Clemon. Judge Denny Chin also represents an important first. If confirmed, he would be the only currently active Asian Pacific American federal appellate court judge in the United States out of approximately 175 federal appellate court judgeships, as well as the first Asian Pacific American federal appellate court judge ever in the Northeast.
Among the White House staff , all of whom are appointed and do not require Senate confirmation, the average age is 47, with ages falling between 26 years of age and 65. Men outnumber women 23 to 16, and whites account for 64 percent of the staff . The minority members include seven African Americans, three Hispanics, three Asians, and one unidentified member. Notable staff members providing diverse advice in the executive mansion include Rashad Hussain, deputy associate counsel to the president, and the first Muslim in the White House; Susan Sher, chief of staff to the First Lady; and Cynthia Hogan, counsel to the vice president. Kareem Dale, special counsel to the President, and Tina Tchen, director of the Office of Public Engagement, are other notable minority figures.
Government agencies face unique challenges when it comes to hiring, Tom posits. “Still, it is easier to recruit a diverse workforce today than it was a couple decades ago, and it remains easier to so at the entry level than at more-senior levels.” Young minority attorneys may be less inclined to opt for a government career because they typically possess staggering levels of debt upon graduation from law school and are concerned about the relatively low pay for government positions.
Others find that the government is at an equal level, or even stronger level, of diversity than private practice. “As a whole, I think that the government has frequently led the way in terms of diversity, and that the private sector has followed,” shares Bansal. “Proportionally, but anecdotally, I feel like I see more minority and women lawyers in the top jobs in government as compared with private practice, although I wouldn’t be surprised if the diversity within the attorney work force at large is comparable between the government and the private sector.”
George Madison, general counsel for the Treasury Department, agrees with Bansal’s assessment. “The [diversity] efforts and initiatives and results are very comparable [between government and private firms],” he observes. Fong shares Madison’s opinion, adding, “My impression is that the diversity within DHS’s legal department is roughly comparable to what I experienced in private practice and in a corporate general counsel’s office.”
Increased diversity within the government is long overdue. With more-diverse minds, the United States has an opportunity to more fully serve as the beacon of understanding and reason that gives it its credibility in the world. Today’s policy of diversity and inclusion, as championed by the Obama administration, will hopefully become a staple of future administrations to ensure equal representation and protection under the U.S. law. DB
Note
1 See Gallup News, Americans Hopeful Obama Can Accomplish Most Key Goals, Nov. 18, 2008 (poll conducted 7 – 9 2008), available at www.gallup.com/poll/111853/Americans-Hopeful-Obama-Can-Accomplish-Most-Key-Goals.aspx
Joshua H. Shields is the editorial assistant for Diversity & the Bar.
MCCA would like to extend special thanks to Haris Khan, Esq., for his research assistance to this article.
From the Jan/Feb 2010 issue of Diversity & The Bar®