Numerous stellar individuals have soared to previously unforeseen heights in their profession. Often, these individuals deservedly receive praise for their accomplishments as, among others, the "first woman," "first African-American," or "first Asian-American" in their field to reach certain professional achievements. Now, however, the singular accomplishments of such stellar individuals no longer satisfy the legal profession's need for diversity. To eradicate the "being first" paradigm, members of the bar and bench must embrace a culture of diversity, seeking a "diverse profession" rather than merely "diverse attorneys."
Merriam-Webster defines "diversity" as "the inclusion of different types of people (as people of different races or cultures) in a group or organization." Two important words in that definition are "different" and "inclusion." Every member of the profession should embody these words. Such an effort would create a "culture of diversity" within the legal profession. If the bench and bar do not embrace such a culture, serious consequences lay ahead.
First, without a culture of diversity, the demographics of the legal profession will stultify just as the body politic becomes more dynamic. Many predict that in just a few generations, non-white people will outnumber white people. In the last four decades, white people went from making up 87.4 percent of the population to about two-thirds of the U.S. population today. Moreover, commercial, social and familial bonds have and continue to extend beyond America's shores, a world decidedly less white than the United States. If the sheer number of non-white lawyers and judges remain as stagnant as it has over the last two decades, remaining nearly 90 percent white, the profession will quickly become far too unrepresentative of its clients.
Second, a diverse group, with different viewpoints, promotes innovation. Lawyers, firms and legal organizations must advocate creatively for their clients. Most law firms have a diverse set of practice groups to best serve their clients. Many studies have shown that homogenous groups tend to form greater interpersonal bonds with one another but produce mundane, unimaginative outcomes, while heterogeneous groups have more conflict but can better address novel, complex tasks. Given the need for creativity and the ubiquity of conflict in the legal profession, heterogeneity should be favored over homogeneity. Listening to and hearing all voices, especially disagreeable and different ones, may lead to better results. In many ways, the benefits of conflict resolution form the foundation of the Anglo-American common law system.
To promote a more representative, innovative and inclusive profession, individuals and legal entities, private and public, should engage in the following three activities: (1) acknowledge the danger of failing to change the demographics of the profession; (2) find ways to encourage diverse viewpoints and differences; and (3) create meaningful relationships to embrace and understand differences.
Acknowledge the Inability to Diversify
In a scathing dissent regarding due process, the late Thurgood Marshall wrote in U.S. v. Kras:
"It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live."
Failing to acknowledge the diversity that exists and grows outside the legal field leads to similar disgraceful assumptions within the profession today. White lawyers occupy a blindingly obvious overrepresented space within the profession. According to the American Bar Association's April 2010 "Diversity in the Legal Profession: The Next Steps," the legal profession is less racially diverse than most other professional arenas. For instance, 90 percent of all lawyers and judges in America are white. By contrast, only 75 percent of all medical doctors are white and only 80 percent of all engineers and accountants are white. Thus, ethnic diversity lags behind not only the general public but also other similar professions.
Women have fared only marginally better. While women now make up about 50 percent of entering law school classes, they are still less than 20 percent of all law firm partners and less than 35 percent of all Article III federal judges.
Diversity, however, is not synonymous with paint. The lack of a critical mass of non-white and female lawyers affects more than the aesthetics of the profession. The homogeneity of the legal profession impacts decisions in all practice areas.