"This crisis of confidence in the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."
Justice Sandra Day O'Connor
Justice Sandra Day O'Connor
Other Resources on Judicial Diversity, 1990-2012
This bibliography is intended to serve as a resource for attorneys, scholars and others who are interested in the current body of literature addressing judicial diversity. The articles are organized chronologically, beginning with the most recent in 2011 and span the last twenty years. Each abstract contains “tags” that coincide with common themes found throughout the literature. Derived from Westlaw, Lexis and JSTOR, most articles address arguments supporting the importance of a diverse bench, explanations for why there is a lack of diversity, suggestions on how to increase diversity on the bench, and the different theories explaining these rationales. If you come across an article that is not included in this bibliography, please contact JAS so that we can add it to the list.
A special thanks to the summer 2011 legal interns, Mark Plantan at JAS and Jeffrey Chang at Lambda Legal, who coordinated, researched and drafted this bibliography.
Hon. Elizabeth Ann Kronk, “Failure to Progress: A Renewed Call for American Indians and Alaskan Natives on the Federal Bench,” The Federal Lawyer (Mar/Apr 2011)
This brief piece argues that there is a strong need for more American Indians and Alaskan natives in the federal judiciary. Judge Kronk points out that there is only one active Native American judge on the federal bench. She argues that not only is it important to increase the number of Alaskan Natives and Native Americans on the bench in order to provide diverse viewpoints, but also because federal courts decide the lion’s share of Native issues. Furthermore, studies have shown judicial treatment of Native American legal issues tends to be most even-handed when a federal judge has been on the bench a long time and has become acclimated to the unique issues Native American legal disputes and tribal sovereignty can represent.
Tags: Native American, Indian, Alaskan, judge
Women Chief Justices, Second Annual Golden Gate University School of Law Chief Justice Ronald M. George Distinguished Lecture Women Chief Justice, 41 GOLDEN GATE U. L. REV. 153 (2011)
This lecture and panel discussion with women chief justices from California and Alaska provides a general overview of the issues facing female judges, access to courts, and judicial diversity. The transcript consists of mainly of the judges recounting their personal experiences as female judges and the challenges they face throughout their career.
Tags: judge, gender
Russell Wheeler and the American Judicature Society, Changing Backgrounds of U.S. District Judges: Likely Causes and Possible Implications, 93 Judicature 140 January-February 2010
This article examines the decrease in the appointment of private practitioners as district judges since the Eisenhower administration. The study examines how the vocational backgrounds of federal judges have mainly changed at the district court level, and more sitting judges are being appointed. The author posits that sitting judges may have already developed an interest in public issues compared to private practitioners, and they are more willing than other individuals to accept a judicial career. Also of note, is the increase in appointment of women and ethnic minorities to the bench. The article writes that women are more prevalent in the public sector than in the private sector, and this might contribute to the decrease in appointments of private practitioners.
Tags: professional diversity, gender, race, federal, district
This article examines the decrease in the appointment of private practitioners as district judges since the Eisenhower administration. The study examines how the vocational backgrounds of federal judges have mainly changed at the district court level, and more sitting judges are being appointed. The author posits that sitting judges may have already developed an interest in public issues compared to private practitioners, and they are more willing than other individuals to accept a judicial career. Also of note, is the increase in appointment of women and ethnic minorities to the bench. The article writes that women are more prevalent in the public sector than in the private sector, and this might contribute to the decrease in appointments of private practitioners.
Tags: professional diversity, gender, race, federal, district
Linda M. Merola & Jon B. Gould, Navigating Judicial Selection: New Judges Speak about the Process and its Impact on Judicial Diversity, 93 Judicature 184 March – April 2010
This study focuses on how state selection systems can impact judicial diversity. 23 judges of color across 12 states were interviewed for the study, and the authors found that all were affected by political factors, regardless of the method of judicial selection. Each of the judges discussed at length the political and strategic considerations involved in choosing judges. Individuals from partisan election systems discussed the difficulty of minority candidates to run an effective political campaign when faced with raising funds and other obstacles. Appointed judges emphasized that they still had to make a case before a nominating commission, and be aware of how they portray themselves to others. The study found that the state’s support for judicial diversity expressed through nominating committees or state’s legislature may influence the level of diversity in the state’s judicial makeup. The study also discusses programs and strategies which are helpful to minority judicial candidates such as mentorship programs and experiences that are helpful in attaining judgeship.
Tags: selection, federal, state, commission, election
This study focuses on how state selection systems can impact judicial diversity. 23 judges of color across 12 states were interviewed for the study, and the authors found that all were affected by political factors, regardless of the method of judicial selection. Each of the judges discussed at length the political and strategic considerations involved in choosing judges. Individuals from partisan election systems discussed the difficulty of minority candidates to run an effective political campaign when faced with raising funds and other obstacles. Appointed judges emphasized that they still had to make a case before a nominating commission, and be aware of how they portray themselves to others. The study found that the state’s support for judicial diversity expressed through nominating committees or state’s legislature may influence the level of diversity in the state’s judicial makeup. The study also discusses programs and strategies which are helpful to minority judicial candidates such as mentorship programs and experiences that are helpful in attaining judgeship.
Tags: selection, federal, state, commission, election
Linda M. Merola & Jon B. Gould, Navigating Judicial Selection: New Judges Speak about the Process and Its Impact on Judicial Diversity, 93 JUDICATURE 184 (2010)
This study focused on whether or not a particular state selection system impacted judicial diversity. Interviewing 23 judges of color in 12 states, the authors found that political factors weighed heavily for these judges regardless of the method of judicial selection. The judges spoke of political considerations, preparation, and skills necessary to navigate the selection process. Judges from partisan election systems discussed the difficulty of minority candidates to effectively run a political campaign with obstacles such as raising funds. Appointed judges responded that they were able to get to where they are because of nominating committees that were supportive of diversity, while elected judges tended to stress the difficulties of running in districts that were less responsive to judicial diversity. The study found that the state’s support for judicial diversity expressed through these nominating committees or state’s legislature may influence the level of diversity in the state’s judicial makeup. The study further discusses programs and strategies, which are helpful to minority judicial candidates such as mentorship programs and the type of experiences helpful in attaining judgeship.
Tags: selection, state, race, gender, minority
Melinda S. Molina, Role Models: Theory, Practice, and Effectiveness Among Latina Lawyers, 25 J. CIV. RTS. & ECON. DEV. 125 (2010)
In this article, Professor Molina uses the appointment of Justice Sonia Sotomayor to the Supreme Court to examine the prevalence and effectiveness of role models for Latina lawyers. Molina identifies a lack of Latinas in law school and low numbers of Latinas in leadership and mentoring roles as two main obstacles facing the success of Latina lawyers. Molina then uses role model theory to argue that Latina role models are needed in larger numbers and in more prominent roles in order to better foster the careers of Latina lawyers and prospective Latina law students.
Tags: Appointment, Latino, Latina, Hispanic, Minority
Carl Tobias, Diversity and the Federal Bench, 87 Wash. U.L. Rev. 1197 (2010)
This article begins by commending the Obama Administration’s commitment to increasing ethnic and gender diversity on the federal bench, emphasizing that enhancing diversity honors valuable goals. The author then evaluates the judicial selection process on the federal level, pointing out that while Obama has nominated many well qualified persons of color and women, the Senate has approved few. Suggestions to improve this process include the Judiciary panel’s continuing efforts to expeditiously investigate, afford hearings and vote on nominees, prompt scheduling of floor debates and ballots, and the GOP eliminating or restricting devices that obstruct and stall the process. The author contends that if the parties work together, the bench will be filled with qualified, diverse judges.
Mary Vasaly, Men in Black: Gender Diversity and the Eighth Circuit Bench, 36 WM. MITCHELL L. REV. 1703 (2010)
The author examines the lack of diversity on the Eighth Circuit bench, noting that there has only been one woman on the Eighth Circuit since its creation over a century ago. Vasaly argues there are four principle reasons a diverse bench is important: 1) judgments of a diverse judiciary command greater acceptance in a diverse society; 2) deliberation is enhanced when there are different, diverse perspectives; 3) seeking diverse candidates broadens the pool of potential qualified jurists; and 4) diverse judges become role models for younger generations of lawyers. Vasaly also identifies four barriers to female participation in the federal system: 1) competition for seats is more competitive; 2) implicit bias against diverse candidates; 3) lack of female partners at large firms; and 4) lack of appointments of more women after the first “token” woman is appointed.
Tags: federal, gender, race, minority, appointment
Linda Maria Wayner, The Affirmatively Hispanic Judge: Modern Opportunities for Increasing Hispanic Representation on the Federal Bench, 16 TEX. WESLEYAN L. REV. 535 (2010)
This article discusses the trends of Hispanic federal judicial appointments and the need for “representational parity” which meanshaving similar percentages of Hispanic individuals in the federal court system as in the public at large. The author posits that symbolic appointments and “role models” will not bring about the transformative changes needed to ensure the judiciary’s institutional credibility.
Tags: Hispanic, Latino, Latina, minority, race, appointment, federal
Jennifer Segal Diascro and Rorie Spill Solberg, George W. Bush’s Legacy on the Federal Bench: Policy in the Face of Diversity, 92 Judicature 289 May – June 2009
This study focuses on George W. Bush’s legacy on the federal bench by appointing candidates that would bring diversity to the courts. On the surface, it appears that Bush was very committed to diversifying the bench. However, the study shows that beneath the numbers, Bush was far more concerned with judges that shared his ideological and policy considerations. The study notes that he did appoint many women and minorities to judgeships, but he greatly ignored African-American males. The study concludes that President Obama seems more dedicated to having a major impact on the diversity of federal courts.
Tags: federal, appointment, race, gender, Bush, Obama
This study focuses on George W. Bush’s legacy on the federal bench by appointing candidates that would bring diversity to the courts. On the surface, it appears that Bush was very committed to diversifying the bench. However, the study shows that beneath the numbers, Bush was far more concerned with judges that shared his ideological and policy considerations. The study notes that he did appoint many women and minorities to judgeships, but he greatly ignored African-American males. The study concludes that President Obama seems more dedicated to having a major impact on the diversity of federal courts.
Tags: federal, appointment, race, gender, Bush, Obama
Floyd S. Witherspoon, The Status of African American Males in the Legal Profession: A Pipeline of Institutional Roadblocks and Barriers, 80 MISS. L.J. 259 (2010)
This article does not focus on African Americans in the judiciary, but it does discuss the challenges that African American males experience in the legal profession—from law school admissions to hiring and promotion. Of particular note, the article provides statistics of African Americans judges and law clerks and discusses the importance of improving the diversity of law clerks, which the author says allows African Americans to influence judicial decision-making.
Tags: race, minority
Gregory L Acquaviva & John D. Castiglione, Judicial Diversity on State Supreme Courts, 39 SETON HALL L. REV. 1203 (2009)
This article highlights a large study of state supreme court justices and diversity. The study examined the racial, gender, and religious affiliation of all the supreme courts in the United States. The article also shows the differences between minority and women judges in terms of background and prior judicial experience. The entire study is available in the article as an addendum.
Tags: race, gender, women, minority, state, empirical
Pat C. Chew & Robert E. Kelley, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 WASH. U. L. REV. 1117 (2009)
The authors study 400 federal workplace harassment cases between 1981 and 2003 and found that white judges are more likely than African American judges to favor employer defendants, especially in motions for summary judgment. Race, according to the authors, is a stronger influence that the judges’ political affiliation. However, this study does not suggest that minority judges are “biased,” but states that a more diverse judiciary ensures that judges can understand the perspectives and experience of minority plaintiffs that white judges may lack. Since more than 80% of the federal judiciary is white, the authors note, a more diverse judiciary will ensure that a more nuanced view of cases involving race will emerge.
Tags: minority, race, federal, empirical
Sherrilyn A. Ifill, Judicial Diversity, 13 GREEN BAG 45 (2009)
In this piece, Ifill argues that there are two main arguments for increased judicial diversity. The first, uncontroversial one is that diversity promotes confidence in the courts. The second, controversial argument is that judicial decisionmaking can change and be improved by the addition of different perspectives. Ifill argues that the process of decisionmaking can be bettered by having a variety of backgrounds and experiences present when reaching an outcome in a given case. She utilizes confirmation hearing testimony by Justices O’Connor and Alito to illustrate this point, as well as anecdotes from the Nixon administration and Justice Ginsburg.
Tags: race, gender, minority, federal
Jennifer M. Jensen & Wendy L. Martinek, The Effects of Race and Gender on the Judicial Ambitions of State Trial Court Judges, 62 POL. RES. Q. 379 (2009)
Jensen and Martinek studied the role race and gender play on the career ambitions of New York state trial court judges. In surveying the judges, the authors found that minority and female judges were more likely than their white peers to want to be elevated to higher judicial appointments. Since elevation to the state supreme court (intermediate court) is dependent on political appointment, the authors note in their study that minority and female judges were far more likely to perceive that personal contacts are important in moving up in their judicial career. The authors posit that women and minorities are more ambitious because they see the judiciary as a promising venue to advance their careers (rather than embarking on a career in the legislative branch) because it values diversity. They conclude that the opportunity structure is paramount in encouraging minority and female judges to advance their judicial careers.
Tags: gender, state, empirical, minority, race
Sanaz Alempour, Note, Judicial Recusal & Disqualification: Is Sexual Orientation a Valid Cause in Florida?, 32 NOVA L. REV. 609 (2008)
This student note examines the history of recusal law and contextualizes it in Florida. The author examines whether recusal is warranted or appropriate in the state of Florida on the basis of sexual orientation of the judge. The author looks at the most recent same sex marriage decision in Oregon where one of the Supreme Court Justices consulted with ethics texts and attorneys before participating in the decision because he was openly gay. The author also examines Florida-specific cases where a gay defendant had to be resentenced after the first sentencing judge read a passage from the Bible prior to sentencing that condemned homosexuality. The author concludes that that recusal for sexual orientation is not appropriate under Florida judicial codes because there is no evidence that a homosexual judge would be less impartial than a heterosexual judge.
Tags: LGBT, gay, orientation, recusal, disqualification, state
Taunya Lovell Banks, Here Comes the Judge! Gender Distortion on TV Reality Court Shows, 39 U. BALT. L.F. 38 (2008)
This article examines the representation of women and minority judges on reality court TV shows. Banks argues that minorities and women are represented at a far higher rate on reality court TV shows than they are in the actual judiciary. Banks examines each female judge who has or recently has had a reality court TV, analyzing the significance of the judge’s different courtroom styles. Banks concludes by drawing connections between what the public sees on television with regard to the racial and gender makeup of TV reality show courts and the actual makeup of state courts.
Tags: race, gender
Todd Collins & Laura Moyer, Gender, Race, and Intersectionality on the Federal Appellate Bench, 61 POL. RES. Q. 219 (2008)
Collins and Moyer test the influence of the intersectionality of gender and race in judicial decisions by analyzing data from federal courts of appeals criminal cases decided between 1977-2001. When controlled for judicial ideology, age, and geography, judges belonging to a racial minority were statistically no more likely to support the defendant’s positions than nonminorities. Similarly, when accounting solely for the judge’s gender—male and female judges are statistically no more likely to support the defendant’s position. However, when accounting for both race and gender, female judges of color were statistically more likely to support the defendant’s position (6 to 10% more likely than male or white female judges). The authors believe that this comports with other social science research (e.g. Creshaw and Gilligan), which posits that minority women may have a distinctive identity. The authors note that there are significant limitations to their study, namely the small sample size of minority female judges. However, they conclude that research on minority judges should focus on overlapping or intersecting identities that include factors like prior wealth, race, gender, or other personal traits.
Tags: minority, race, gender, federal, empirical
Mark S. Hurwitz & Drew Noble Lanier, Diversity in State and Federal Appellate Courts: Change and Continuity Across 20 Years, 29 JUS. SYS. J. 47 (2008)
This article takes an empirical look at the change in state and federal court diversity over a period of twenty years. The authors argue that diversity is both important in terms of symbolism, but also in terms of making better decisions. The debate over which method of judicial selection best promotes diversity is briefly overviewed, and data is provided on how selection messages have changed over the previous two decades. The authors conclude that selection systems have little influence on the number of diverse judges reaching the appellate bench. The data indicate that differences between selection systems and minorities making it to an appellate level have flattened out in more recent years, suggesting that other factors caused the disparity between systems that was present twenty or more years ago.
Tags: empirical, federal, race, gender, minority, appointment, selection
Sylvia R. Lazos Vargas, Only Skin Deep?: The Cost of Partisan Politics on Minority Diversity on the Federal Bench, 83 IND. L.J. 1423 (2008)
This article provides an excellent concise summary of the importance of judicial diversity and analysis of diversity within the context of the George W. Bush and Bill Clinton administrations. Vargas categorizes the benefits of judicial diversity into the following: descriptive diversity (representative diversity) which produces citizenship, legitimacy, and remedial integration; symbolic diversity which promotes role models, viewpoint diversity which produced greater dialogue among judges and credibility. Using the Clinton and Bush administrations as case studies, the author examines how each president framed diversity differently. The Bush administration, according to Vargas, was largely exemplified by symbolic diversity, but not viewpoint diversity. In contrast, Vargas shows the bitter confirmation battles for minority judges under the Clinton administration, which she says illustrates the higher burden of having to negotiate their identities to “satisfy” a white audience. As a result, Vargas says the confirmation process tends to produce judges who do not “stick out,” not only in their merit achievements, career paths, and ideology, but also to how minorities interpret and “perform” their racial identity. This results in judiciary, which may be symbolically diverse, but lacks judges with diverse racial perspectives and political ideologies.
Tags: gender, race, minority, federal
Michael A. Nava, The Servant of All: Humility, Humanity, and Judicial Diversity, 38 GOLDEN GATE U.L. REV. 175 (2008)
Nava, a Judicial Staff Attorney to former California Justice Carlos Moreno, summarizes the familiar arguments for judicial diversity such as the notions of minority representation and greater impartiality. According to Nava, judicial diversity demonstrates two characteristics he believes judges should embody—humility and humanity. Judges from diverse backgrounds are more likely to be humble because they may have experienced oppression, discrimination, and have relied on support from others to achieve success. These judges are also more empathetic because of their varied life experiences. For instance, a judge who personally experienced discrimination may be more likely to “see inequality” in her equal protection analysis rather than a judge who is just relying on constitutional text.
Tags: race, minority, state, federal
Anita F. Hill, The Embodiment of Equal Justice Under the Law, 31 NOVA L. REV. 237 (2007)
Using examples of judges in Canada and the United States, the author shows how female judges contribute to a diversity of perspectives in interpreting law and facts of their cases. These diverse perspectives are more important than concluding whether or not men and women judges come to different outcomes in cases. Instead, she posits that a diverse judiciary comports with larger societal goals of a representative government.
Tags: gender, international
Angela Onwuachi-Willig, Representative Government, Representative Court? The Supreme Court as a Representative Body, 90 MINN. L. REV. 1252 (2006)
In this paper, the author argues that because diversity of viewpoints materially affects judicial decisionmaking, the Supreme Court should be a body that is representative of the general population. The author accepts the view that complete judicial neutrality is a myth, and therefore diversity is critical since it provides different life experiences and viewpoints a voice is the judicial process. The author cites Justices Sandra Day O’Conner and Thurgood Marshall as examples of how different life experiences can lead to better judicial decisionmaking. Finally, as a “thinking point,” the author suggests the Court be expanded to fifteen members. Fifteen members would reduce the problems of tokenism by allowing more diverse appointments and requiring a larger consensus on majority opinions, making the inclusion of diverse views a virtual necessity.
Tags: race, gender, minority, federal, appointment
Rorie Spill Solberg, Court Size and Diversity on the Bench: The Ninth Circuit and Its Sisters, 43 ARIZ. L. REV. 247 (2006)
This article examines the diversification of the Courts of Appeals in the United States, and uses the most diverse circuit, the Ninth, as a contrast for other circuits. The author analyzes data from different presidencies beginning with the Carter administration and tracks how the different circuit courts diversified. The author finds that it wasn’t until the late 1980s and early 1990s that the appointment of women and racial minorities to the federal appellate bench became commonplace. The author also identifies a number of factors that are relevant to the diversification of a given circuit including the increase in size of the federal circuit courts, ideology of the president doing the nominating, and the ideology of the Senate at the time of nomination. The author concludes that in addition to these factors, other critical factors such as a heterogeneous demographic base and large circuit size led to the Ninth Circuit being the more diverse circuit and the quickest to diversify.
Tags: federal, gender, race, minority
Theresa M. Beiner, How the Contentious Nature of Federal Judicial Appointments Affects “Diversity” on the Bench, 39 U. RICH. L. REV. 849 (2005)
Professor Beiner examines judicial nominees from the first two years of the Bush administration and the entirety of the Clinton administration in order to determine how diverse the appointees are. She finds that while both administrations made significant numbers of appointments of non-white, non-male judges, neither President managed to appoint nominees that were diverse in their prior judicial experience. Beiner argues that both presidents nominated a large number of prosecutors; there was not parity for legal aid lawyers or defense attorneys. She notes further that President Clinton struggled to get nominees confirmed who were ACLU members, and she observes that while it is important to have diversity in the form of gender and race, it is also important that judges come from different areas of the legal field.
Tags: gender, race, appointment, federal, empirical
Rorie L. Spill Solberg & Kathleen A. Bratton, Diversifying the Federal Bench: Presidential Patterns, 26 JUST. SYS. J. 119 (2005)
This article examines data on diversity appointments from 1970 to 2004 and reveals the factors that tend to promote diverse appointments. The data focus on the appointment of women, African American, and Latino judges to federal district courts. The data reveal that large courts tend to be more diverse, and that the size of the court is the most influential factor leading to appointments of women and African Americans, but the effect is not as powerful for Hispanics. Additionally, the data show that it is more likely that a woman will be appointed to an all-male court, and an African American to an all-white court. The existing pool of eligible African American and Hispanic lawyers is also a relevant factor leading to an appointment of an African American or Hispanic judge, but this is not the case for women. Finally, the authors found that political factors have relatively weak affects on diverse judicial appointments.
Tags: empirical, gender, Latino, Latina, Hispanic, race, minority, federal, appointment
Barbara L. Graham, Toward an Understanding of Judicial Diversity in American Courts, 10 MICH. J. RACE & L. 153 (2004)
This article provides strong background for understanding the lack of minority representation on the state and federal level. Graham uses data that shows that people of color are “extremely underrepresented,” and in her opinion proves that progress has been slow in improving judicial diversity. In particular, Graham argues that it will take much longer to gain minority representation on the courts beyond symbolic token diversity. She recommends that states should institutionalize structural and institutional changes to remove barriers, such as creating diversity task force groups. On the federal level, she suggests a more substantial commitment to diversity in appointing magistrate judges and bankruptcy judges.
Tags: minority, state, federal, race
Sherrilyn A. Ifill, Through the Lens of Diversity: The Fight for Judicial Elections After Republican Party of Minnesota v. White, 10 MICH. J. RACE & L. 55 (2004)
Ifill analyzes the impact Minnesota v. White will have on judicial elections and the opportunities for minority judges to get on the bench. She counters the majority in White and questions whether an appointment-only system of selecting judges will increase judicial diversity. In White, Ifill notes that the Court grappled with what an “impartial” judge is and says that the removal of campaign speech restrictions will have a disproportionate effect on black judicial candidates. With the removal of these restrictions, minority candidates will face more allegations of bias because their public statements are often more distorted than white candidates. What a minority says on the campaign trail could be used to trigger “latent racial impulses.” Ifill says that states must engage in structural diversity, which acknowledges that diversity is an essential function of an impartial judiciary. She cautions, however, that minority judges may not benefit entirely from an appointment-system because minorities cannot vote for desired candidates and even if minority judges are appointed, they may face challenges in retention elections. For Ifill, the following reforms should be adopted: 1) impartiality should be defined to include diversity as a requirement; 2) public financing of judicial elections; 3) cumulative voting or “at large” voting; and 4) a public education campaign.
Tags: selection, minority, race
Kevin R. Johnson & Luis Fuentes-Rohwer, A Principled Approach to the Quest for Racial Diversity on the Judiciary, 10 MICH. J. RACE & L. 55 (2004)
In this article, the authors use the Critical Race Theory idea of the “voice of color” to argue that the addition of minority judges is essential to provide courts with different perspectives that will improve decisionmaking. They help to illustrate this point by looking at various minority judges and noting how their unique voices provided for a more effective judiciary. The authors argue that an increase in diverse judges provides more effective decisionmaking, and they illustrate this point by showing how minority viewpoints may have better informed certain Supreme Court decisions. They also argue that diversity on the bench improves the legitimacy of courts. The authors reject the idea that diverse appointments call into question a court’s impartiality, noting that seeing the world differently does not mean a judge has decided an issue or case before hearing it. Additionally, the authors draw from lessons learned by studying juror diversity to argue for the necessity of a diverse bench. Finally, the authors provide a blueprint for a principled approach to increasing diverse appointments.
Tags: race, minority, appointment
Deseriee A. Kennedy, Judicial Review and Diversity, 71 TENN. L. REV. 287 (2004)
Kennedy examines Marbury v. Madison from the perspective of African Americans at that time and now. Kennedy argues that while Marshall saw the judiciary as strong, his view was ultimately myopic and other decisions he handed down show that he had little concern for African Americans both free and enslaved. Kennedy argues that the transformative power courts hold because of judicial review is limited by the homogeneity of the bench.
Tags: race, minority
Sylvia R. Lazos, Does a Diverse Judiciary Attain a Rule of Law that Is Inclusive?: What Grutter v. Bolinger Has to Say about Diversity on the Bench, 10 MICH. J. RACE & L. 101 (2004)
This article looks at three decisions by the Rehnquist court: Grutter v. Bollinger, Gratz v. Bollinger, and Georgia v. Ashcroft, arguing that these cases show how the Supreme Court has failed to fashion a rule of law that is inclusive of all racial perspectives. The author also examines then-existing literature on judicial diversity and argues that while the literature is equivocal as to whether a diverse judiciary has an impact on the rule of law; it is likely that the literature has just not advanced far enough to detect the influence. The author goes on to make the argument that Grutter v. Bollinger supports the proposition that racial diversity is important because it promotes viewpoint diversity, and that while there is not an exact amount of minority judges that will promote a racially inclusive jurisprudence, aiming for a “critical mass” is a step in the right direction. Finally, the author argues that politics is the most significant stumbling block to creating a more diverse judiciary, using the nominations of Miguel Estrada and Janice Rogers Brown as examples.
Tags: race, minority, federal
Nancy Scherer, Blacks on the Bench, 119 POL. SCI. Q. 655 (2004)
The author examines the voting behavior of African American judges and white judges in cases where a criminal defendant alleges police misconduct. Before examining the data, Scherer looks at previous work that sought to determine if there is a difference in voting behavior between African American judges and white judges, finding that the previous studies have been faulty in various ways including looking only at judges appointed in the 1970s, selecting improper cases, and failing to control for case facts. The data reveal differences not only between appointees of different administrations, but also differences among appointees of different races made by the same administration. Ultimately, the author concludes that the data show a difference in voting behavior in search and seizure cases between African American judges and white judges.
Tags: race, minority, state, empirical
James Andrew Wynn, Jr. & Eli Paul Mazur, Judicial Diversity: Where Independence and Accountability Meet, 67 ALA. L. REV. 775 (2004)
Wynn and Mazur use a “difference” and “representation” argument to discuss how judicial diversity is critical to the impartiality and accountability of the judiciary. In framing the discussion between judicial merit selection and popular election, independence and accountability, according to the authors are usually seen as competing values. Independence and accountability is usually measured by the distance between judges and popular sentiment. However, Wynn and Mazur argue that this does not take into account how diversity must be factored into fostering an impartial and representative diversity. Taking into account factors like race, gender, and ethnicity provide a proxy for attaining diversity.
Tags: gender, race, minority, selection
Edward M .Chen, The Judiciary, Diversity, and Justice for All, 91 CAL. L. REV. 1109 (2003)
This address by Magistrate Judge Chen is an argument for greater diversity on the federal bench. Judge Chen notes that the judiciary is less diverse at the Magistrate level than at the Article III level. Judge Chen cites the continuing effects of past discrimination and the low numbers of minority law graduates as factors that have led to the lack of diversity on the bench. The judge argues that judicial diversity improves the judicial decisionmaking process and provides historically marginalized groups with role models. Finally, Judge Chen argues that a diverse bench helps to break stereotypes that lead to judicial outcomes that harm minority communities.
Tags: race, minority, judge, appointment, federal
Mark S. Hurwitz & Drew Noble Lanier, Explaining Judicial Diversity: The Differential Ability of Women and Minorities to Attain Seats on State Supreme and Appellate Courts, 3 ST. POL. & POL’Y Q. 329 (2003)
This empirical political science article uses data from intermediate appellate courts and courts of last resort in all 50 states to examine the factors that influence the appointment of women and minorities to the bench. The authors examine structural factors, political factors, and demographic factors to see how they each affect the number of women and minorities on a given court. The data reveal that no one factor is responsible for women and minorities being appointed or elected to the bench. The authors make a number of findings, some of which contradict traditional scholarship. Of particular interest is the authors’ finding that women are more likely to get a seat on a more prestigious court over less prestigious courts.
Tags: empirical, state, women, race, minority, appointment, selection
Mark S. Hurwitz and Drew Noble Lanier, Women and Minorities on State and Federal Appellate Benches, 1985 and 1999. 85 Judicature 84 September – October 2001
This study examines how appellate courts are becoming more diverse, while judicial selection methods seem to have less of an impact on appointing minority candidates. The article suggests that merit systems tend to perpetuate the dominance of the status quo, and decrease judicial opportunities for political minorities. It found that roughly three-quarters of current U.S. appellate judges are white males, with the remaining judicial positions comprised of women and minorities. This study describes that most minority candidates attained their positions on the bench without the help of a merit selection system. Overall, women seem to have made far more progress in their ability to become judges than other political minorities. African Americans have made the least progress according to the study.
Tags: state, federal, race, gender, merit, selection, political minorities
This study examines how appellate courts are becoming more diverse, while judicial selection methods seem to have less of an impact on appointing minority candidates. The article suggests that merit systems tend to perpetuate the dominance of the status quo, and decrease judicial opportunities for political minorities. It found that roughly three-quarters of current U.S. appellate judges are white males, with the remaining judicial positions comprised of women and minorities. This study describes that most minority candidates attained their positions on the bench without the help of a merit selection system. Overall, women seem to have made far more progress in their ability to become judges than other political minorities. African Americans have made the least progress according to the study.
Tags: state, federal, race, gender, merit, selection, political minorities
Barbara Palmer, “To Do Justly”: The Integration of Women into the American Judiciary, 34 PS: POL. SCI. & POL. 235 (2001)
This brief article discusses the history of women on the bench and the theories behind the lack of women on the bench and the current challenges and opportunities. Two of the explanations behind the slow integration of women onto the judiciary is the “pipeline” theory and the “eligibility” theory. Both theories suppose that there is a lag between increases in the number of women lawyers and increases in women serving in judicial institutions. At the same time, while women are entering law schools at near equal rates as men, they still lag behind men in entering private practice careers—one of the traditional occupational routes to the bench. One possibility the author suggests is that women lawyers follow different paths. Palmer then summarizes studies on how women judges rule compared with men and finds that while the presence of women may foster an increase in a court’s support for women’s rights claims, for instance, there is less evidence that women develop different systems of reasoning and jurisprudence vis-à-vis Gilligan’s “different voice” theory.
Tags: gender, state, federal
Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 WASH. & LEE L. REV. 405 (2000)
In this article, Ifill looks beyond confidence and role model rationales for a diverse judiciary, noting that these rationales have undermined the effort to diversify the judiciary. Ifill argues that African Americans have a fundamentally different experience both in law and in life, and that this experience will be brought to bear by an African American judge. Ifill also examines the way African American jurists would view certain discrimination cases, as well as the impact diverse judges would have in cases other than discrimination. She also provides strong arguments against the notion that minority judges cannot be impartial, and concludes with by arguing that judicial diversity should be sought through the promotion of outsider viewpoint, not just arguments for public confidence and role models.
Tags: minority, gender, race
Darrell Steffensmeier & Chris Hebert, Women and Men Policymakers: Does the Judge's Gender Affect the Sentencing of Criminal Defendants?, 77 SOC. FORCES 1163 (1999)
This study asks whether 1) women and men judges give similar or different sentences to criminal defendants controlled for case characteristics, judge’s background, and other factors and 2) women and men judges use the same criteria and give the same weight to case characteristics when arriving at sentencing decisions. The authors found that women and men judges typically give different criminal sentences. For instance, they found that women judges give longer sentences and are 10% more likely to incarcerate. However, the judges’ past career as a prosecutor—whether they are male or female is also just as likely a factor that determines incarceration rates. The study also showed that female judges were more likely to contextualize defendants’ attributes by looking at his or her race, age, gender as well as his/her past criminal record. This article embodies the “difference” argument, which explains why men and women judges may decide different. Women, the authors say may decide differently because they care more about how the defendant expresses contriteness or his chances of recidivism. The article admits its shortcomings including the lack of women judges on the bench which contributed to a less diverse sample size and also that woman judges in the study tended to decide on more serious crimes.
Tags: gender, empirical, state
Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts, 39 B.C.L. REV. 95 (1997)
In this article, Ifill argues the persistence of nearly all-white state judiciaries constitutes a violation of the 14th Amendment of an impartial judge. She says that the 14th Amendment’s mandate should be interpreted to require structural diversity so that the judiciary is comprised of judges of diverse viewpoints and backgrounds. Ifill says that recognizing the role of judges as representatives opens up the diversity debate to more vigorous and honest exchange. “Accepting the representativeness of judges permits us to center the discussion not on whether we can appoint one or two minority judges to increase the facial legitimacy of the bench, but more appropriately on dismantling judicial selection systems which maintain the exclusion of racial minorities from an entire branch of government.” As a result, she says that states should use either appointive or elective systems that work with the public and the bar to create selection methods that satisfy the requirements for representation mandated by the Constitution.
Tags: state, minority, race, selection
Gerard S. Gryski, Gary Zuk and Deborah J. Barrow, A Bench That Looks Like America? Representation of African Americans and Latinos on the Federal Courts, 56 J. POL. 1076 (1994)
This early 1990’s study of African American and Latino representation on the federal courts found that the selection of these two groups to the bench is influenced by different factors. For the selection of African Americans, the authors find, is attributed to political and demographic factors. The study found that African American judges were most likely to be nominated in districts where there was a high number of African Americans. This coincides with greater African American political mobilization, especially in economically depressed areas such as Washington D.C. In contrast, Latino judges emerge in areas such as Puerto Rico in which there is a large Latino population and an economic presence, which compensates for the relative lack of electoral success. While African American nominations have benefitted from greater geographical range from 1970-1980 the authors found that Latino judges still concentrated in Puerto Rico. And while the numbers of minority judges are improving, few are nominated to the more prestigious Court of Appeals.
Tags: empirical, race, Latino, Latina, Hispanic, federal
Daniel R. Songer, Sue Davis & Susan Haire, A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals, 56 J. POL. 425 (1994)
This study examines the voting habits of judges on the Federal Courts of Appeal in obscenity cases, criminal cases, and employment discrimination cases to determine if the gender of the judge is an indicator as to how the judge will vote. The paper summarizes then-recent research in the area of judicial decisionmaking by female judges, and it also considers various theoretical points of view on whether female judges might make decisions that are more liberal than their male counterparts. The data reveal that in obscenity cases and criminal cases, gender of the judge does not help predict the outcome of the case. The data do show, however, that in employment discrimination cases, accounting for gender does help to better predict the results of a case.
Tags: empirical, gender, federal
