Brennan Center for Justice

One
issue that may be lost in the coming weeks as the hearings to confirm
Judge Sonia Sotomayor is the significance of this progress in fulfilling
a promise to the American people that the courts will indeed look like
America.

As
we found in a recent investigation, that is far from the case in courts
across the country. A
report we released in December 2008
highlighted the importance of judicial diversity among state Supreme
Courts by examining practices regarding minority recruitment on the
part of selection commissions in 10 states.  We found the composition
of both courts and selection pools for jurists dramatically lagged both
the general population and the population of law school graduates in
terms of diversity of both race and gender.

We
also took a close look at the importance of diversity on the bench,
and the problem of "implicit bias" in hiring. Recent studies on
the issue of implicit bias are revealing:  it turns out that many
of the natural psychological categories that we have learned and that
help us sort the world into meaningful information can bring with them
negative biases from childhood that are hard to shake, even years after
we believe we have removed them from our conscious viewpoint on the
world.  

For
people of color, and particularly those that live in a white-dominated
professional world, the existence of these unconscious facets of bias,
and of being seen through less-than-sympathetic eyes, is a fact of life. 
Although it has often been a struggle for others to recognize this more
subtle form of prejudice, even some Supreme Court Justices have described
it convincingly. Justice Brennan wrote in a 1989 case that "unwitting
or ingrained bias is no less injurious or worthy of eradication that
blatant or calculated discrimination."

      During
Samuel Alito's confirmation hearings to be a Supreme Court Justice,
he acknowledged these kinds of experiences of discrimination in an intimate
and candid discussion:

[W]hen a case comes before
me involving, let's say, someone who is an immigrant -- and we get
an awful lot of immigration cases and naturalization cases -- I can't
help but think of my own ancestors, because it wasn't that long ago
when they were in that position...When I get a case about discrimination,
I have to think about people in my own family who suffered discrimination
because of their ethnic background or because of religion or because
of gender. And I do take that into account.

For
judicial selection commissions to combat this implicit bias, we found
that they must be pro-active in their approach to identifying and recruiting
minorities. We also found that the case for diversity on the bench was
strong, and would benefit not only the particular judgments, which would
arise from a more complex tapestry of experiences in society, but also
the public perception and legitimacy of decisions from the judicial
branch. When the range of people who sit in judgment do not reflect
the communities they serve, the clear impression that may be left is
that judges will not be impartial or reflect community-level understandings
and values.  

This
is not, of course, to suggest, that mere diversity should allow unqualified
jurists to be advanced for diversity's sake alone. But the results
of our research show clearly that when highly qualified candidates such
as Judge Sotomayor are moved into positions historically monopolized
by non-diverse candidates, the benefits go beyond the particular decisions
made by any jurist. And certainly, the prospect of a Supreme Court that
partakes in the rich traditions that characterize the breadth of American
culture is a welcome one, after centuries in which communities of color
have felt less than well-represented in the halls of power.