Improving Judicial Diversity
White males are overrepresented on state appellate benches by a margin of nearly two-to-one. Almost every other demographic group is underrepresented when compared to their share of the nation’s population. Even after years of women and minorities making strides in the legal profession, white men continue to hold a disproportionate share of judicial seats compared with their share of the general population. The question of why this pattern persists does not have an easy answer; the dynamic is created by the intersection of a number of complex factors. This study examines how successful states with appointed judiciaries are at recruiting and appointing women and racial minorities to sit on the bench. Our goal is to provide an accurate picture of the diversity in state courts and a roadmap of how to improve diversity on the state bench.
The United States is more diverse than ever, but its state judges are not. While we recognize that citizens are entitled to a jury of their peers who will be drawn from a pool that reflects the surrounding community, Americans who enter the courtroom often face a predictable presence on the bench: a white male. This is the case despite increasing diversity within law school populations and within state bars across the country.
Most of the legal disputes adjudicated in America are heard in state courts. As such, they must serve a broad range of constituencies and an increasingly diverse public. So why are state judiciaries consistently less diverse than the communities they serve? Unfortunately, studies show that both merit selection systems and judicial elections are equally challenged when it comes to creating diversity.
Today, white males are overrepresented on state appellate benches by a margin of nearly two-to-one. Almost every other demographic group is underrepresented when compared to their share of the nation’s population. There is also evidence that the number of black male judges is actually decreasing. (One study found that there were proportionately fewer black male state appellate judges in 1999 than there were in 1985.) There are still fewer female judges than male, despite the fact that the majority of today’s law students are female, as are approximately half of all recent law degree recipients. This pattern is most prevalent in states’ highest courts, where women have historically been almost completely absent.
These national trends repeat themselves in the ten states we studied. For example:
- Arizona’s population is 40% non-white,7 but Arizona has no minority Supreme Court justices. Minorities occupy only 18% of its Court of Appeals judgeships and 16% of its Superior Court judgeships. Despite Arizona’s constitutional provision directing appointing Commissions to reflect the diversity of the state population,10 the diversity of the state bench falls short.
- Rhode Island’s population is 21% non-white. Not withstanding the statutory requirement that the governor and nominating Commissions encourage diversity on the appointing Commissions, it has no minority Supreme Court justices and minorities hold only two of the 22 judgeships on the Superior Court.
- Utah’s population is 18% non-white. Yet Utah has no minority Supreme Court justices. Minorities hold one of seven court of appeals judgeships and only four of 70 district court judgeships.16 Utah has no specific constitutional or statutory diversity provision.
The problem is clear: even after years of women and minorities making strides in the legal profession, white men continue to hold a disproportionate share of judicial seats compared with their share of the general population. The question of why this pattern persists does not have an easy answer; the dynamic is created by the intersection of a number of complex factors.
But it is a situation we can fix. Fortunately, there are commonsense ways to increase awareness of openings on the judiciary and encourage diversity on the bench.
The Brennan Center for Justice at NYU School of Law undertook this study to determine how successful those states with appointed judiciaries are at recruiting and appointing women and racial minorities to sit on the bench. Our goal is to provide an accurate picture of the diversity in state courts and a roadmap of how to improve diversity on the state bench.
In the course of this study, we interviewed members serving on the judicial nominating Commissions in ten states (Arizona, Colorado, Florida, Maryland, Missouri, New Hampshire, New Mexico, Rhode Island, Tennessee and Utah) to learn if, and how diversity is taken into account during the nominating process. To contextualize our interviews, we reviewed the relevant academic literature on judicial selection as well as academic writings in the field of cognitive science on implicit bias. In addition, we investigated the demographic data and the applicable laws in each state. Based on this research, we offer of a number of best practices to attract talented female and minority attorneys to the bench.
Looking at a sample of ten states with appointive systems, we found that in most states racial and gender diversity on the bench lags behind the diversity of these states’ general populations, bar memberships and law students. This is especially true on the highest courts; four of the ten states we examined had Supreme Courts that are all white.
Overall, too few states have systematic recruitment efforts to attract diverse judicial applicants. We identified two particularly interesting trends from our interviews with judicial nominating Commissioners. Commissioners who thought of themselves as “headhunters” took responsibility for recruiting candidates and keeping an eye on the diversity of the applicant pool throughout the nominating process. Commissioners who conceived of their mission as purely “background- checking” spent little time actively recruiting candidates.
Our research found that to effectively increase diversity, all nominating Commissions must add systematic recruitment to their repertoires. Expanding the pool of applicants at the start of the process is a key ingredient to ensuring a diverse “short list” and ultimately a diverse bench. On the other hand, Commissioners should also take seriously their role as background-checkers. Because judges appointed through these systems are subject to little public scrutiny, Commissions must properly vet who is eligible to sit on the bench.
In light of our research, we offer nominating Commissions a set of ten best practices to attract the brightest female and minority candidates to the judiciary, including:
- 1. Grapple fully with implicit bias. Cognitive scientists have focused attention on the widespread tendency to unwittingly harbor implicit bias against disadvantaged groups. Fortunately, these biases are mutable. Thus, by acknowledging that this tendency exists, Commissions can take steps to counteract their biases.
- 2. Increase strategic recruitment. The first step in ensuring a diverse applicant pool is making sure that an open judicial seat is widely advertised and that all candidates are welcomed to apply.
- 3. Be clear about the role of diversity in the nominating process in state statutes. Many Commissioners we interviewed felt that there was no consensus on how diversity should be considered during the nominating process. Commissions should have clear parameters of when and how diversity can come into play. Such clarity can be laid out in a statute.
- 4. Keep the application and interviewing process transparent. Let candidates know what to expect when they submit their applications, and keep interviews consistent among candidates. Outlining the nominating process for all candidates will ensure that each applicant is treated in a similar way.
- 5. Train Commissioners to be effective recruiters and nominators. Commissioners need clear standards and appropriate training.
- 6. Appoint a diversity compliance officer or ombudsman. States should hold someone accountable for a state’s success or failure to achieve meaningful diversity on the bench. A diversity ombudsman would be in charge of monitoring diversity levels and improv- ing outreach efforts.
- 7. Create diverse Commissions by statute. A diverse Commission, for various reasons, is more likely to facilitate a more diverse applicant pool. States should adopt statutes that clearly encourage a diverse Commission.
- 8. Maintain high standards and quality. Creating a diverse bench can be done without sacrificing quality. All local law schools have female and minority graduates and these can be the source of many judicial applicants. Recruitment should also expand to candidates who graduated from top national schools, as these schools often have far more diverse alumni than local law schools.
- 9. Raise judicial salaries. State leaders should keep an eye on judicial salaries to assure that they are high enough to attract the best lawyers and lure diverse candidates out of law firms and onto the bench.
- 10. Improve record keeping. Currently, many of the states we studied did not keep rigorous data on judicial applicants. Keeping a record of the racial and gender makeup of the applicant pool and how candidates advanced through the nomination process will make it much easier for Commissions to track their own progress on issues of diversity.
The good news is that law school populations over the past 20 years (from 1986 to 2006) have been steadily growing more diverse. This pipeline of diverse new talent presents a real opportunity for state courts to increase the gender and racial diversity of its judges over the coming years. However, improvements in the appointment process are necessary to avoid missing this opportunity; since diversifying the bench requires more than just the mere existence of more female and minority attorneys; it requires an intentional and systematic approach to ensure that this diversity is reflected on the bench, including leadership by Governors, Chief Justices and other high ranking officials who can set the proper inclusive tone.
As a matter of fairness, the Brennan Center urges states that nominate judges to marshal their resources and rethink their appointment processes in order to attract talented female and minority attorneys to the state bench.
Fair Courts Project
The Brennan Center’s Fair Courts Project works to preserve fair and impartial courts and their role as the ultimate guarantors of equal justice in our constitutional democracy. Our research, public education, and advocacy focus on improving selection systems (including elections), increasing diversity on the bench, promoting measures of accountability that are appropriate for judges, and keeping courts in balance with other governmental branches.
About the Authors
Ciara Torres-Spelliscy is Counsel for the Democracy Program at the Brennan Center for Justice, working on Fair Courts and Campaign Finance Reform Projects. Ms. Torres-Spelliscy earned her B.A. magna cum laude from Harvard in the Afro-American Studies Department. She earned her J.D. from Columbia Law School. She is the co-author along with Ari Weisbard of What Albany Could Learn from New York City: A Model of Meaningful Campaign Finance Reform in Action, 1 Albany Gov’t L.R. 194 (2008). In addition to her scholarship, she provides constitutional and legislative guidance to law makers who are drafting bills. Before joining the Center, Ms. Torres-Spelliscy worked as an associate in at the law firm of Arnold & Porter LLP and was a staff member of Senator Richard Durbin.
Monique Chase is a Research Associate in the Democracy Program at the Brennan Center for Justice, where she works on the Brennan Center’s Fair Courts Project. Prior to joining the Brennan Center, Ms. Chase was a paralegal at the Law Offices of Jordan S. Katz, P.C. She has also interned at the New York State Supreme Court, 10th Judicial District and the Village of Hempstead Justice Court. Ms. Chase received her B.A. in Philosophy, Politics & Law from Binghamton University in 2006.
Emma Greenman was a 2007 Brennan Center summer intern and will complete a joint JD/MPP degree with Berkeley Law School and the John F. Kennedy School of Government in 2009. She serves as a member of the California Law Review and the Director of the Youth Voting Rights Institute for the National Democratic Law Students Council.
Susan Liss is the Director of the Democracy Program, supervising the Center's work on Voting Rights and Elections, the Right to Vote, Money and Politics, Fair and Independent Courts, Census and Redistricting, and New York State Government Accountability. In her 30-plus year legal career, she has worked for a number of constitutional, civil rights and women's organizations, including the Alliance for Justice, Citizens' Commission on Civil Rights, People for the American Way, and the National Women's Law Center. During the Clinton-Gore administration, she served at the Department of Justice as Deputy Assistant Attorney General for Policy Development and as Chief of Staff and Counselor in the Civil Rights Division. She also served as Chief of Staff to Mrs. Gore and Special Counsel to the Vice President.