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.