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Approaching the Whites-Only Bench

The most cowardly thing about our justice system: The lack of racial diversity on the bench. And it exists whether judges are appointed or elected, and is found on every level of our justice system.

Published: February 26, 2009

Originally posted at The Root.

For state court watchers, last month provided a rare and historic moment to savor: A black governor was tasked with replacing the most powerful judge in the state, who happened to be a woman. Another small chance to make history, perhaps?

But when New York Gov. David Paterson looked at the short list of candidates presented to him to succeed Judith Kaye, the trailblazing Court of Appeals chief judge, all were male, and six of the seven candidates were white.

His hands tied by legal precedent, Paterson nominated a white man. But at the time, he publicly lamented the limited pool of candidates: “I firmly believe that we must revise the process for future judicial nominations to ensure that those under consideration represent all New Yorkers.”

The problem is the same across the country where many state courthouses still seem to have a “Whites Only” sign on display when it comes to the appointment of judges. Even in racially diverse states, racial diversity of the courts is either nonexistent or far from reflective of the general population. Today, white males are overrepresented by nearly 2-to-1 on state appellate benches compared with the general population.

Why does this matter? Because, as we are often reminded, we are a nation of laws. We resolve or differences in courtrooms ans most legal disputes in America are decided in state courts, so when those courts don’t reflect the broad range of constituencies that come before them, they have less credibility when it comes to fairly resolving our conflicts.

The lack of racial diversity exists regardless of whether states elect or appoint judges. I recently co-authored a study by the Brennan Center for Justice at NYU School of Law, Improving Judicial Diversity, which looked at the judicial appointment systems in 10 states. What we found is that that diversity on the bench often lags behind that of the general population, and even behind that of lawyers and law students. Put another way, there are plenty of minority—and, for that matter, female—lawyers in these states, but they are not becoming judges.

Of the 10 states we studied, four had all-white supreme courts. And women remain sorely under-represented on many state courts, despite the fact that law schools and bar associations are reaching gender parity.

The causes for this lack of diversity vary. But a couple of things seem to perpetuate the pattern: First, nominating commissioners may underestimate, consciously or unconsciously, the ability of minority candidates. Second, and even more troubling, minority candidates may underestimate their chances of becoming a judge and therefore fail to apply. As one commissioner interviewed by the Brennan Center noted, a number of lawyers of color view their race as a liability in the judicial nominating process, when precisely the opposite should be true.

Many of the nominating commissions have no mandate to actively recruit potential judges. Instead, they wait for candidates to come to them. This is a poor strategy for achieving a diverse bench because in many states, judicial openings occur at odd intervals when a judge retires or dies. Many highly qualified lawyers may be unaware that a judicial opening even exists.

The lack of diversity on state benches is a complex problem, and there is no silver bullet to fix it. But a few basic changes would help. First, the commissions that nominate judges should expand outreach to all lawyers and target minority lawyers for recruitment. Second, judicial salaries should be raised to attract the best and the brightest minority lawyers from the private sector to the bench. Third, keeping demographic records of applicants and nominees would make it easier for states to keep track of their progress with respect to diversity. As we found in our study, many states do not keep any statistics on diversity and recruitment, making it difficult to recognize, let alone fix, the problem. And fourth, states with nominating commissions should enact a mandate to improve diversity, as Florida and New Mexico have done.

The good news is that law school populations over the past 20 years have grown steadily more diverse. This pipeline of new talent presents a real opportunity for state courts to increase the gender and racial diversity of its judges in coming years.

Improvements in the appointment process are necessary to avoid missing this opportunity. Diversifying the courtroom requires more than a greater number of female and minority attorneys. It requires an intentional and systematic approach to ensure that the array of colors and walks of life that appear before the state bench are matched by an equal diversity on the bench.