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Toward an Understanding of Judicial Diversity in American Courts Michigan Journal of Race and Law Volume 10 2004 Toward an Understanding of Judicial Diversity in American Courts Barbara L. Graham University of Missouri - St. Louis Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Courts Commons, Judges Commons, Law and Race Commons, and the Law and Society Commons Recommended Citation Barbara L. Graham, Toward an Understanding of Judicial Diversity in American Courts, 10 MICH. J. RACE & L. 153 (2004). Available at: https://repository.law.umich.edu/mjrl/vol10/iss1/5 This Symposium Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. TOWARD AN UNDERSTANDING OF JUDICIAL DIVERSITY IN AMERICAN COURTS BarbaraL. Graham* IN TRO D U C T IO N ........................................................................ 153 I. UNDERSTANDING JUDICIAL DIVERSITY .................................... 158 II. JUDICIAL DIVERSITY AND THE FEDERAL BENCH ....................... 161 A. Article III Courts andJudicial Diversity .......................... 162 B. Article I Courts andJudicial Diversity............................ 164 C. Judicial Diversity and Federal Executive Agency Judgeships ... 168 D. Summary Analysis of Federal Court Diversity................... 169 III. JUDICIAL DIVERSITY AND THE STATE BENCH ............................ 171 C O N C LU SIO N ............................................................................. 179 A PPE N D IX .................................................................................... 181 INTRODUCTION The lack of racial and ethnic diversity at the capstone of the legal pro- fession, the judiciary, is one of the most compelling and contentious issues surrounding judicial selection in the United States. In broad perspective, the lack ofjudicial diversity overlaps a range of other important issues in- volving the judicial system:judicial independence, public confidence in the courts, and the commitment to democratic principles of equality and jus- tice. Notwithstanding some recent efforts toward diversifying federal and state courts, the racial and ethnic compositions of the courts of general and limited jurisdiction are overwhelmingly White. The nature and extent to which our nation's courts are racially and ethnically diverse have not been given adequate and systematic treatment at the federal or state level. This Article attempts to advance our understanding ofjudicial diversity by pre- senting an empirical investigation and analysis of the racial and ethnic composition of the American judiciary in 2001.1 * Associate Professor of Political Science, University of Missouri-St. Louis; B.A., Virginia State University; Ph.D.,Washington University in St. Louis. This research has greatly benefited fiom my participation in the "Diversity, Impartiality, and Representation on the Bench" symposium, co-sponsored by the Brennan Center forJustice at NYU School of Law and the Department of Political Science at North Carolina Central University, in February 2004. Many of the comments made were extremely helpfiil in understanding the complexities of judicial diversity from a range of perspectives. I especially would like to thank the Michigan Journal of Race & Law for publishing this Article on the very important topic ofjudicial diversity and representation on the bench. 1. Although gender diversity on the federal and state benches is another important component to the scholarly analysis and debate concerning judicial diversity,it is not addressed in this study because of data limitations. Both male and female judges of color are included in the analysis. For studies on gender diversity, see ELIZABErH CHAMBLISS, Mirus To Go: PROGRESS 154 Michiganjournalof Race & Law [VOL. 10:153 The nature and extent to which our nation's courts are racially and ethnically diverse deserve additional scrutiny. First, a rigorous investigation of judicial diversity must be approached from a broader perspective that considers all people of color seeking representation on our nation's courts. Early studies ofjudicial diversity centered on African American diversity on federal and state courts during the 1970s and 1980s.1 The literature about Latina/o 3 and Asian/Pacific Islander4 representation on the courts is still emerging. Informed by critical race theory, this Article investigates the lack of judicial diversity from the perspective of intergroup representation on the bench. It analyzes the presence ofAfrican Americans,Asian/Pacific Island- ers, Latina/os, and American Indianjudges on both federal and state courts. This Article departs from the Black-White paradigm5 framework to study the impact of race and ethnicity onjudicial selection and therefore presents a broader and more inclusive examination ofjudicial diversity. OF MINORITIES IN THE LEGAL PROFESSION (2000); DEBORAH L. RHODE, THE UNFINISHED AGENDA: A REPORT ON TIlE STATUS OF WOMEN AND THE LEGAL PROFESSION (2001); Susan Carbon et al, Women on the State Bench: Their Characteristicsand Attitudes AboutJudicial Selection, 65JUDICATURE 295 (1982); Mark S. Hurwitz & Drew Noble Lanier, Women and Minorities on State and FederalAppellate Benches, 1985 and 1999, 85 JUDICATURE 84 (2001); Elaine Martin, Gender and Judicial Selection: A Comparison of the Reagan and Carter Administrations, 71 JUDICATURE 136 (1987); Donald R. Songer et al., A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts ofAppeals, 56J. Pot. 425 (1994); Rorie L. Spill & Kathleen A. Bratton, Clinton and Diversification of the FederalJudiciary, 84 JUDICATURE 256 (2001). 2. See, e.g., FUND FOR MODERN COURTS, THE SUCCESS OFWOMEN AND MINORITIES IN AcmiEVINGJUDICIAL OFFICE:THE SELECTION PROCESS (1985);American Judicature Society, The Black Judge in America:A Statistical Profile, 57JUDICATURE 18 (1973); Beverly Blair Cook, Black Representation in the Third Branch, 1 BLACK L.J. 260 (1972);Barbara L. Graham,JudicialRecruit- ment and Racial Diversity on State Courts:An Overview, 74JUDICATURE 28 (1990) [hereinafter Graham,JudicialRecruitment]. 3. See, e.g., Maria Echaveste, Brown to Black: The Politics ofJudicialAppointmentsfor Lati- nos, 13 BERKELEY LA RAZA L.J. 39 (2002); Kevin R.Johnson, On the Appointment ofa Latinalo to the Supreme Court, 13 BERKELEY LA RAZA LJ. 1 (2002) (published concurrently in 5 HARV. LATINO L. REV. 1 (2002)); Miguel A. M~ndez & Leo P Martinez, Toward a Statistical Profile of Latina/os in the Legal Profession, 13 BERKELEY LA RAzA L.J. 59 (2002); ANGELO FALC6N, OPEN- ING THE COURTHOUSE DOORS: THE NEED FOR MoRE HISPANIC JUDGES (2002), available at http://www.prldef.org/lib/Judges2000.pdf. 4. See Edward M. Chen, The Judiciary,Diversity, andJusticeforAll, 91 CAL. L.REV. 1109 (2003); Pat K. Chew, Asian Americans in the Legal Academy:An Empiricaland Narrative Profile,3 ASIAN L.J. 7 (1996); Denny Chin, Access to the Legal Professionfor Minorities: Introductory Re- marks, 1999 J. INST. FOR STUD. LEGAL ETHICS 49 (1999) [hereinafter Chin, Access to the Legal Professionfor Minorities];Ming W. Chin, Keynote Address, Fairness or Bias? A Symposium on Racial and Ethnic Composition andAttitudes in theJudiciary,4 ASIAN L.J. 181 (1997) [hereinafter Chin, Fairness or Bias?];Dorothy Chin-Brandt, Neither Madame Butterfly Nor the Dragon Lady: Rather,Ms.Justice, 20 HARv.WOMEN'S L.J. 27 (1997). 5, See Juan F Perea, The Black! White Binary Paradigm of Race:The "Normal Science" of American Racial Thought, 85 CAL. L. REv. 1213, 1219-32 (1997) (explicating the Black-White paradigm concept). FALL 2004] Toward an Understanding ofJudicial Diversity A second reason to study judicial diversity is its relationship to the debate about how to select our nation's judges, a debate that is especially contentious at the state level. States use a range of selection methods: parti- san election, nonpartisan election, gubernatorial appointment, gubernatorial appointment from a commission, gubernatorial appointment from a com- mission with some form of legislative approval, legislative appointment, state supreme court appointment, and circuit court appointment. A central part of the discussion focuses on whether racial and ethnic groups are more likely to reach the bench through elections or appointive methods.7 In a 2000 study on the progress of minorities in the legal profession, Elizabeth Chambliss observed that," [w]ithout current state-specific data on minority representation among judges ... it is difficult to assess the effects on diver- sity of appointive versus elective systems." 8' This Article informs the debate about judicial selection by documenting the lack of diversity at both the federal and state levels. A third reason additional research on judicial diversity is needed is that such investigation provides insight into the prominent role race and ethnicity play in the formal process of judicial recruitment and selection. Harry Stumpfnotes that "considerations of race/ethnicity and gender are as much a part ofjudicial recruitment politics as are factors such as party, ide- ology, or professional merit."' The variables of race and ethnicity, according to Stumpf, "are increasing in importance as women and racial/ethnic inter- est groups intensify their respective voices for a greater share of seats on our federal courts."'1 Attempts to
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