Balancing the Scales of Justice Timed Agenda
March 31, 2017 1 PM – 4 PM
1:00 – Welcome and Introductions Judge Rachel Kretser 1:10 – Opening Remarks Judge Leslie Stein 1:15 – Greeting Judge Thomas Breslin 1:20 – Documentary (“Blazing a Trail: Pioneering Women Judges of the Third Judicial District”) 1:50 – Observations Susan Arbetter 2:00 – Diversity and Appellate Decision Making Prof. Vincent Bonventre 2:20 – Break 2:30 – Appellate Perspective Justices Karen Peters and Elizabeth Garry 3:00 – Trial Judges' Perspective Judges Rachel Kretser and Helena Heath 3:20 – Intersection of Judicial Diversity & Implicit Bias in the Courtroom Prof. Melissa Breger 3:50 – Q+A and Closing Remarks Judge Rachel Kretser
New York State Bar Association Judicial Diversity: A Work in Progress
New York State Bar Association Judicial Section September 2014 This report was approved by the New York State Bar Association Executive Committee on September 17, 2014
New York State Bar Association
Judicial Section
JUDICIAL DIVERSITY: A WORK IN PROGRESS
This report was approved by the New York State Bar Association Executive Committee on September 17, 2014
New York State Bar Association, Judicial Section Judicial Diversity in New York State: A Work in Progress
Table of Contents
Introduction page 1
Why Diversity Matters page 1
Executive Summary page 3
Benchmarks of Judicial Diversity in NY State Courts page 11
African Americans page 12
Asian Pacific Americans page 19
Hispanics/Latinos page 26
Lesbians, Gay Men, Bisexuals & Transgender page 35
Native Americans page 38
Women page 40
Law Schools page 45
Recommendations page 46
Conclusion page 47
Appendix page 49
Acknowledgements page 59
Judicial Diversity Committee Back Cover
JUDICIAL DIVERSITY IN NEW YORK STATE: A WORK IN PROGRESS
INTRODUCTION Diversity matters in commerce, the professions, government, and academia. But nowhere is it more important than in the judiciary, the branch of government charged with safeguarding our country’s constitutional democracy and dispensing justice to its citizenry. It is the ability to petition the courts that keeps people from seeking justice in the streets. If we are to successfully encourage the public to entrust disputes to our courts, we must endeavor to close the confidence gap that seemingly exists among certain demographic groups in our society. Statistics show that only sixty percent of Latino voters and fifty-one percent of African- American voters in New York State trust our state’s judges to be fair and impartial, as compared to seventy-six percent of Caucasian voters.1 This report attempts to advance our understanding of judicial diversity and inclusion through an analysis of the gender, racial, and ethnic composition of New York State’s judiciary as compared with the general population and the population of attorneys. The data is broken down by judicial district to illustrate regional differences that will allow us to target diversity efforts to the areas most in need of improvement, and to showcase districts that reflect and promote diversity. The analysis utilizes data compiled primarily by the Office of Court Administration reflecting the latest available census figures. This report also provides accounts of both recent and historical judicial diversity achievements in New York State, and recognizes the judicial pioneers whose courage and perseverance have paved the way for a more diverse bench in New York State.
WHY DIVERSITY MATTERS No one can seriously question that the life experiences of people differ, and that those differences impact individuals’ views and perceptions. Men and women, and Caucasians and minorities, do not always view the world in the same way. It is this common sense premise that has shaped the increasing body of law protecting defendants’ fundamental right to a true jury of
1 Mark H. Alcott, Achieving Gender and Ethnic Diversity in the Profession, 78 N.Y. ST. B. J., Nov.–Dec. 2006, at 6.
1 of 60 their peers.2 Every day judges apply the law to the facts or real life experiences of the litigants appearing before them; it is only logical that judges’ own life experiences may color their perceptions of those facts. Since more cases are decided by judges than juries, it is just as critical to ensure that the state’s judiciary reflects the population it serves.
As former Chief Judge Judith Kaye observed, a diverse bench gives the public a belief that they are included in the justice system.3 There is value in symbolic representation—seeing someone who looks like you on the bench. Yet it is more than just the perception of fairness that impacts judicial efficacy. It is the actual quality of justice that suffers when judicial diversity is lacking. Although we know this intuitively, empirical studies have also confirmed that diverse judges decide certain types of cases differently than their white male colleagues and that minority and female judges on appellate benches can also influence the decisions of their colleagues and improve the collective decision-making process.4
In short, judicial diversity is essential because it provides equal opportunity to under- represented groups, presents role models to encourage our youth, inspires confidence in our justice system and, most importantly, promotes justice. New York’s demographics are changing, and the judiciary must keep pace or risk undermining the public’s confidence in our justice system and respect for the rule of law.
2 See Batson v. Kentucky, 476 U.S. 79 (1986). 3 Archibald R. Murray & Judith S. Kaye et al., The Road to the Judiciary: Navigating the Judicial Selection Process, 57 ALB. L. REV. 973, 975 (1994). 4 See Pat K. Chew & Robert E. Kelley, Myth of the Color Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 WASH. U. L. REV. 1117, 1156–58 (2009); Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 COLUM. L. REV. 1, 51–52 (2008); Jennifer L. Peresie, Female Judges Matter: Gender and Collegial Decision Making in the Federal Appellate Courts, 114 YALE L.J. 1759, 1787 (2005).
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EXECUTIVE SUMMARY New York State has one of the most diverse populations in the United States, 5 but the rich multiracial, multi-cultural tapestry of New York’s people is not adequately reflected in its judiciary, particularly on monochromatic benches in certain upstate districts.
Judicial Departments and Judicial Districts Administratively, New York’s sixty-two counties are divided into thirteen Judicial Districts and four Judicial Departments. The First Department includes the First and Twelfth Judicial Districts, comprising New York County and Bronx County respectively. The Second Department includes the Second, Ninth, Tenth, Eleventh, and Thirteenth Judicial Districts, comprising Brooklyn, Queens, Staten Island, Long Island, Westchester, and the four counties immediately west and north of Westchester.6
The Third Department includes the Capital District and comprises the Third, Fourth, and Sixth Judicial Districts. This twenty-eight county department spans from Sullivan County north to the Canadian border and extends west across the southern tier.7 Finally, the Fourth Department is comprised of the Fifth, Seventh, and Eighth Judicial Districts in Central and Western New York, encompassing twenty-two counties including the cities of Syracuse, Rochester, and Buffalo.8
5 New York State ranks fourth of fifty-one states in diversity in the United States. Diversity in the Classroom, N.Y. TIMES, Dec. 23, 2011; see Kamille Wolf, Out of Many, One People; E Pluribus Unum: An Analysis of Self-Identity in the Context of Race, Ethnicity, and Culture, 18 AM. U. J. GENDER SOC. POL’Y & L. 747, 768 (2010). 6 The Second Department includes the following counties: Kings, Queens, Richmond, Nassau, Suffolk, Duchess, Orange, Putnam, Westchester, and Rockland. 7 The Third Department includes the following counties: Albany, Columbia, Greene, Rensselaer, Schoharie, Sullivan, Ulster, Clinton, Essex, Franklin, Fulton, Hamilton, Montgomery, St. Lawrence, Saratoga, Schenectady, Warren, Washington, Broome, Chemung, Chenango, Cortland, Delaware, Madison, Otsego, Schuyler, Tioga, and Tompkins. 7 The Fourth Department includes the following counties: Herkimer, Jefferson, Lewis, Oneida, Onondaga, Oswego, Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne, Yates, Allegany, Cattaraugus, Chautauqua, Eric, Genesee, Niagara, Orleans, and Wyoming counties.
3 of 60 Figure 1. Map of the four Departments of the New York Supreme Court, Appellate Division
First Department
Second Department
Third Department
Fourth Department
Source: Wikipedia, 20 May 2011
This report’s statistical findings reveal a sharp divide between upstate and downstate judicial departments, which is only partially explained by geographic differences in minority populations. The data show that in New York State 93% of all minority Supreme Court Justices, and 60% of female Supreme Court Justices, were elected in New York City.
Women account for 52% of New York’s total population, yet on the bench only 35% are women.9 In the First Department the Caucasian population comprises only 44% of the total population, but represents 65% of the judiciary, with 46% women. In the Second Department, Caucasians comprise 59% of the total population but represent 78% of the judiciary, with 38% women judges. Caucasians comprise 89% of the total population in the Third Department but account for 99% of the judiciary, with only two minorities serving on the bench in the entire Department, and no minorities on the Supreme Court. Women are also vastly under-represented, comprising only 19% of the judiciary in the Third Department. In the Fourth Department, Caucasians comprise 85% of the population and 94% of the judiciary, with 26% women judges.
9 Statistics based on 2010 United States Census and 2014 Office of Court Administration data.
4 of 60 Table 1. Comparison of Caucasian Population to Caucasian Judges
Caucasian Population Caucasian Judges Department 1 44% 65% Department 2 59% 78% Department 3 89% 99% Department 4 85% 94% New York State 67% 81%
Figure 2. Charts of New York State Population by Gender and New York Judiciary by Gender New York State NY Judicial Department 1
Population Women Men Judges Judges Male 54% Female 48% 46% 52% NY Judicial Department 2
Women Men Judges Judges 38% 62%
New York State NY Judicial Department 3 Women Judiciary Men Men Judges Women Judges Judges 19% Judges 81% 35% 65%
NY Judicial Department 4 Women Men Judges Judges 26% 74%
Sources: New York State population is based on 2010 US Census Data and Judiciary Gender is based on 2014 Office of Court Administration data.
5 of 60 The statistics reveal that the Asian Pacific American population is under-represented throughout the state in comparison to their numbers in the population and in the bar. African- Americans and people of Hispanic heritage are under-represented in all but the First Judicial Department, and women and minorities are significantly under-represented in the Third and Fourth Judicial Departments.
The First and Second Departments collectively encompass twelve counties and have a much more diverse Supreme Court bench than their upstate sister departments. In the First Department, there are 27 women and 28 minority Supreme Court justices. In the Second Department, there are 47 women and 34 minorities on the Supreme Court. The Third Department, which encompasses 28 counties in upstate New York, has never elected a minority to the Supreme Court bench since the court system was created more than 300 years ago.10 The Fourth Department encompasses 22 counties in central and western New York and currently has 17 women and two minorities on the Supreme Court bench. Statewide, a total of 95 women and 64 minority justices serve on the Supreme Court, the vast majority of whom sit in the New York City metropolitan area and surrounding suburbs.
10 New York State’s court system traces its roots back to the seventeenth century. See Daniel C. Brennan, The History and Justices of the Appellate Division, Third Department: 1896 to the Present, N.Y. COURTS 3 (rev. ed. July 2014), available at http://www.courts.state.ny.us/ad3/History.pdf.
6 of 60 Judicial Districts: Figure 3. Map of New York State Judicial Districts
source: www.nycourts.gov
The striking gender disparity among the upstate and downstate Judicial Districts is difficult to explain given the fact that women comprise 52% of the overall population and 35% of the attorney population statewide.11 In the First Judicial District (New York County), for example, women make up 60% of the Supreme Court Justices, while in the Third Judicial District (Albany, Rensselaer, Ulster, Columbia, Green, Sullivan and Schoharie counties), there is not a single woman on the trial level Supreme Court bench. Such a vast gender gap—60% in one district and 0% in another—is troubling given the fact that the pool of female attorneys in
11 The percent of women attorneys is based on the latest available census figures (2010) and has likely increased to 39% today in view of 48%-50% female law school graduation rates over the intervening five year period.
7 of 60 both districts is very similar. Since there are just as many qualified women upstate, the disparity can be attributed only to a lack of access and opportunity. Figure 4. Gender Diversity
New York State New York State Population Attorneys
Female Male Female Male 35% 65% 52% 48%
Judicial District 1 Judicial District 3 Supreme Judges Supreme Judges
Female Female Male 60% Male 100% 40% 0%
12
The Diversity Report Card People of color and women remain significantly under-represented on the bench. This under-representation most starkly manifests in our upstate judicial districts, but can also be observed in certain downstate districts with large minority populations. Statistical findings highlight the critical need for more determined and sustained efforts to pipeline minority lawyers into the judicial cohort, and recruit minorities to the legal profession. Our analysis shows that efforts in the First and Second Departments have succeeded in increasing the numbers of minorities and women on the bench. We observe that in many downstate judicial districts the percentage of minority and women judges often matches or exceeds the percentage of minority and women lawyers. We further note that in some judicial
12 Charts “Judicial District 1 and 3 Supreme Judges” refer to Trial Level Supreme Court Justices and do not include acting Supreme Court Justices or Supreme Court Justices who have been elevated to the Appellate Division.
8 of 60 districts, the percentage of minority judges even approximates or exceeds the percentage of minorities in the local population. Although these statistics suggest commendable progress, the numbers also show that in some downstate judicial districts, under-representation of certain minority groups – especially Asians and Hispanics – persists. The Third and Fourth Departments, by contrast, lag far behind the First and Second Departments with respect to both minority and female representation on the bench. In the Fourth Department, the percentage of minorities in the general population exceeds the percentage of minorities on the bench. The percentage of women in both the general population and in the bar significantly exceeds the percentage of women on the bench in the Fourth Department. The picture is even more abysmal in the Third Department. The Third Department has a higher percentage of minority attorneys than minority judges, and has more than ten times the percentage of minorities in the general population than on the bench. Moreover, there are almost triple the percentage of women in the general population than on the bench in the Third Department. One may posit that very large minority populations downstate—in contrast to the relatively small minority populations upstate—create a “critical mass” that makes possible robust representation of minority judges in the First and Second Departments. Certainly, it would be reasonable to suggest that a significant minority population creates a social and political environment that makes proportional representation far easier to achieve. However, the critical mass theory cannot explain the poor representation of women upstate. Moreover, even if minorities face formidable barriers because of their relatively low population numbers upstate, it only underscores the need for a concentrated and sustained effort to improve judicial accessibility and minority representation. We hope that the findings contained in this report will cultivate a new mindset amongst the party leaders and appointing officials who stand as gatekeepers to our state’s judiciary.
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BENCHMARKS OF JUDICIAL DIVERSITY IN NEW YORK STATE COURTS
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AFRICAN AMERICANS Prepared by the Hon. Antonio I. Brandveen
Judge Francis E. Rivers (1893–1975)13
In 1943 Judge Rivers became the first Black judge on the City Court of New York. “A 1943 Time magazine article described him as ‘a Yale Phi Beta Kappa, a Columbia L.L.B., a first lieutenant in World War I and an assistant district attorney of the State of New York.’”14 Before taking the bench, Judge Rivers was a member of the New York State Assembly from the 19th District, New York County.
Judge Charles Toney (1880–1951)15
Judge Charles Toney, joining the bench with Judge James Watson (see below), was one of the first African-American jurists in New York State. He was elected to the Municipal Court of the Tenth Municipal Court District, Manhattan in 1930 (later the Civil Court of the City of New York), and maintained his seat until 1950. Judge Toney was born in Alabama and studied at Syracuse University. He began practicing law in New York in 1905. Active in community affairs in Harlem, he also served on the board of directors of the N.A.A.C.P. From 1931 until his death, Judge Toney lived on Sugar Hill in Harlem.
Judge James Watson (1882–1952)16
Judge James Watson emigrated as a young man from Jamaica in 1905 and received his LL.B. from the New York University School of Law in 1913. He was elected to the Tenth Municipal Court District, Manhattan in 1930, along with Judge Toney (see above), and he earned
13 David Foote Rivers, TENNESSEE STATE LIBRARY AND ARCHIVES, http://www.tn.gov/tsla/exhibits/blackhistory/rivers.htm (last visited Sep. 1, 2014). 14 Id. 15 See Editorials, 58 CRISIS 258, 259 (1951). 16 See ALUMNI CONNECTIONS (New York Law School), June 2007, at 2, available at http://alumni.nyls.edu/Document.Doc?id=16.
12 of 60 a reputation as one of the most able and popular judges in New York. He retired from the bench in 1950.
Judge Harold A. Stevens (1907–1990)17
Judge Harold A. Stevens was born on October 19, 1907 in John’s Island, South Carolina. He graduated from Benedict College in 1930 and Boston College Law School in 1936. Judge Stevens was admitted to the Bar in Massachusetts, New York, and South Carolina, as well as the United States Supreme Court. A member of the New York State Assembly from 1947 to 1950, Stevens was elected as a Judge of the Court of General Sessions in 1951 and remained in that position until 1955. Appointed a Justice of Supreme Court, First Judicial District (then New York and Bronx Counties) by Governor Harriman on July 6, 1955, he became the first Black person to hold that position. In November 1955 he became the first Black Justice to be elected to a fourteen-year term in the Supreme Court. The “firsts” continued: in January 1958 he was appointed to the Supreme Court, Appellate Division, First Judicial Department, the first Black person to hold that position. On January 1, 1969, he became the first Black Presiding Justice of the First Department. On January 7, 1974, he was appointed to the New York Court of Appeals as the court’s first Black judge.
Judge Fritz W. Alexander, II (1926–2000)18
Judge Fritz W. Alexander, II, Associate Judge of the Court of Appeals, was born in Apopka, Florida on April 24, 1926. He received an A.B. from Dartmouth College in 1947 and an LL.B. from New York University School of Law in 1951. A founding partner of Dyett, Alexander & Dinkins, Judge Alexander later became the District Director of the Upper Manhattan Rent Office. He was elected as a Judge of the New York City Civil Court in 1970 and as a Justice of the New York State Supreme Court in 1976. In 1982, Governor Hugh L. Carey appointed Judge Alexander to the Appellate Division, First Department. He was appointed to serve as a member of the New York State Commission on Judicial Conduct by
17 Harold A. Stevens, NEW YORK UNIFIED COURT SYSTEM, available at http://www.nycourts.gov/courts/ad1/centennial/Bios/hastevens2.shtml (last accessed Sept. 1, 2014). 18 Fritz W. Alexander II, NEW YORK UNIFIED COURT SYSTEM, available at http://www.nycourts.gov/courts/ad1/centennial/Bios/fwalexander2.shtml (last accessed Sept. 1, 2014).
13 of 60 Governor Carey in 1979 and was reappointed by Governor Mario M. Cuomo four years later. A long-time resident of Manhattan, Judge Alexander was a Trustee of the Law Center Foundation of New York University, Past President of the Dartmouth College Black Alumni Association, President of the Harlem Lawyers Association, and former Vice President of the Association of the Bar of the City of New York. Additionally, Judge Alexander was active in the National Bar Association, American Bar Association, Metropolitan Black Bar Association, and New York State Bar Association. Judge Alexander was appointed as an Associate Judge of the Court of Appeals by Governor Mario M. Cuomo on January 2, 1985. He was the first Black judge appointed to a full term on the court.
Judge Walter H. Gladwin (1903–1988)19
Judge Walter H. Gladwin was the first Black person to become a New York City Criminal Court Judge and an assistant district attorney in the Bronx. He also served as an Assemblyman representing the Seventh Assembly District from 1953 to 1957, making him the first Black Assemblyman in the Bronx. After his appointment to the bench in 1957 by Mayor Robert F. Wagner, Judge Gladwin presided over a number of notable cases. One such case involved the stabbing of Adele Morales Mailer, who was the second wife of the author Norman Mailer. Judge Gladwin graduated from City College in 1936 and New York Law School in 1941.
Judge Jane Matilda Bolin (1908–2007)20
Judge Jane Matilda Bolin was the first Black woman to become a judge in the United States. Among other “firsts,” Judge Bolin was the first Black woman to graduate from Yale Law School, the first Black woman to join the New York City Bar Association, and the first Black woman to work in the office of the New York City Law Department. Judge Bolin was born in
19 Walter Gladwin, 85, Former Bronx Judge And Assemblyman, N.Y. TIMES, June 13, 1988, available at http://www.nytimes.com/1988/06/13/obituaries/walter-gladwin-85-former-bronx-judge-and-assemblyman.html. 20 Douglas Martin, Jane Bolin, the Country’s First Black Woman to Become a Judge, Is Dead at 98, N.Y. TIMES, Jan. 10, 2007, available at http://www.nytimes.com/2007/01/10/obituaries/10bolin.html?ex=1326085200&en=e1eb946e241febe6&ei=5090&p artner=rssuserland&emc=rss&_r=0.
14 of 60 Poughkeepsie, New York in 1908. Her father, Gaius C. Bolin, was the son of a Native-American mother and an African-American father. Her mother, the former Matilda Emery, was a white Englishwoman. Judge Bolin attended Wellesley College where she was one of two Black first- year students. At her graduation in 1928, she was named a Wellesley Scholar, a distinction given to the top 20 students in the class. At Yale Law School, Judge Bolin was one of only three women and was the only Black student in her class. Following her service in the office of the New York City Corporation Counsel, Judge Bolin was appointed to the Family Court by Mayor LaGuardia in 1939. She was reappointed by Mayors O'Dwyer, Wagner, and Lindsay, and served on the bench until 1978 when Judge Bolin reached the mandatory retirement age of 70. After retirement, Judge Bolin was a volunteer reading instructor in the New York City public schools and was appointed to the Review Committee of the New York State Board of Regents. Judge Bolin died in 2007 at the age of 99.
Judge Myles Paige (1899–1983)21
Mayor LaGuardia appointed Judge Myles Paige to a ten-year term on the New York City Magistrate’s Court in 1936 at the age of 38. He was the first Black person to hold that position. Admitted to practice law in 1925, Judge Paige later became a Deputy Attorney General in charge of the Workmen’s Compensation Division. Judge Paige, a Catholic and a member of the Fourth Degree of the Knights of Columbus, was an active civil rights worker in Harlem and headed the North Harlem Community Council. He was also a member of the Urban League, the National Executive Council, and the Alpha Phi Alpha fraternity. He was a commander of an American Legion post in Harlem and was a vice commander of a disabled veterans organization. Judge Paige was also a member of the Guild of Catholic Lawyers, the New York County Lawyers Association, and the Harlem Lawyers Association. He received a B.A. from Howard University where he played on the football team, and he received his LL.B. and LL.M. degrees from Columbia University Law School. Judge Paige lived in Harlem with his wife and two children.
21 See M.A. Paige, First Black to Be a City Magistrate, N.Y. TIMES, April 1, 1983.
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Judge Mary Johnson Lowe (1925–1999)22
Judge Mary Johnson Lowe was appointed to the New York City Criminal Court in 1971. Two years later she was appointed as an Acting Supreme Court Justice. Judge Lowe was elected to the Supreme Court in 1977, becoming the first Black female to hold that position. In 1978, President Jimmy Carter appointed her to the United States District Court for the Southern District of New York. She was the second African-American woman to be appointed to the federal bench. Judge Lowe served as a senior Judge from 1991 until her death in 1999. Judge Lowe received a B.A. from Hunter College of the City University of New York and graduated with honors from Brooklyn Law School in 1954 where she was the first Black Editor-in-Chief of the Brooklyn Law Review. The following year Judge Lowe received an LL.M from Columbia University School of Law. Judge Lowe was in private practice specializing in criminal trials from 1955 to 1971. She was a founding member of the Judicial Friends Association and the National Judicial Council of the National Bar Association. She also served as the New York Chair for Education and was the Bronx chapter president of the N.A.A.C.P.
Judge Samuel L. Green (1935–present)23
Judge Samuel L. Green was appointed Buffalo City Court Judge in November 1973. Five years later Judge Green was the first African-American male outside of New York City to be elected to the New York State Supreme Court, Eighth Judicial District. On February 25, 1983, then Governor Mario Cuomo appointed Justice Green to serve on the Appellate Division, Fourth Department. He was the first African-American to serve in that position. He also served as Acting Presiding Justice of the Appellate Division, Fourth Department. In 2002 Justice Green was designated by Chief Judge Kaye to serve on the Court of Appeals for the June Session. He retired from the Appellate Division in December 2011.
22 See Biography, Lowe, Mary Johnson, FEDERAL JUDICIAL CENTER, http://www.fjc.gov/servlet/nGetInfo?jid=1427&cid=999&ctype=na&instate=na. 23 See Biographies of Former Justices of the Appellate Division, Fourth Department, SUPREME COURT OF THE STATE OF NEW YORK, http://www.nycourts.gov/courts/ad4/Court/former.html (last accessed Sept. 1, 2014).
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Judge Moxey Rigby (1892–1962)
Judge Moxey Rigby, a native of Long Island and a graduate of Freeport High School, was the first African-American judge elected in Nassau County and the first Black elected official on Long Island. He was elected to the Nassau County District Court in 1959. He was also Vice Chairman of the Freeport Housing Authority. Judge Rigby worked as a waiter and saved up enough money to go to Law School. He graduated from New York Law School in 1925, and was admitted to the Bar in New York State that same year.
Judge Alfred Robbins (1926–2003)24
After graduating from Brooklyn Law School in 1957, Judge Alfred Robbins went to work for the Legal Aid Society. He moved to Hempstead, New York in the mid-1960s, and began working as an assistant district attorney. In 1971, Nassau County Executive Ralph Caso appointed Judge Robbins to the Nassau County District Court. He was subsequently elected to serve a full term in this position. In 1974, Judge Robbins became the first Black judge from Long Island to be appointed as the President of the Board of Judges in the District Court, and he later became the first Black judge on Long Island to be appointed as the Supervising Judge of that Court. Judge Robbins’ abilities were evident early in his legal career, and he rose to the position of Justice of the New York State Supreme Court in 1979. He was the first Black person elected to the Supreme Court on Long Island, in the Tenth Judicial District.
Judge Robert J. Mangum (1921–present)
Judge Robert Mangum graduated from City College in 1942. He received a masters degree in sociology from New York University and graduated from Brooklyn Law School in 1949. In 1967, Governor Nelson Rockefeller appointed Judge Mangum to the New York State Court of Claims. He was the first Black judge to hold that position. Judge Mangum resigned
24 Paid Notice: Deaths Robbins, Hon. Alfred, N.Y. TIMES, Oct. 8, 2003, available at http://www.nytimes.com/2003/10/08/classified/paid-notice-deaths-robbins-hon-alfred-s.html.
17 of 60 from the Court of Claims in 1978 and became General Counsel of Beth Israel Hospital in Manhattan.
Judge Sheila Abdus-Salaam (1952–present)25
Judge Sheila Abdus-Salaam was born in Washington D.C. in 1952. She received a B.A. from Barnard College in 1974 and a J.D. from Columbia Law School in 1977.
Judge Abdus-Salaam served as a staff attorney with the East Brooklyn Legal Services Corporation after graduating from law school in 1977. She moved to the New York State Department of Law in 1980, serving as an Assistant Attorney General in the Civil Rights and Real Estate Financing Bureaus. She remained in this position until 1988, when she became General Counsel for the New York City Office of Labor Services.
Judge Abdus-Salaam was elected to serve as a Judge on the New York City Civil Court in 1991. She was then elected to the Supreme Court, New York County in 1994 where she served with distinction, and was re-elected in 2008. She was subsequently appointed to serve as an Associate Justice of the Supreme Court, Appellate Division, First Department in April 2009, by Governor David A. Paterson.
In 2013, Judge Abdus-Salaam made history when Governor Andrew M. Cuomo appointed her as the first African-American woman judge to serve on the New York State Court of Appeals.
25 See Biography, Hon. Sheila Abdus-Salaam, Court of Appeals, NEW YORK STATE UNIFIED COURT SYSTEM, available at http://www.nycourts.gov/ctapps/jasalaam.htm.
18 of 60 ASIAN PACIFIC AMERICANS Prepared by the Hon. Doris Ling-Cohan
Asian Pacific Americans (APAs) have been in the U.S. for more than 264 years, since approximately 1750, when Filipino sailors settled in Louisiana.1 The first Japanese people to immigrate to the U.S. arrived on May 7, 1843.2
The first large-scale immigration of APAs into the U.S. occurred in 1848, with many immigrants from China being drawn to the U.S. during the California Gold Rush.3 Many subsequently immigrated to the U.S. to work as laborers building the country’s first transcontinental railroad, which was completed on May 10, 1869.4 However, immigration of APAs was severely curtailed due to regressive and discriminatory immigration laws, such as the Chinese Exclusion Act of 1882 (22 Stat. 58), the Geary Act of 1892 (27 Stat. 25), the Immigration Act of 1924 (43 Stat. 153), and the Tydings-McDuffie Act of 1934 (48 Stat. 456), which were lifted by the Immigration Act of October 1965 (79 Stat. 911).
For much of the period that Asians were permitted to be in the country, they were denied the right to become a citizen and hence the right to vote, which was repealed for all Asians by the Immigration and Nationality Act of 1952 (66 Stat. 163), also known as the McCarran-Walter Act.5 In addition, for many years Asians were not permitted to become lawyers in this country. On May 18, 1888, the New York Times reported that Hong Yen Chang—who was born in China, educated at Yale, was a law graduate of Columbia, and who was “recently naturalized”—
1 ANCESTORS IN THE AMERICAS, PROGRAM 1 - COOLIES, SAILORS AND SETTLERS: VOYAGE TO THE NEW WORLD, (PBS broadcast 1997), available at www.pbs.org/ancestorsintheamericas/program1_1.html. 2 Asian/Pacific American Heritage Month, Pub. L. No. 102-450, http://www.gpo.gov/fdsys/pkg/STATUTE- 106/pdf/STATUTE-106-Pg2251.pdf. 3 ANCESTORS IN THE AMERICAS, PROGRAM 2 - CHINESE IN THE FRONTIER WEST: AN AMERICAN STORY, (PBS broadcast 1997), available at www.pbs.org/ancestorsintheamericas/program2_1.html. 4 Asian/Pacific American Heritage Month, Pub. L. No. 102-450, http://www.gpo.gov/fdsys/pkg/STATUTE- 106/pdf/STATUTE-106-Pg2251.pdf. 5 There were earlier laws that eliminated barriers to naturalization for specific groups of Asians, however, it was not until the Immigration and Nationality Act of 1952 when all remaining laws that prevented Asians from becoming naturalized U.S. citizens were universally repealed.
19 of 60 became the “only regularly admitted Chinese lawyer in this country.”6 This was after the New York State Legislature had to pass a special law in 1887, which permitted him to again apply for admission to the Bar. The legislative act was required because he “was refused admission at the General Term in New York City” by Judge Van Brunt, despite the “[e]xamining Committee [finding] he passed a very credible examination, and was deservedly awarded a diploma.”7 Mr. Chang subsequently moved to San Francisco to practice law, but the California Supreme Court turned down his application to the Bar, citing the federal Chinese Exclusion Act of 1882 and California law.8
New York State - 8.6% of the Population
APAs have been in New York for more than 184 years, since the arrival of Chinese sailors and peddlers in New York in the 1830s.9 APAs or people of Asian Pacific descent represent an estimated 8.6% (1,680,905 people) of New York State’s population based on the 2012 American Community Survey provided by the U.S. Census Bureau.10 However, it is important to note that, as acknowledged by the U.S. Census Bureau, it undercounts APAs.11
6 A Chinese Lawyer, NY TIMES, May 18, 1888. 7 Id. 8 Ken Broder, UC Davis Law Students Want Chinese Attorney Admitted to Bar 124 Years after His Death, ALLGOV CALIFORNIA, http://www.allgov.com/usa/ca/news/unusual-news/uc-davis-law-students-want-chinese-attorney- admitted-to-bar-124-years-after-his-death-140513?news=853135 (last accessed Aug. 29, 2014). 9 HISTORICAL TIMELINE: SELECTED DATES AND EVENTS OF ASIAN PACIFIC AMERICAN HISTORY, WASH. STATE COMM’N ON ASIAN PAC. AM. AFFAIRS, http://www.capaa.wa.gov/data/timeline.shtml (last accessed Jan. 31, 2014). 10 U.S. Census Bureau, 2012 American Community Survey, http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/DP05/0400000US36. The figures included above represent data for the category of “race alone or in combination with one or more other races,” which would include all Asians and native Hawaiian and other Pacific Islanders, as well as people who identify with those categories who are among the mixed race population. 11 U.S. Census Bureau, “Census Bureau Releases Estimates of Undercount and Overcount in the 2010 Census,” U.S. DEP’T OF COMMERCE (May 22, 2012), http://www.census.gov/newsroom/releases/archives/2010_census/cb12- 95.html. Immigrant advocates believe people of color and the poor are disproportionately undercounted due to language barriers, illiteracy, or lower education levels, a general misunderstanding of the importance of census participation, and lack of reach among undocumented immigrants, among other reporting problems. COMM. AGAINST ANTI-ASIAN VIOLENCE, CENSUS 2010: DEMOGRAPHIC CONTEXT, http://caaav.org/census-2010- demographic-context (last accessed Feb. 6, 2014); Robert Knox, Census planning outreach; Asian festival a key to accurate count, BOSTON GLOBE, Feb. 21, 2010, at Regional, South, 1, available at http://www.boston.com/news/local/articles/2010/02/21/census_using_quincy_chinese_new_year_festival_to_reach_ out_to_undercounted_community/; THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS, CENSUS 2000 EDUCATION KIT, http://www.civilrights.org/publications/reports/census2000/6_1.html (last accessed Feb. 6, 2014).
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The highest percentage of APAs in New York are Chinese, followed by Asian Indians, Koreans, and Filipinos. The following is a breakdown of the APA population in New York State: an estimated 627,375 people of Chinese descent, representing 3.2% of the population; an estimated 335,793 people of Asian Indian12 descent, representing 1.7% of the population; an estimated 229,530 people of Other Asian13 descent, representing 1.2% of the population; an estimated 135,092 people of Korean descent, representing 0.7% of the population; an estimated 104,432 people of Filipino descent, representing 0.5% of the population; an estimated 38,365 people of Japanese descent, representing 0.2% of the population; an estimated 27,759 people of Vietnamese descent, representing 0.1% of the population; and an estimated 7,456 people of Native Hawaiian and Other Pacific Islander descent, representing less than 0.1% of the population (1,656 Native Hawaiians, 731 Guamanians or Chamorros, 1389 Samoans, and 3,680 other Pacific Islanders).14
Including those who identify as belonging to more than one race, there is an estimated total of 1,654,819 Asians living in New York State, representing 8.5% of the state’s total population, and 26,086 Native Hawaiians and other Pacific Islanders representing 0.1% of the state’s total population.15
12 Including people who indicate their race as “Asian Indian” or report entries such as India or East Indian. See U.S. CENSUS BUREAU, AMERICAN FACT FINDER, GLOSSARY, http://factfinder2.census.gov/help/en/glossary/a/asian.htmhttp://factfinder2.census.gov/help/en/glossary/a/asian.htm (last accessed Feb. 10, 2014). 13 Includes people who provide a response of another Asian group, such as Iwo Jiman, Maldivian, Mongolian, Okinawan, or Singaporean, including respondents who checked the Other Asian response category on the census questionnaire and did not write in a specific group or wrote in a generic term such as “Asian” or “Asiatic.” U.S. CENSUS BUREAU, AMERICAN FACT FINDER, GLOSSARY, http://factfinder2.census.gov/help/en/glossary/a/asian.htm (last accessed Feb. 10, 2014). 14 U.S. CENSUS BUREAU, 2012 AMERICAN COMMUNITY SURVEY, http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/DP05/0400000US36. The figures included above represent data for the category of “race alone or in combination with one or more other races,” which would include all Asians and native Hawaiian and other Pacific Islanders, as well as people who identify with those categories who are among the mixed race population. 15 Id.
21 of 60
New York City - 14.3% of the Population
Within New York City, APAs or people of Asian Pacific descent represent an estimated 14.3% (1,190,601 people) of the city’s population based on the 2012 American Community Survey as provided by the U.S. Census Bureau.16
The highest percentage of APAs in New York City are of Chinese descent, followed by Asian Indians, Koreans, and Filipinos. The following is a breakdown of the APA population in New York City:
an estimated 522,619 people of Chinese descent, representing 6.3% of New York City’s population; an estimated 207,196 people of Asian Indian descent, representing 2.5% of New York City’s population; an estimated 164,345 people of Other Asian descent, representing 2.0% of New York City’s population; an estimated 91.582 people of Korean descent, representing 1.1% of New York City’s population; an estimated 69,481 people of Filipino descent, representing 0.8% of New York City’s population; an estimated 24,148 people of Japanese descent, representing 0.3% of New York City’s population; an estimated 12,078 people of Vietnamese descent, representing 0.1% of New York City’s population; and an estimated 3,548 people of Native Hawaiian and Other Pacific Islander descent, representing less than 0.1% of New York City’s population (365 Native Hawaiians, 142
16 U.S. CENSUS BUREAU, 2012 AMERICAN COMMUNITY SURVEY, http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/DP05/1600000US3651000. The figures included above represent data for the category of “race alone or in combination with one or more other races,” which would include all Asians and native Hawaiian and other Pacific Islanders, as well as people who identify with those categories who are among the mixed race population.
22 of 60 Guamanians or Chamorros, 45 Samoans, and 2,996 other Pacific Islanders).17
There is an estimated total of 1,175,742 Asians (including mixed races) living in New York City, representing 14.1% of the city’s total population, and 14,859 Native Hawaiians and other Pacific Islanders representing 0.2% of the city’s total population.18
APA Judiciary in New York State’s Courts Some of the historic firsts in the New York State courts include:19
Hon. Randall T. Eng First APA judge in New York State history to be appointed to New York City Criminal Court (1983). Along with Hon. Peter Tom, one of the first APA judges elected to New York State Supreme Court (1991). First APA judge to be elected to New York State Supreme Court, Queens County (1991). First APA Administrative Judge of the Criminal Term, Queens County Supreme Court (2007). First APA Presiding Justice, Appellate Division, Second Department (2012).
Hon. Arnold Lim First APA to be appointed Family Court judge in New York City (2000); first APA Family Court judge in New York State.
Hon. Doris Ling-Cohan First APA woman to be an appellate judge in New York State (2014). First APA to sit on the Appellate Term (2014).
17 Id. 18 Id. 19 A request was directed to all APA judges to self-identify accomplishments and this may not be the most complete set of firsts.
23 of 60 First APA woman to be elected to the Supreme Court in New York State (2002). First APA to win a contested local district election for any public office and to be elected from Manhattan’s Chinatown district (other than school board), when she was elected to the Civil Court (2nd Municipal Court District) in 1995. First trial judge in New York State and third trial judge in the country to decide in favor of Marriage Equality in Hernandez v. Robles (2005).
Hon. Jeffrey Oing First APA Supervising Judge for Civil Court, NY County (2009).
Hon. Toko Serita First Japanese-American judge in New York State (2005), and to be appointed in New York City. First APA female judge appointed to the New York City Criminal Court.
Hon. Peter Tom First APA appointed to the Housing Court of the City of New York (1985). One of the first APAs elected to the Civil Court of the City of New York (1987), as well as one of the first APAs to win a county-wide contested election in Manhattan. First APA elected to the New York State Supreme Court, New York County (1990). First APA appointed to the Supreme Court, Appellate Division (First Department, 1994). First APA to serve as a Presiding Justice of the Appellate Division, First Department (Acting Presiding Justice, 2007 and 2009). First APA to win the New York City Golden Gloves Boxing Championship.
Hon. Lillian Wan First APA woman to be appointed to the Family Court bench in New York City (2012).
24 of 60 Conclusion
Although Asian Pacific Americans have been in New York State since the 1830s, and represent 8.6% of New York State’s population, and 14.3% of New York City’s population, only 22 of the 1250 state court judges are of Asian descent--representing 1.8% of all judges statewide.20 A number of the state’s courts do not have, and have never had, a judge of Asian descent, including the Court of Appeals and the Court of Claims.
20 Judicial information is based on the 2/13/2014 Payroll, as provided by the Director Human Resources, NYS Unified Court System. J:\NAPABA\History of APA Judges\APA History (FINAL copy May 22 2014).wpd
25 of 60 HISPANICS/LATINO HERITAGE Prepared by the Hon. Doris M. Gonzalez
Justice Emilio Nunez, Supreme Court, Appellate Division, First Department (Retired)26
Justice Emilio Nunez was born in Bilbao, Spain, and immigrated to the United States at the age of eleven. He received his law degree from New York Law School and was admitted to the Bar in 1929. During his years of practice, he served as counsel to several South American countries and to the government of Spain. Nunez became the first Hispanic judge in the history of New York State after Mayor Vincent Impellitteri appointed Nunez as a New York City Magistrate in 1951. Nunez also became the first Hispanic to hold the successive offices to which he was appointed or elected. Nunez ascended to the Court of Special Sessions in 1952, where he served until Governor W. Averell Harriman appointed Nunez as a Judge of the City Court in March 1956. In November 1956, Nunez was elected to a full ten-year term in City Court. In 1957, Nunez served as an acting Supreme Court Justice until his election to the Supreme Court in 1962. In 1968, Justice Nunez was appointed by Governor Nelson A. Rockefeller as a Justice of the Appellate Division of the Supreme Court, First Department, where he served until March 31, 1977. Judge Jose Ramos-Lopez, Civil Court, New York City (Retired)27 Justice Jose Ramos-Lopez was born in Bayamon, Puerto Rico, in 1915. He graduated from the University of Puerto Rico, received his LL.B. degree from St. John’s University Law School in 1939, and was admitted to the Bar in 1940. Justice Ramos-Lopez served in the United States Armed Forces (USM) during World War II.
Justice Ramos-Lopez served as Deputy Commissioner of the New York City Department of Corrections from 1953 to 1954. He was appointed by Governor W. Averell Harriman as an Administrative Law Judge to the New York State Workers Compensation Board, and occupied
26 Biography of Judge Emilio Nunez, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/courts/ad1/centennial/Bios/enunez2.shtml (last visited Aug. 28, 2014). 27 John P. Schmal, Puerto Rican Pioneers in New York City: Forging an Urban Path, LATINOLA (Dec. 26, 2006), http://latinola.com/story.php?story=3891.
26 of 60 that position from 1955 to 1958. He served as a member of the New York State Assembly from 1959 to 1967. Justice Ramos-Lopez was elected as a Judge of the Civil Court of City of New York in 1967, and was an Acting Supreme Court Justice (Special Narcotics) in New York County from 1973 to 1975.
Judge Felipe N. Torres, Family Court, New York City (Retired)28
Judge Felipe Torres, born in Salinas, Puerto Rico in 1897, became a New York resident in 1919. He served in the Army during World War I, attaining the rank of Second Lieutenant, and served with the Selective Service System during World War II. He received his LL.B. from Fordham University in 1926, and was admitted to the Bar the following year. In 1940, Justice Torres earned his B.S. degree in social science from City College.
Judge Torres served in the Assembly from 1954 to 1962. Judge Frank Torres, Judge Felipe Torres’ son, succeeded his father in the Assembly after his father’s departure.
In 1963, Mayor Robert F. Wagner appointed Judge Felipe Torres a Judge of the Family Court. After retirement, Judge Torres continued to serve New York as a Judicial Hearing Officer in the panels for Supreme Court, Civil and Criminal terms, and the Family Court.
Justice John Carro, Supreme Court, Appellate Division, First Department (Retired)29
Justice John Carro was born in 1927, received a B.S. from Fordham University in 1949, a J.D. from Brooklyn Law School in 1956, and was admitted to practice before the United States Supreme Court in 1966. Justice Carro received an M.A. from the University of Virginia in 1984. He served in the United States Navy from 1945 to 1947, receiving an honorable discharge as a First Lieutenant from the United States Army Reserve in 1949. Justice Carro was Assistant to Mayor Robert F. Wagner from 1960 to 1965, the first Puerto Rican to serve in his office.
28 See Eric Pace, Felipe N. Torres, 96, Former Legislator and Retired Judge, N.Y. TIMES, Apr. 5, 1994, available at http://www.nytimes.com/1994/04/05/obituaries/felipe-n-torres-96-former-legislator-and-retired-judge.html. 29 Biography, Justice John Carro, NEW YORK UNIFIED COURT SYSTEM, http://www.nycourts.gov/courts/ad1/centennial/Bios/jcarro2.shtml.
27 of 60
Justice Carro was appointed to the Criminal Court in 1969, became an Acting Supreme Court Justice in 1976, and was elected a Supreme Court Justice in 1977. Governor Hugh L. Carey appointed Justice Carro to the Appellate Division in 1979, making Carro the first Puerto Rican to be designated an Appellate Court Justice and elected as a Supreme Court Justice from Bronx County. Justice Carro has been an adjunct professor at CUNY and Fordham University, and is a former founder and Chairman of the Board of the Puerto Rican Forum and former board member of ASPIRA and the Puerto Rican Legal Defense Fund. Justice Carro served as President of the Puerto Rican Bar Association, former member of the Supreme Court Justice Association, and co-chairman of the Committee on Revision of the Criminal Law of the Criminal Justice Section of the New York State Bar Association. Judge Carro also served as President of the Association of the Judges of Hispanic Heritage, Inc.
The foregoing pioneers have paved the way for many more firsts by Latino judges throughout the years. The following are but a sampling of the many achievements secured by Latino judges within New York State.
Bronx County
Hon. Irma Vidal Santaella, a community activist, was the first Latina elected to the Supreme Court in 1983.30
Hon. Luis A. Gonzalez31 was appointed to the Housing Court of the City of New York in 1985, and elected to Civil Court one year later. He was elected to the Supreme Court, Bronx County in 1987. Justice Gonzalez was appointed to the Appellate Term, 1st and 12th Judicial Districts as an Associate Justice, and subsequently became Administrative Judge for Civil and Criminal Matters, Bronx County. In 2002, Judge Gonzalez was appointed to the Appellate Division, First Department by Governor Pataki, and was named Presiding Justice of the
30 See DIANE TELGEN, NOTABLE HISPANIC WOMEN 369 (1993). 31 See Biography, Presiding Justice Luis A. Gonzalez, NEW YORK STATE SUPREME COURT, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/courts/ad1/justicesofthecourt/justices_gonzales.shtml.
28 of 60 Appellate Division First Department in 2009.
In 1995, Hon. Yvonne Gonzalez served on the City Council until she was elected to Civil Court, Bronx County. In 1998, she was elected to the Supreme Court.
Hon. Lucindo Suarez,32 Supreme Court, Bronx County was appointed to the Appellate Term, 1st and 12th Judicial Districts in February 2000, and was named Presiding Justice of the Appellate Term in 2002.
Hon. Sallie Manzanet-Daniels33 was the youngest Justice of Hispanic heritage to be elected to the Supreme Court of the State of New York. In October of 2009, Governor Paterson appointed her the first Latina to the Appellate Division, First Department.
Hon. Nelida Malave-Gonzales, elected in 2012, is the first Hispanic Surrogate in the Bronx.
New York County
Hon. Rita Mella, elected in 2012, is New York County’s first Hispanic Surrogate.
Kings County
Hon. Gilbert Ramirez,34 blinded in early adulthood, was appointed to the Family Court Bench by Mayor John Lindsey in 1968, and served in that capacity until his election to the Supreme Court in 1975. As a Judge, he recorded all his court sessions and was famous for replaying key moments in his courtroom to jog his memory. Mayor Rudolph Guiliani
32 See Press Release, Lucino Suarez Appointed to Appellate Term of the Supreme Court for the First Judicial Department (January 25, 2000), http://www.courts.state.ny.us/press/pr2000_02.shtml. 33 Biography, Associate Justice Sallie Manzanet-Daniels, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/courts/ad1/justicesofthecourt/justices_manzanet-daniels%20.shtml. 34 Gilbert Ramirez Park, NYC PARKS, http://www.nycgovparks.org/parks/gilbert-ramirez-park/history (last accessed Sept. 1, 2014).
29 of 60 proclaimed the date of Justice Ramirez’s retirement, in 1997, as Justice Gilbert Ramirez Day. Hon. Ramirez was the first Puerto Rican elected to the New York State Assembly.
Hon. Margarita Lopez-Torres was the first Latina elected to the Civil Court in 1992, and became the first Hispanic Surrogate in Kings County in 2006.
Hon. Betzy Barros,35 elected to the Civil Court in 1995, went on to become the first Latina elected to the Supreme Court in Kings County in 1997. Governor Cuomo appointed her to the Appellate Division, Second Department in April 2014.
Hon. Reinaldo Rivera36 was elected to the Supreme Court in 1991, and in 2002 was appointed to the Appellate Division Second Department.
Hon. Richard Rivera became the first Puerto Rican elected to office as Civil Court Judge in 1990. In 1997, he was appointed Supervising Judge of Kings County Civil Court, and subsequently elected to the Supreme Court. Justice Rivera died during his first term.
Hon Jeanette Ruiz37 was appointed to Supervising Judge Kings County, Family Court in 2012.
Hon. Ariel Belen38 became a Supreme Court Justice in 1995. In 2005, he was appointed to the Appellate Term, 2nd and 11th Judicial Districts. He was Administrative Judge for Civil Matters in the Supreme Court, Kings County, was appointed to the Appellate Division, Second Department in 2008.
35 Press Release, Governor Cuomo Announces Appointments to the Appellate Division of the Supreme Court (April 15, 2014). 36 Associate Justice Reinaldo E. Rivera, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/courts/ad2/justice_rivera.shtml. 37 Brendan Pierson, New Supervising Judge Takes Reins in Brooklyn, NEW YORK LAW JOURNAL, Dec. 12, 2012, available at http://www.newyorklawjournal.com/id=1202580787498. 38 Charisma Miller, Justice Ariel Belen to leave bench; Longtime Brooklyn jurist cites pay issue, BROOKLYN DAILY EAGLE, Aug. 17, 2012, available at http://www.brooklyneagle.com/articles/justice-ariel-belen-leave-bench- longtime-brooklyn-jurist-cites-pay-issue-2012-08-17-155000.
30 of 60 Queens County
In 1994, Hon. Jaime Rios39 was the first Hispanic elected as a Judge of the Civil Court. In 1995, he was elected to the Supreme Court and appointed to the Appellate Term, 2nd and 11th Judicial Districts in 2001.
Hon. Diccia Pineda-Kirwan was the first Hispanic woman to be elected as Judge of the Civil Court in 2002. In 2009, she was elected to Supreme Court.40
Hon. Gilbert Badillo,41 in 1986, was appointed to Housing Court in Bronx County. He was reappointed to successive terms and was the Supervising Judge of Housing Court, Queens County.
Hon. Fernando Camacho,42 in 1997, was appointed to the Criminal Court. Appointed to the Court of Claims in 2008, he was named Administrative Judge for Criminal Matters.
Richmond County
Mayor Bloomberg swore in Hon. Raymond Rodriguez, Staten Island’s first Hispanic Judge, on February 7, 2013.43
39 See Angy Altamirano, Spotlight on justice: Judge Jaime Rios, Associate Justice of the Appellate Term of the State Supreme Court, THE QUEENS COURIER, available at http://queenscourier.com/2013/spotlight-on-justice-judge- jaime-rios-associate-justice-of-the-appellate-term-of-the-state-supreme-court/ (last accessed Sept. 1, 2014). 40 Dominican Pineda-Kirwan takes oath as first Hispanic woman in NY Supreme Court, DOMINICAN TODAY, Jan. 15, 2014, available at http://www.dominicantoday.com/dr/world/2010/1/15/34491/DominicanPineda-Kirwantakes- oathas-first-Hispanic-woman-in-NY-Supreme. 41 Biography, Hon. Gilbert Badillo, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/admin/directory/badillo_gilbert.shtml (last accessed Sept. 1, 2014). 42 Profile, Hon. Fernando Camacho, PRACTICING LAW INSTITUTE, http://www.pli.edu/Content/Faculty/Hon_Fernando_Camacho/_/N-4oZ1z12e9g?ID=PE1167999 (last accessed Sept. 1, 2014). 43 Jillian Jorgensen, Staten Island’s first Hispanic judge takes oath of office, SILIVE.COM, Feb. 7, 2013, http://www.silive.com/news/index.ssf/2013/02/staten_islands_first_hispanic.html.
31 of 60 Westchester County
Hon. Nilda Morales Horowitz was elected to Family Court in 2001.
Hon. Maria Vasquez-Doles was elected in 2013 to the Supreme Court of the 9th Judicial District.
Outside City Boroughs
Hon. Hector D. LaSalle sat in the Matrimonial Division in Suffolk County Supreme Court. In 2014, Governor Cuomo appointed him to the Appellate Division, Second Department.44
Court of Appeals
The Honorable Carmen Ciparick45
On December 1st, 1993, Judge Carmen Ciparick became the first Hispanic Judge appointed to the New York State Court of Appeals. Following her initial appointment to the Court in 1993 by Governor Mario Cuomo, she received another appointment by Governor Eliot Spitzer in 2007. She served on the New York State Court of Appeals until her retirement in 2012. Judge Ciparick, a native of Washington Heights, completed her undergraduate studies at Hunter College in 1963, and obtained her J.D. from St. John’s University School of Law in 1967. She launched her legal career as a staff attorney with the Legal Aid Society of New York City, and later served as Assistant Counsel for the Judicial Conference of the State of New York, Chief Law Assistant of the Criminal Court of the City of New York, and Counsel in the Office of the New York City Administrative Judge. She received her first judicial appointment in 1978, as
44 Biography, Associate Justice Hector D. LaSalle, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/courts/ad2/justice_lasalle.shtml (last accessed Sept. 1, 2014). 45 Biography, Honorable Carmen Beauchamp Ciparick, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.courts.state.ny.us/ctapps/jciparick.htm (last accessed Sept. 1, 2014).
32 of 60 a Judge of the Criminal Court of the City of New York, and ascended to the New York State Supreme Court in 1982. She served on the Supreme Court until her appointment to the Court of Appeals in 1993.
The Honorable Jenny Rivera46
On January 15, 2013, Governor Andrew M. Cuomo nominated Hon. Jenny Rivera to the Court of Appeals. The New York State Senate confirmed Rivera’s appointment on February 11, 2013. Rivera follows Judge Judith Kaye as the second judge to serve on the Court of Appeals without prior service on any bench, and is the first Latina Judge to hold that distinction.
Judge Rivera has spent her entire professional career in public service. She clerked for the Honorable Sonia Sotomayor, on the Southern District of New York, and also clerked in the Second Circuit Court of Appeals Pro Se Law Clerk’s Office. She worked for the Legal Aid Society’s Homeless Family Rights Project, the Puerto Rican Legal Defense and Education Fund (renamed Latino Justice PRLDEF), and was appointed by the New York State Attorney General as Special Deputy Attorney General for Civil Rights. Judge Rivera has been an Administrative Law Judge for the New York State Division for Human Rights, and served on the New York City Commission on Human Rights. Prior to her appointment, she held a tenured faculty appointment at the City University of New York School of Law, where she founded and served as Director of the Law School’s Center on Latino and Latina Rights and Equality.
Federal Court
Hon. Jose Cabranes47 was appointed to the United States Court of Appeals for the Second Circuit in 1996. He served as a United States District Court Judge for fifteen years and was serving as Chief Judge of the Court when he ascended to the Court of Appeals.
46 Biography, Honorable Jenny Rivera, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/ctapps/jrivera.htm (last accessed Sept. 1, 2014). 47 Biography, Jose A. Cabranes, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, http://www.ca2.uscourts.gov/judges/bios/jac.html (last accessed Sept. 1, 2014).
33 of 60 Hon. Sonia Sotomayor48 was nominated to United States District Court for the Southern District of New York by President George Bush in 1991, and in 1997 President Clinton nominated her to the United States Court of Appeals for the Second Circuit. In 2009, President Obama nominated her to replace retiring Justice David Souter. She was confirmed in 2009.
Hon. Victor Marrero49 was appointed by President Clinton in 1999 to the United States District Court for the Southern District of New York.
Hon. Dora Irizarry was a Criminal Court Judge from 1995 to 1997, and a Court of Claims Judge from 1997 to 2002. In 2003, President George Bush nominated her to serve as a Federal District Court Judge in the Eastern District of New York.50
SUMMARY Historically, Latino judges have increased in numbers throughout the years in most boroughs, with the exception of Richmond County. As of 2014, seventy-eight Latino judges (excluding city, town, administrative law, social security etc.) preside over cases throughout the state. However, of those seventy-eight judges, very few are elected or appointed within Westchester County and points north.
In November 2013, the first Hispanic, Justice Maria Vasquez-Doles, was elected to the Supreme Court in the 9th Judicial District (Westchester County)
No Hispanic Judges presently sit in the Third or Fourth Departments at the Supreme Court or Appellate Division Levels.
48 Biographies of Current Justices of the Supreme Court, THE UNITED STATES SUPREME COURT, http://www.supremecourt.gov/about/biographies.aspx (last accessed Sept. 1, 2014). 49 Profile, Hon. Victor Marrero, PRACTICING LAW INSTITUTE, http://www.pli.edu/Content/Faculty/Hon_Victor_Marrero/_/N-4oZ1z136ui?ID=PE464456 (last accessed Sept. 1, 2014). 50 Judge Dora L. Irizarry, EASTERN DISTRICT OF NEW YORK, UNITED STATES DISTRICT COURT, https://www.nyed.uscourts.gov/content/judge-dora-l-irizarry (last accessed Sept. 1, 2014).
34 of 60 LESBIANS, GAY MEN, BISEXUALS AND TRANSGENDER PEOPLE* *Prepared by the Hon. Michael R. Sonberg
New York State’s first openly gay or lesbian judge was William Thom, who was appointed by Mayor Edward I. Koch to fill an interim vacancy on the New York City Civil Court in 1984. Mayor Koch was following the lead of California Governor Jerry Brown who, in 1979, appointed the first openly gay man to the bench in the United States, Los Angeles County Superior Court Judge Stephen M. Lachs.51
Richard Failla, who was appointed a judge of the New York City Criminal Court by Mayor Koch in 1985, was the first openly lesbian or gay person appointed to a non-interim judgeship in New York State.52 Judge Failla had been New York City’s Chief Administrative Law Judge at the time of his appointment; his successor in that position, Charles D. McFaul, also was an openly gay man. Judge Failla’s appointment was followed by Mayor Koch’s appointment in 1986 of Mary Bednar to the Family Court, making her the first open lesbian on the bench. In 1988, Justice Failla was elected to the Supreme Court in New York County and Joan Lobis, who had been a Housing Court Judge since 1985, was elected to the Civil Court from New York County. Judge Lobis was elected to the Supreme Court in 1992, making her the first openly gay or lesbian person elected to the Civil Court as well as the first lesbian elected to the Supreme Court.
In the Second Department, Debra Silber was the first openly gay or lesbian person elected to the bench, when she was elected to the Civil Court in Kings County in 1998. She was followed by Jack Battaglia who was elected to the Civil Court in Kings County in 2000 and then to the Supreme Court, in 2006. None of the other counties in the Second Department has elected an openly gay or lesbian judge to a court of record.
51 See Will Dean, Stephen Lachs made history as openly gay judge, THE DESERT SUN, May 9, 2014, available at http://www.desertsun.com/story/news/nation/lgbt/2014/05/09/stephen-lachs-lgbt-judge-advocate/8900005/. 52 See Bruce Lambert, R. C. Failla, Justice and Leader On Gay Rights Issues, Dies at 53, N.Y. TIMES, May 12, 1993, available at http://www.nytimes.com/1993/04/12/obituaries/r-c-failla-justice-and-leader-on-gay-rights-issues- dies-at-53.html.
35 of 60 In the Fourth Department, Judge Ellen Yacknin of Rochester’s City Court was elected in 2002, the first open lesbian or gay judge elected outside of New York City. She was followed, in 2004, by Judge Margaret Walsh, Albany County Family Court, the first open lesbian or gay judge elected in the Third Department.
In 2009, Governor David A. Paterson appointed New York County Supreme Court Justice Rosalyn H. Richter53 and Sixth Judicial District Supreme Court Justice Elizabeth A. Garry54, to the First and Third Departments of the Appellate Division, respectively. In 2012, Governor Andrew M. Cuomo appointed New York County Supreme Court Justice Paul G. Feinman to the Appellate Division, First Department bench.
As of February, 2014, excluding the three appellate division judges just mentioned, there are 16 lesbian or gay judges sitting in the 1st Judicial District, eight in the 2nd Judicial District, one in each of the 3rd and 4th Judicial Districts, two in the 7th Judicial District, one in each of the 9th and 11th Judicial Districts 11 in the 12th Judicial District.
Because there are no reliable statistics available on the number of LGBT people in New York State—or in the United States or any other part of the world for that matter—we are unable to utilize the same methodology in evaluating the representation of LGBT people as we have used with respect to other under-represented populations. While at today’s total of 44 there certainly has been a meaningful increase over the past thirty years in the number of LGBT judges, that increase has been largely confined to appointed judges in New York City and elected judges and justices in the 1st Judicial District. The “openness” of lesbian and gay judges, both in New York City and in the rest of New York State, varies widely; while most LGBT members of the judiciary in New York City are indisputably open regarding their sexual orientation, a few are not, regarding it as a purely personal matter. Outside of New York City, judicial politics in some communities makes it inadvisable for judges who must stand for re-election on a relatively frequent basis to be too strongly identified with the LGBT community.
53 See Biography, Associate Justice Rosalyn H. Richter, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/courts/ad1/justicesofthecourt/justices_richter.shtml (last accessed Sept. 1, 2014). 54 See Biography, Justice Elizabeth A. Garry, NEW YORK STATE UNIFIED COURT SYSTEM, http://www.nycourts.gov/ad3/bios/garrybios.html (last accessed Sept. 1, 2014).
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A possible alternative methodology would be to compare the number of LGBT judges to the numbers of LGBT lawyers in various communities. Unfortunately, OCA does not collect such data. We would encourage OCA to include an optional question regarding sexual orientation on attorney registration forms, as the New York State Bar Association and other bar associations do on their membership forms.
37 of 60 NATIVE AMERICANS Prepared by the Hon. Lizbeth González
There are nine recognized Native-American nations in New York State: Cayuga, Oneida, Onondaga, St. Regis Mohawk, Seneca, Tonawanda Band of Seneca, Tuscarora, Shinnecock and Unkechaug.55 Most Native Americans live outside their nation territories in both rural and urban areas, with more than 112,000 persons living in New York City according to the 2010 United States census.56
Sovereignty is governmental status, not ethnicity: each Native nation has its own unique adjudicatory system. The Onondaga, Tuscarora and Tonawanda Band of Seneca adhere to the Great Law of Peace of the Haudenosaunee in their government structure. The justice systems of these three Nations promote restorative justice through consensus. The Oneida adopted a court structure in 1997 with codes, statutes and a judiciary similar to those of New York State. The St. Regis Mohawk developed a separate court system as well. The Seneca are governed by written laws and a constitution that provides for elected officials; their judicial branch consists of a Peacemakers Court, a Supreme Court (the Council), a Court of Appeals and a Surrogate Court. The Unkechaug have adopted written Tribal Customs Rules and Regulations that incorporate aspects of traditional and contemporary practices of governance and adjudication. The Shinnecock have historically followed oral traditions and used community sanctions to resolve conflicts; they recently adopted a constitution that defines their internal government structure and rely primarily on state and federal courts for litigation.
In the 1980s, the Conference of Chief Justices launched a national project to encourage conversation and cooperation among the various state, federal and Native adjudicatory systems. To this end, New York State Chief Judge Judith Kaye and Chief Judge John Walker of the US Court of Appeals for the Second Circuit established the Tribal Courts Committee of the Unified Court System in 2003, chaired by Supreme Court Justices Marcy Kahn and Edward
55 Tribes by State, 500NATIONS.COM, http://500nations.com/tribes/Tribes_State-by-State.asp (last accessed Sept. 1, 2014). 56 2010 United States Census, New York.
38 of 60 Davidowitz (now retired), to “explore ways in which the state, federal and tribal court systems can work to improve our understanding of one another’s justice systems and establish better ways of sharing information.”57 In keeping with this mandate, the Tribal Courts Committee helped establish the New York Federal-State-Tribal Courts and Indian Nations Forum.
The Forum seeks to foster mutual understanding and minimize conflict among the various justice systems. During the course of its ten year existence, the Forum has focused on three priorities: implementation of the Indian Child Welfare Act (ICWA) which recognizes the exclusive jurisdiction of Indian Nations over child custody proceedings involving Native- American children; addressing potential jurisdictional conflicts among federal, state and Native justice systems; and educating judges, attorneys and providers about Native law and culture.
The Forum has recently focused on the recognition of domestic protection orders issued by Native adjudicatory systems; the recognition of marriages solemnized by officiants designated by Native nations; and reenactment of the Violence Against Women Act (VAWA) which extends new protections to Native-American women by empowering Native authorities to prosecute non-Natives for abuses committed on tribal lands. Most recently, the March/April 2014 edition of the New York State Bar Association Journal featured Indian Child Welfare Act articles authored by several Forum members.
On Election Day 2013, Western New York voters elected Mark A. Montour (Mohawk), a former Town Justice, Acting Buffalo City Court Judge, private practitioner, law clerk, Lancaster Town Councilperson and adjunct professor, to serve as the first Native American elected to the New York State Supreme Court. At his swearing-in, Justice Montour vowed to protect the rights of every resident and to recognize the sovereignty of the Native-American courts across the state. Upon his election, he was appointed to the Forum to help address sovereignty issues.
57 The First New York Listening Conference, UCS BENCHMARKS, Winter, 2006, https://www.nycourts.gov/publications/benchmarks/issue3/listening.shtml.
39 of 60 A Brief History of Women on the Bench in New York State 1 Prepared by the Hon. Darcel D. Clark
In 1935, Justine Wise Polier became the first woman appointed as a judge in New York State. Mayor Fiorello La Guardia appointed Judge Polier to the Domestic Relations Court (later known as the Family Court). Four years later, in 1939, Mayor La Guardia appointed to the Family Court Jane M. Bolin, the first African-American woman Judge in the State of New York.
Birdie Amsterdam became the first woman to achieve an elected judgeship to the Municipal Court in 1940. She also became the first female appointed as Acting Justice of the City Court in 1954, the first woman to win election to the City Court a year later, and the first woman to be elected to the Supreme Court of the State of New York in 1958. Justice Amsterdam came to be known as the “first lady of the judiciary.” In 1977, Mary Johnson Lowe was the first African-American woman elected to the Supreme Court of the State of New York. The first Hispanic woman elected to the New York State Supreme Court was Irma Vidal Santaella in 1983, and in 2002, Doris Ling-Cohan became the first Asian Pacific American woman elected to the New York State Supreme Court.
Betty Weinberg Ellerin became the first woman Presiding Justice of the Appellate Division, New York State Supreme Court, First Department, in 1999. She also became the first woman appointed Associate Justice of the Court in 1985. Other notable firsts for women in the First Department include: Dianne T. Renwick, the first African-American woman Justice appointed in 2008; Rosalyn H. Richter, the first openly gay or lesbian appointed in March 2009; and Sallie Manzanet-Daniels, the first Hispanic woman ever appointed to the Appellate Division in the State of New York when, in October 2009, Governor David Patterson designated her to preside in the First Department.
In the Second Department, now Chief Administrative Judge, A. Gail Prudenti, was appointed Presiding Justice in 2002, the first woman to hold that position. The first woman appointed to the Appellate Division, Second Department, was Geraldine T. Eiber in 1984. The
1 Source material for this history of women in New York State includes A. Gail Prudenti’s article Women and Minorities in the Courts, NYLJ, Oct. 30, 2013.
40 of 60 first African-American woman appointed to the Appellate Division, Second Department, was Sandra Townes in 2001. On April 15, 2014 Governor Andrew Cuomo appointed Betsy Barros as the first Hispanic woman on the Second Department Appellate Division.
Karen K. Peters became the first woman elected to the State Supreme Court in the Third Department in 1992, and the first woman Presiding Justice of the Third Department in 2012. The first woman appointed to the Appellate Division, Third Department, was Ann T. Mikoll in 1977.58 Elizabeth A. Garry was the first openly gay or lesbian Supreme Court Justice appointed to the Appellate Division, Third Department, in 2009.
In 1991, M. Dolores Denman became the first woman to serve as Presiding Justice of the Appellate Division, Fourth Department. She was also the first woman appointed as an Associate Justice to that court in 1977. In 2000, The New York State Supreme Court Appellate Division Fourth Department Courthouse was named in her memory and as a tribute to Justice Denman. Governor David Patterson appointed Rose H. Sconiers to the Appellate Division, Fourth Department in 2010, making her the first African-American woman on that bench. Justice Sconiers also was the first African-American woman outside of New York City to be elected to the New York State Supreme Court.
Ann Pfau became the first woman to serve as Chief Administrative Judge of the State of New York in 2007. Judge Betty Weinberg Ellerin became the first woman appointed as Deputy Chief Administrative Judge of the State of New York for the New York City Courts in 1982. Many years later, in 2009, Fern Fisher became the first African-American woman appointed to that same position.
The New York Court of Appeals has had a number of women judge “firsts” who served with distinction. In 1983, Governor Mario Cuomo appointed Judith S. Kaye the first woman to the Court of Appeals. She would eventually be named the first woman Chief Judge of the Court of Appeals in 1993. Governor Mario Cuomo also appointed the first Hispanic woman to the Court of Appeals when he selected Carmen Beauchamp Ciparick in 1994.
58 Although she resided in the Fourth Department, Justice Mikoll was appointed to the Third Department because no women served on the Supreme Court bench in the Third Department.
41 of 60 Governor Andrew Cuomo, like his father, made New York State history in 2013 when he appointed Sheila Abdus-Salaam the first African-American woman on the New York State Court of Appeals. With the addition of Judges Jenny Rivera (2013) and Sheila Abdus-Salaam, who joined Judges Victoria A. Graffeo and Susan Phillips Read, the Court of Appeals has a female majority. This is not, however, the first time that women comprised the court’s majority. In 2003, the Court of Appeals had its first female majority when Susan Phillips Read, Judith S. Kaye, Carmen Ciparick and Victoria Graffeo served together on the bench.
Several landmark reports have documented the history of women in New York State Courts. The first was at the direction of Chief Judge Lawrence C. Cook in 1986, when he established the New York Task Force on Women in the Courts. The report concluded that “gender bias against women litigants, attorneys, and court employees is a pervasive problem with grave consequences. Women are often denied equal justice, equal treatment, and equal opportunity.”
Thereafter, in 1986, Chief Judge Sol Wachtler appointed the New York State Judicial Committee on Women in the Courts to implement the recommendations of the Task Force. The Hon. Kathryn McDonald was named the First Chair. In 1996, Chief Judge Judith Kaye continued to support the mandate set by the 1986 report, and the Committee on Women in the Courts issued an update. The 1996 report concluded that “Educational programs have been put in place, committees have been formed and have issued reports, statutes have been changed, court decisions have clarified laws, gender neutral language has become the norm, and the number of women in the profession, in the judiciary, and in the upper ranks of the courts’ non judicial personnel has increased—yet women in the courthouses and the court system, may still find obstacles along the path of their legal claims, careers and professions that men rarely confront.”
Fifteen years after the 1986 Task Force Report, a 2002 report by the Judicial Committee on Women in the Courts highlighted notable improvement. In 2011, the Judicial Committee on Women in the Courts celebrated its 25th anniversary, and today, continues to be the most important entity within our court administration, dedicated to monitoring and providing
42 of 60 recommendations on the issues that affect women in the courts. The current Chair is the Hon. Betty Weinberg Ellerin.
Currently, New York State has 1237 judges, 423 of whom are women. Accordingly, women represent 34.2% of the judges statewide. This indicates progress toward gender equity when compared to the figures from 1988 (11%), 1999 (24%), and 2000 (25%). Also, consider that nationally 29% (5,209 women out of the 17,871 total judges) of state court judges are women. Nevertheless, room for improvement remains, as indicated by the reports below. The following reports detail the number of women in New York’s State judiciary during 1988, 1999, and 2001, along with gender by location in New York State as of October 2013.
43 of 60 Women in the New York State Judiciary 1988, 1999, and 20016
Court 1988 1999 2001 Court of Appeals 14% 29% 43% Appellate Division 14% 25% 26% Administrative Judges 5% 41% 42% Supreme Court 8% 15% 17% Acting Supreme Court* 16% 31% 31%
Surrogates Court 7% 17% 18% Court of Claims 10% 14% 13% County Court (Outside of NYC)** 4% 7% 9% Family Court (Outside of NYC) 10% 28% 37% District Court (Nassau and Suffolk) 7% 33% 24% City Court (Outside NYC)*** 5% 19% 18% NYC Family Court 54% 54% 60% NYC Civil Court 20% 48% 47% NYC Criminal Court 21% 38% 34% Housing Court N/A 46% 45% Totals 11% 24% 25%
* Judges from other trial level courts who are designated to sit in Supreme Court and Supervising Judges from New York’s Civil, Family and Criminal Courts.
** Judges who sit in County Court only and judges who combine service on the County Court with service on Family and/or Surrogates Court.
*** City Court Judges, Acting City Court Judges, and Chief Judges of the City Court.
6 New York State Judicial Committee on Women in the Courts, Women in the Courts: A Work in Progress 15 Years After the Report of the New York Task Force on Women in the Courts, April 2002.
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LAW SCHOOLS Prepared by the Hon. Conrad D. Singer
The lack of diversity is similarly reflected in minority enrollment in New York State law schools. A cross-comparison of the ABA law school data and the New York State Unified Court System data reveals that although women comprise forty-eight percent of law school enrollees and have consistently constituted approximately half of the law school population for more than two decades they nonetheless comprise only thirty-four percent of the New York State judiciary.
Comparing the same data we found that students who identified as white dominate enrollment in New York State law schools at approximately sixty percent. The remaining forty percent of enrollees are unequally divided among five racial/ethnic minority groups. However, while people of color make up forty percent of state law school enrollment, these same minority groups only occupy nineteen percent of the seats of the New York State judiciary.
As the statistics demonstrate, law schools are graduating women in record numbers and have made strides in minority recruitment. While this is cause for optimism, law schools must remain vigilant in continuing minority recruitment efforts to ensure a continuing pipeline of diverse attorneys eligible for the bench.
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RECOMMENDATIONS
1. This report should be released to the media to raise public awareness and encourage the decision makers in both the elective and appointive judicial selection systems to consider qualified diversity candidates for judicial office. The report also should be published on the New York State Bar Association’s website and the results reported in the State Bar News.
2. The New York State Bar Association Task Force on Judicial Diversity established in 2002 and disbanded in 2008 should be reconstituted as a subcommittee of the NYSBA Committee on Diversity and Inclusion to provide ongoing monitoring and recommendations concerning judicial diversity.
3. The Judicial Section and the newly reconstituted Judicial Diversity subcommittee should collaborate with women and minority bar and judicial associations in an effort to attract diverse candidates to the bench.
4. The New York State Bar Association and the Judicial Section should promote enhanced communications with its members and the Office of Court Administration regarding the importance of accurate self-reporting for purposes of collecting diversity data.
5. The collection and analysis of statistical data requires significant staff support. Adequate staff should be made available so we can continue to evaluate and report on judicial diversity to the membership and to the public on a biennial basis.
6. Activities to enhance judicial diversity should include ongoing CLE programs on: (1) “How to Become a Judge” featuring panel discussions on election law and related ethical requirements; (2) securing nominations for Supreme Court; (3) making the ballot in City, County and Family Court; and (4) the appointment process for New York City Criminal and Family Courts, New York State Court of Claims Judges and United States Magistrate and District Court Judges.
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7. We would encourage OCA to include an optional question regarding sexual orientation on attorney registration forms, as the New York State Bar Association and other bar associations do on their forms.
8. The Judicial Section should establish a Judicial Diversity Award to recognize individuals for their efforts to promote diversity on the bench throughout New York State. Recipients should embody the New York State Bar Association’s commitment to diversity and inclusion at all levels of the judiciary.
CONCLUSION
The demographics of New York State have shifted significantly in recent decades. This report reveals that the judiciary, particularly upstate, has not kept pace. The composition of the government, including the judicial branch, must reflect the composition of the governed or risk losing credibility. The lack of judicial diversity in certain regions of New York is incompatible with the egalitarian ideals of our democracy.
Fortunately, our law schools have been graduating increasing numbers of women and minorities. Women have constituted almost fifty percent of law school classes for more than two decades. People of color now compromise approximately forty percent of law school classes. This pipeline of diverse lawyers presents an opportunity for New York State courts to increase the racial and gender diversity of our judiciary in the coming years.
It is our hope that this report will raise public awareness about the importance of judicial diversity and serve as a call to corrective action by the decision makers in both the elective and appointive judicial selection systems. We must strive for a judiciary that reflects the broad multi-cultural, multiracial fabric of New York’s society.
While much has been achieved, much remains to be done to increase judicial diversity. The New York State Bar Association will continue to monitor progress in this area and will take
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a more active role to transform New York’s judicial system to a place where the voices of our diverse population resonate at every judicial level and in every corner of our great state.
48 of 60 49 of 60 50 of 60 51 of 60 52 of 60 53 of 60 54 of 60 55 of 60 56 of 60 57 of 60 58 of 60 ACKNOWLEDGMENTS
The Committee is grateful to Chief Administrative Judge A. Gail Prudenti and the staff at the Office of Court Administration, Justice Betty Weinberg Ellerin and the
Committee on Women in the Law, and the Franklin H. Williams Judicial
Commission and its chair Justice Rose Sconiers for their invaluable assistance in compiling the data on the composition of the judiciary and the bar, and for creating the charts depicting that data that are appended to this report.
The Committee also wishes to thank NYSBA Senior Director of Membership and
Judicial Section Staff Liaison Patricia Wood and NYSBA Marketing Manager
Connie Schin for their considerable help in proofreading, formatting and publishing the report.
The Committee also acknowledges with gratitude the contributions of Law Interns
Briena Christiano, Rhani Elrahman, Michael Lieberman, and Albany City Criminal
Court Attorney Allison Clifford in researching and cite checking portions of the report.
Finally, we are indebted to Third Department Presiding Justice Karen Peters for her leadership on the issue of judicial diversity and for her guidance and encouragement.
59 of 60 NEW YORK STATE BAR ASSOCIATION
New York State Hon. Arlene Gordon-Oliver Westchester County Bar Association, Association of Black Lawyers of Westchester County, Justice, Bar Association: Town of Greenburg; White Plains, NY Judicial Section Diversity Committee
Hon. Rachel Kretser Hon. Deborah H. Karalunas Co-chair, Judicial Section, Former Presiding Member, NYSBA Judicial Diversity Committee Section and Council of Judicial Associations, Onondaga County Supreme Court, Syracuse, NY Presiding Member, NYSBA Judicial Section and Council of Judicial Associations, Chair, 3rd Judicial District Gender Fairness Committee, City Court – Criminal Division, Albany, NY
Hon. Antonio I. Brandveen Hon. Tanya Renee Kennedy Co-chair, Judicial Section, Co-Chair of the Civil Court, New York County Diversity Committee Gender Fairness Committee, Acting Supreme Court Justice and Supervising Judge, New York President, The Judicial Friends, New York State City Civil Court, New York, NY Supreme Court, Mineola, NY.
Hon. Conrad D. Singer Hon. Doris Ling-Cohan Co-chair, Judicial Section, Associate Justice, Appellate Term, First Department, Diversity Committee New York, NY President, National Asian Pacific American Bar Association Judicial Council; Immediate Past President, Association of Judges Commissioner, Franklin H. Williams Judicial of the Family Court of the State of New York, Commission; Co-founder, and Former Officer, Asian New York State Family Court, Westbury, NY American Bar Association of New York; Board of Advisors, Asian American Judges of New York. Hon. Genine D. Edwards Hon. Doris M. Gonzalez President, Board of Judges of the Civil Court of President, Association of Judges of Hispanic the City of New York, Chair, Gender Fairness Heritage, New York County Supreme Court, Committee of the Kings County Civil Court, Bronx, NY Acting Justice, Supreme Court, Brooklyn, NY
Hon. Michael R. Sonberg Hon. Darcel Denise Clark President, Association of Lesbian and Gay Supreme Court Appellate Division, 1st Judges, New York State Supreme Court, New Department, New York, NY; President, National York, NY Association of Women Judges New York Chapter
Hon. Lizbeth Gonzalez Hon. Marsha Steinhardt Immediate Past President, Association of Judges New York State Supreme Court, Second Judicial of Hispanic Heritage, New York County Supreme District, President-Elect, Brooklyn Women’s Bar Court, Bronx, NY Association, Brooklyn, NY BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
THE (IN)VISIBILITY OF MOTHERHOOD IN FAMILY COURT PROCEEDINGS
MELISSA L. BREGER*
ABSTRACT Issues of bias in Family Court in the context of race and overrepresentation of people of poverty have been extensively explored in academic literature. There is arguably a parallel overrepresentation of women, and particularly mothers, in our Family Courts. I question whether the Family Court would function as it currently does without mothers as its core litigants. Specifically, I delve into the implicit gender biases inherent in societal expectations of mothers as all-knowing, ever-nurturing, and ever-protective of their children––expectations that often ignore the complexities and nuances of motherhood. To illustrate my thesis, I focus on a case that I was involved in over a decade ago, which was subsequently featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child Welfare System. Through this narrative, the Article raises critical questions regarding the influence of implicit gender bias and the construct of motherhood in Family Court proceedings. As a result of its predominance, has the gender of Family Court litigants become virtually invisible? How might we identify, confront, and address this (in)visibility in our family justice system?
* Professor of Law, Albany Law School (J.D., The University of Michigan Law School). I owe much gratitude to Jill Laurie Goodman, Esq., for the inspiration to write this Article and her invitation to present its early iterations at the New York University School of Law’s Taking Stock: A Symposium Celebrating the N.Y.S. Judicial Committee on Women in the Courts 25th Anniversary. Thank you to Judge Karen Burstein for sharing her insights about the biases that her client “T.C.” faced. I owe thanks to Professors Annette Appell, Leigh Goodmark, and Jane Spinak for sharing their valuable thoughts and ideas on earlier drafts of this piece. Special thanks to Professor Susan Boyd of the University of British Columbia, Vancouver, for accepting this paper to be presented in the Care and Autonomy in the Age of Austerity’s Re-Conceptualising Motherhood panel at The Law & Society Association International Conference in Honolulu, Hawaii, in June 2012. I am very grateful to the valuable research assistance of Nisa Khan and Mary Armistead. This piece is especially dedicated to my own family, particularly my mother, my husband, and my daughter, who have taught me about motherhood. I also dedicate this piece to all of those men and women who fought for gender equality in the days when judges and lawyers could say, “What do you mean by gender bias?,” which then became, “We don’t have any gender bias in the courts anymore because we have a few women lawyers.” Let us work toward the day when our children and grandchildren will ask: “Gender bias? Whatever in the world is that?” But this time let us actually mean it.
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556 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555
I. INTRODUCTION: ON THE ROAD TO VISIBILITY Mothers in Family Court are so ubiquitous that they essentially become invisible.1 The concomitant visibility and invisibility of mothers often leads players in the Family Court system to rely upon gendered norms and roles in making critical and enduring decisions. In other words, because the role of mother is virtually universal to the main subjects of Family Court proceedings, and yet is invisible in its universality, it is much easier for the key players in the system to resort to heuristics, stereotypes, ideals, schemas, and biases about mothers than to perceive each litigant-mother as an individual person.2 Thus, the predominance of women as the persons charged with child abuse and neglect in Family Courts is often overlooked because we have become so accustomed to seeing the faces of women in our courtrooms. By failing to notice women’s predominance, we conveniently essentialize the “bad mother” as the person who is brought into Family Court on child protection charges, and compare her to the mythical “ideal mother,” who would never be charged with any kind of child abuse or neglect. The data about Family Court child welfare proceedings across the United States demonstrates that the majority of parents charged with child abuse or neglect are indeed mothers.3 Although governmental agencies typically file child
1. Jerry Kang and Mahzarin Banaji say the same of “implicit bias,” which I will be addressing for the balance of this Article. They state that implicit bias is “ubiquitous but invisible.” Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action”, 94 CALIF. L. REV. 1063, 1080 (2006). 2. By “invisibility,” I mean the phenomenon that allows us to become “adjusted” to the things we see every day without truly recognizing them. I should note that the term “invisibility” has often been linked to motherhood in another distinct context that is not being used in this Article. Specifically, feminists have long addressed the issue that the work of a mother in the household is invisible. See, e.g., KAREN J. SWIFT, MANUFACTURING “BAD MOTHERS”: A CRITICAL PERSPECTIVE ON CHILD NEGLECT 104–05 (1995). While this metaphor informs my use of the term “invisibility,” in this Article I am referring chiefly to the fact that, specifically, our courts are so full of women, primarily those without resources, that we overlook this gendered and socioeconomic reality. Would our Family Courts even function as they do now without women as their predominant litigants? 3. W. Bradford Wilcox & Jeffrey Dew, CENTER FOR MARRIAGE AND FAMILIES AT THE INSTITUTE FOR AMERICAN VALUES, Protectors or Perpetrators? Fathers, Mothers, and Child Abuse and Neglect, 2 (2008), http://www.americanvalues.org/pdfs/researchbrief7.pdf (documenting that, based on available federal data, mothers were involved in 64% of child welfare cases, while fathers were involved in 36.7% of such cases); Leah A. Hill, Do You See What I See? Reflections on How Bias Infiltrates the New York City Family Court - the Case of the Court Ordered Investigation, 40 COLUM. J.L. & SOC. PROBS. 527, 528 (2007) (noting that, in her first full day of family court, most of the litigants she saw were women); Adrienne Jennings Lockie, Salt in the Wounds: Why Attorneys Should Not Be Mandated Reporters of Child Abuse, 36 N.M. L. REV. 125, 155 (2006) (noting that “women of color and poor women” are the primary litigants in family court). See also KAREN J. SWIFT, MANUFACTURING “BAD MOTHERS”: A CRITICAL PERSPECTIVE ON CHILD NEGLECT 120 (1995) (arguing that mothers are scapegoats because of the structure and priorities of the current child welfare system). The identity of the mother is almost always known, while biological fathers are often missing. Furthermore, the mother is generally the child's primary caretaker and
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2012] THE (IN)VISIBILITY OF MOTHERHOOD 557 abuse or neglect cases against both of a child’s parents, when the agency proceeds against one parent only, it is too often against the child’s female caretaker.4 Scholars examining Family Court have long criticized the overrepresentation of low-income litigants of color, characterizing Family Court as “the poor person’s court,” and have questioned whether the family law system itself is inherently discriminatory toward persons of color.5 We openly admit and find unacceptable the over-representation of impoverished people, and people of
more likely to alter her behavior when faced with the threat of termination of parental rights. Leigh Goodmark, Achieving Batterer Accountability in the Child Protection System, 93 KY. L.J. 613, 614–15 (2004–2005). See Jane C. Murphy, Legal Images of Motherhood: Conflicting Definitions from Welfare “Reform,” Family, and Criminal Law, 83 CORNELL L. REV. 688, 708 (1998) (“[M]others overwhelmingly are the custodians and caretakers of children.”). See also Matthew R. Hall, Book Note, 4 J.L & FAM. STUD. 209 (2002) (reviewing Nancy E. Dowd, REDEFINING FATHERHOOD (2000)) (“Mothers are still overwhelmingly the primary care-taker of children. Fathers are at most secondary parents, and have often abandoned children altogether—physically, economically, and otherwise.”); Catherine J. Ross, The Tyranny of Time: Vulnerable Children, “Bad” Mothers, and Statutory Deadlines in Parental Termination Proceedings, 11 VA. J. SOC. POL’Y & L. 176 (2004); infra notes 4, 9, and 57. Additionally, I base my assertion on my own personal observations of Family Court litigants in all parts of New York, Chicago, and Southeastern Michigan over the past eighteen years. 4. Annette R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and Class in the Child Protection System, 48 S.C. L. REV. 577, 584 (1997) (“[T]he vast majority of the parents involved in the child protective system are mothers. Men are rarely brought into court, held accountable, or viewed as resources for their children. When fathers are involved in the proceedings, they are usually subject to lower expectations and are significantly less likely to be criminally charged with neglect or passive abuse of their children. Women, on the other hand, are more frequently charged under such laws, even when they had nothing to do with the abuse.”) (citations omitted); Mary Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for the Acts of Others, 2 U. CHI. ROUNDTABLE 13, 14–15 (1995) (“[C]hild abuse is a difficult topic because gender bias operates on many levels. Because of this bias, mothers are likely to be found liable for abuse and neglect regardless of the identity of the actor. If one looks at who is charged with abuse and neglect in juvenile courts, this worry is verified: it is almost always only the mother, though often the mother is charged with failing to protect and the active abuser was a man.”). See also DAVID G. GIL, VIOLENCE AGAINST CHILDREN: PHYSICAL CHILD ABUSE IN THE UNITED STATES, 140 (1970) (“Although more mothers than fathers are reported as perpetrators of abuse, the involvement rate in incidents of child abuse is higher for fathers and stepfathers than for mothers. This important relationship is unraveled when account is taken of the fact that nearly 30 percent of reported abuse incidents occur in female-headed households.”); Amy Sinden, “Why Won’t Mom Cooperate?”: A Critique of Informality in Child Welfare Proceedings, 11 YALE J.L. & FEMINISM 339, 364–65 (1999) ([I]t is no secret that the people affected by the child welfare system are some of the least powerful members of our society: women, many of whom belong to racial minority groups and virtually all of whom are desperately poor.”). 5. DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE 36–37 (2003) (“‘[T]his is a poor people’s court,’ says Brooklyn Family Court Judge Jody Adams. ‘If these people were middle class, they’d be seeing a shrink, not testifying before a judge.’”). Also in some states, like New York, litigants with money have the option of filing their family cases in Supreme Court. See also Leah A. Hill, Do You See What I See? Reflections on How Bias Infiltrates the New York City Family Court—the Case of the Court Ordered Investigation, 40 COLUM. J.L. & SOC. PROBS. 527 (2007); Sinden, supra note 4. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
558 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 color in the criminal and family courts, as well we should.6 In the same spirit, we also need to be concerned about the over-representation, prevalence, and implicit blaming of women litigants, particularly mothers.7 While this bias against motherhood is not unique to any particular courtroom,8 the motherhood bias is acutely sharp in family law proceedings, particularly child welfare proceedings,9 because one’s parenting is in fact the very issue being litigated before the courts. This Article will explore implicit expectations, ideals, and biases about mothers and how such stereotypes end up resulting in harm to mothers. One concrete way that such implicit biases harm mother-litigants is that courts too often base their decisions and judgments upon such biases, whether consciously or not.10 Thus, in order to eradicate detrimental influences and expectations, we first must identify and uncover them.11 With this Article, I hope to join others in sparking a dialogue in the next wave of feminist jurisprudence addressing the implicit bias against and stereotyping of mothers in the family law system.
6. See generally CHAPIN HALL CENTER FOR CHILDREN, UNDERSTANDING RACIAL AND ETHNIC DISPARITY IN CHILD WELFARE AND JUVENILE JUSTICE (2008), http://cjjr.georgetown.edu/pdfs/cjjr_ch_final.pdf (discussing efforts to alleviate racial and ethnic disparity in child welfare and juvenile justice systems); THE SENTENCING PROJECT, REDUCING RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM (2000), http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf (exploring policy reconsiderations regarding racial, ethnic, and social disparity in criminal courts). 7. For purposes of this Article, I will be referring to mothers as female and fathers as male. I realize this does not account for same-sex parenting, as well as many other types of parenting, but I am trying to more clearly delineate the issues by assigning the gender role of “mother” to women. I am focusing on mother as the birth mother for purposes of clarity, though countless mothers exist in other forms: egg donor, surrogate mother, adoptive mother, foster mother, stepmother, and the like. 8. See, e.g., Stephen Benard, In Paik & Shelley J. Correll, Cognitive Bias and the Motherhood Penalty, 59 HASTINGS L.J. 1359, 1386 (2008) (discussing bias against motherhood in employment). 9. See Becker, supra note 4, at 14–15 (citing Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, U. CHI. ROUNDTABLE 1, 7 (1995)) (stating that mothers are more likely to be found liable for abuse or neglect regardless of identity of actor). In this Article, I chose not to focus on child custody and visitation or child support proceedings. Though mothers may file more petitions in such proceedings, the cases by definition involve the other parent. This differs from child protective proceedings, which are public because the State is pursuing the case against the parent(s). I also chose not to focus upon termination of parental rights cases in this Article, but intend to do so in a forthcoming article. Lastly, I chose not to address civil order of protection cases because while the petitioner seeks protection from family or intimate-partner violence, the petitioner is still a private individual, and, thus, the issues are different than cases in which the State is pursuing the non-violent parent in a child neglect proceeding. Furthermore, there are subtler issues of gender bias in Family Court cases where females are not the predominant litigants, such as status offense cases and juvenile delinquency. My thanks to Professor Beth Schwartz for raising that idea to me when I presented this piece in Seattle in June 2011. She noted aptly that even when the (primarily male) children are being charged, judges look to mothers to explain their children’s bad behavior, thereby implying bad mothering. 10. Data shows that trial judges with implicit biases do form judgments based upon such biases. Jeffrey J. Rachlinksi, Sheri Lynn Johnson, Andrew J. Wistrich & Chris Guthrie, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195 (2009). 11. See, e.g., Benard, Paik & Correll, supra note 8, at 1386. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 559
This Article proceeds in six parts. In the next section, I lay the groundwork for this discussion by defining the essential underlying terms for this conversation. Part II(A) defines and distinguishes between explicit and implicit bias, and then introduces the concepts of implicit gender and motherhood bias. Part II(B) describes how gender biases can operate in the courtroom and intersect with the legal system overall. Part II(C) explores implicit motherhood bias in more depth. In Part III, the Article turns its focus to the harms of implicit motherhood biases within the Family Court. Part III(A) provides an overview of the Family Court system in the United States. Part III(B) then addresses how implicit motherhood biases manifest in Family Court and how they can prove particularly detrimental in that setting. In Part IV, in order to flesh out the theory of implicit motherhood bias, the Article examines the highly publicized case of “T.C.,” which I was professionally involved with over a decade ago.12 Part V offers a set of modest proposals that may allow us to identify and address issues of implicit motherhood bias in our family justice system, specifically positing that we educate the players in the court system about the ubiquity of implicit biases. In order to eradicate the pernicious operation of this form of implicit bias, those within the system must learn to recognize and identify the implicit biases that society holds about what it means to be a mother. Rooting out the effects of implicit motherhood bias will positively impact both the mothers that appear before Family Court and the perceived legitimacy of the system as a whole. Finally, the Conclusion sets forth areas worthy of further exploration and analysis, such as whether the child welfare and Family Court systems (and the larger society) are holding fathers to the same exacting standards that we hold mothers, and how we can look at the issue of implicit gender bias honestly and fully, while acknowledging the role of class and race as inextricably intertwined with gender and motherhood.
12. The case of T.C. was very visible in the newspapers and the press. In fact, the T.C. case was later featured as a case study in Professor Dorothy Roberts’ book, Shattered Bonds: The Color of Child Welfare. ROBERTS, supra note 5. In this Article, I am not revealing anything outside of public records/public accounts, other than a few of my own personal observations. That said, I choose to use only initials in this Article in order to preserve some semblance of privacy and confidentiality for the family. T.C. was a young, breastfeeding woman in Brooklyn who was charged with child neglect and child endangerment in both criminal and family courts because her newborn baby was undernourished and died. While she tried to seek help from multiple sources, she was repeatedly turned away. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
560 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555
II. THE CONTOURS OF BIAS IN THE COURT SYSTEM
A. Distinguishing Between Implicit and Explicit Bias Notwithstanding the fact that the phenomenon of bias is multi-faceted, complicated, and somewhat obscure, for purposes of this Article, I will utilize a rather simplistic dual-binary categorization of bias as either “explicit” or “implicit.” Explicit bias is bias that is openly expressed. A now infamous example of such explicit bias can be found in one of the major handbooks for practicing attorneys from the 1970s, which advised: “Women, like children, are prone to exaggeration; they generally have poor memories as to previous fabrications and exaggerations.”13 By contrast, implicit biases are those that are not necessarily openly and explicitly expressed, but are harbored nonetheless.14 Most or all people, even those who honestly believe they hold no biases, still maintain implicit biases.15 Implicit biases are often not conscious, intentional, or maliciously-based.16 For these reasons and others, implicit biases are often harder to identify and eradicate than explicit biases, which most of contemporary society has worked to specifically reject and disavow.
13. UNIFIED CT. SYS. OF THE ST. OF N.Y., REPORT OF THE NEW YORK TASK FORCE ON WOMEN IN THE COURTS (1986), reprinted in 15 FORDHAM URB. L.J. 11, 151 (1986-87) (citing F.L. BAILEY & H.B. ROTHBLATT, SUCCESSFUL TECHNIQUES FOR CRIMINAL TRIALS § 205, 190-91 (1st ed. 1971)). 14. See generally IMPLICIT RACIAL BIAS ACROSS THE LAW (Justin D. Levinson & Robert J. Smith eds., 2012). 15. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 HARV. L. & POL’Y REV. 149, 152 (2010) (“Implicit biases [unlike explicit biases] . . . are unstated and unrecognized and operate outside of conscious awareness. Social scientists refer to them as hidden, cognitive, or automatic biases, but they are nonetheless pervasive and powerful. Unfortunately, they are also much more difficult to ascertain, measure, and study than explicit biases.”). See also HARVARD UNIVERSITY, Project Implicit, https://implicit.harvard.edu/implicit/ (last visited Sept. 30, 2012) (functioning as a hands-on science museum exhibit, allowing web visitors to experience the manner in which human minds display effects of stereotypic and prejudicial associations acquired from their socio-cultural environment); Brian A. Nosek, Mahzarin R. Banaji & Anthony G. Greenwald, Harvesting Implicit Group Attitudes and Beliefs From a Demonstration Web Site, 6 GROUP DYNAMICS: THEORY, RES. & PRAC. 101, 112 (2002) (finding that Implicit Association Test (IAT) research indicates that all social groups hold implicit biases, regardless of age, gender, race, and political views). There are many who feel that IAT is not as accurate at testing implicit biases as it purports to be. See, e.g., Beth Azar, IAT: Fad or Fabulous?, 39 MONITOR ON PSYCHOL. 44 (July 2008), available at http://www.apa.org/monitor/2008/07-08/psychometric.aspx; John Tierney, In Bias Test, Shades of Gray, N.Y. TIMES, Nov. 17, 2008, at D1. 16. See Justin D. Levinson & Danielle Young, Implicit Gender Bias in the Legal Profession: An Empirical Study, 18 DUKE J. GENDER L. & POL’Y 1, 5–6 (2010) (explaining the development of implicit bias beginning from childhood and continuing into adulthood, the way these stereotypes remain largely unchanged, and how they eventually become implicit and automatic); Deborah L. Rhode, The Subtle Side of Sexism, 16 COLUM. J. GENDER & L. 613, 617–18 (2007) (arguing that implicit gender biases are often built upon group-based stereotyping that begins during childhood). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 561
The theory of implicit bias has been developed and extensively analyzed by social scientists over the past several decades, particularly as it relates to racial bias.17 Researchers have explained that, unlike explicit biases, implicit biases can form in children as young as three years old, and, then, deepen over the years of development.18 Specifically, Professor Gary Blasi explains that while explicit biases may be shunned and disapproved of in public, implicit biases only strengthen and “harden[]” over time, becoming part of one’s core set of beliefs.19 Distinct from explicit biases, not all implicit biases take the shape of outward animosity or hatred toward a particular group. One can hold beliefs stemming from seemingly innocuous stereotypes, which then subsequently form cognitive schemas and implicit biases.20 Given its nature, the problem of implicit bias is extensive and pervasive, and its effect is substantial. Researchers argue that these implicit biases can predict behavior, impacting both mundane behavior, such as whether someone engages in simple acts of courtesy, and consequential behavior, such as how someone evaluates another person’s work quality.21 As Professors Kang and Banaji note in their data analysis:
17. Bennett, supra note 15, at 152 (“One scientific explanation suggests that implicit bias is formed by repeated negative associations—such as the association of a particular race with crime—that establish neurological responses in the area of the brain responsible for detecting and quickly responding to danger.”). See also Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. REV. 465, 465 (2010) (summarizing “the empirical evidence that rejects facile claims of perceptual, cognitive, and behavioral colorblindness” and advocating a “behavioral realist” approach to color and race); Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 DUKE L.J. 345, 345 (2007) (“[J]udges and jurors unknowingly misremember case facts in racially biased ways,” which “perpetuates racial bias in case outcomes,” and needs to be met with “multifaceted responses, including debiasing techniques and cultural change efforts.”); Robert G. Schwemm, Why Do Landlords Still Discriminate (and What Can Be Done About It)?, 40 J. MARSHALL L. REV. 455, 500-05 (2000) (assessing the research on implicit bias and emphasizing that “it seems inevitable that we will make race-based choices, particularly in spontaneous situations, for reasons we are not fully conscious of,” yet whether a person’s bias will affect her conduct depends on her awareness of the bias, her motivation to correct it, and how much control she can exert over her behavior); Anthony Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. REV. 956, 987 (1999) (“[S]chemas may cause biases in the ways in which an officer processes information. An officer may misinterpret ambiguous conduct that could be consistent with innocence to coincide with the prevailing schema.”). 18. Levinson, supra note 17, at 363. 19. Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. REV. 1241, 1255–56 (2002). 20. Thompson, supra note 17, at 984 (“We cluster information into categories and this leads inevitably to some prejudgment based upon our perceptions of those groupings.”); Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945, 949–50 (2006). See generally Patricia G. Devine, Implicit Prejudice and Stereotyping: How Automatic Are They? Introduction to the Special Section, 81 J. PERSONALITY & SOC. PSYCHOL. 757 (2001) (introducing articles about implicit bias); Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CALIF. L. REV. 969 (2006); Albert J. Moore, Trial by Schema: Cognitive Filters in the Courtroom, 37 UCLA L. REV. 273 (1989). 21. Bennett, supra note 15, at 150; Kang & Lane, supra note 17, at 473; Levinson, supra note 17, at 351-52. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
562 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555
The science of ISC [implicit social cognition] examines those mental processes that operate without conscious awareness or conscious control but nevertheless influence fundamental evaluations of individuals and groups . . . . [E]vidence from hundreds of thousands of individuals across the globe shows that (1) the magnitude of implicit bias toward members of outgroups or disadvantaged groups is large, (2) implicit bias often conflicts with conscious attitudes, endorsed beliefs, and intentional behavior, (3) implicit bias influences evaluations of and behavior toward those who are the subject of the bias, and (4) self, situational, or broader cultural interventions can correct systematic and consensually shared implicit bias. As disturbing as this evidence is, there is too much of it to be ignored. Moreover, recent discoveries regarding malleability of bias provide the basis to imagine both individual and institutional change.22 As mentioned above, the study of implicit bias began with an examination of racial bias; however, academics have begun to look at implicit gender bias more deeply,23 and implicit gender bias is now becoming a solid body of work
22. Kang & Banaji, supra note 1, at 1064 (internal citations omitted). 23. Academics are beginning to test and write about implicit gender bias in employment law. See, e.g., David Faigman, Nilanjana Dasgupta & Cecelia Ridgeway, A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 HASTINGS L.J. 1389 (2008) (describing how scientific research on implicit bias, stereotypes, and discrimination can be used in employment discrimination and Title VII claims, and exploring limitations of studying the subject of implicit bias and using such research in legal cases given evidence rules regarding expert opinion testimony); Catherine Albiston, Kathryn Burkett Dickson, Charlotte Fishman & Leslie F. Levy, Ten Lessons for Practitioners About Family Responsibilities Discrimination and Stereotyping Evidence, 59 HASTINGS L.J. 1285, 1298 (2008) (discussing common patterns of gender stereotyping that mothers face in the workplace and how these implicit and explicit stereotypes may affect decision-making long before the “moment of decision”); Rachel Arnow-Richman, Public Law and Private Process: Toward an Incentivized Organizational Justice Model of Equal Employment Quality for Caregivers, 2007 UTAH L. REV. 25, 26 (2007) (mentioning that “second- generation discrimination,” resulting in women lagging behind men in areas such as job advancement, pay, and consistent workforce participation, has been attributed to women’s disproportionate role in family caregiving, “coupled with a combination of work norms and unconscious gender stereotypes.”) (citation omitted); Joan C. Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job, 26 HARV. WOMEN’S L.J. 77 (2003) (addressing the difficulties family caregivers experience at work, like the “glass ceiling” and “maternal wall,” due to bias against caregiver status); Nina Victoria Patel, Implicit Bias Against Professional Women (May 2010) (unpublished B.S. thesis, New York University), http://w4.stern.nyu.edu/uc/honorsprogram/2010/ Thesis_2010_Nina%20Patel.pdf (exploring implicit attitudes and stereotypes against married women and mothers). See also Melinda Cleary, Mothering Under the Microscope: Gender Bias in Law and Medicine and the Problem of Munchausen Syndrome by Proxy, 7 T.M. COOLEY J. PRAC. & CLINICAL L. 183, 187 (2005) (arguing that “in child abuse and homicide cases where mothers stand accused, circumstantial evidence . . . [is] considered and applied from a position of gender- bias”); Cynthia A. McNeely, Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court, 25 FLA. ST. U. L. REV. 891, 896 (1998) (examining gender stereotypes and their relation to differences in parental roles for women and men). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 563 as well.24 In terms of implicit gender bias, there are many ways in which such bias can manifest itself. Some implicit biases in the arena of gender serve as constant reinforcements for a variety of gender norms. For example, many people subscribe to gendered stereotypes that suggest that all women inherently possess particular traits (e.g., passive, gentle, nurturing), while all men possess other inherent traits (e.g., assertive, strong, competent). As Professor Joan Williams further explains: In the last thirty years, empirical social psychology has developed a very different definition of bias. This newer definition points out that much of gender bias is neither self-conscious nor aversive; it is built into unspoken associations or “implicit expectancies” that form unstated and unexamined “cognitive bias” that can skew the way information is: perceived – what people notice, and what they overlook attributed – the way people interpret causation remembered – the way things are encoded in, and retrieved from, memory, and more generally, the way information is used in a wide range of social judgments.25 Implicit gender bias studies have occurred in employment law and criminal law fairly extensively, but data in the context of family law is still evolving.26
B. Gender Bias Manifesting Itself in the Courtroom In the legal arena, gender bias in the courtroom is hardly new and unexamined. Feminist giants and academics have long criticized gender bias in myriad facets of the legal system.27 In addition to academia, organizations like state task forces and family law bar associations have worked to gather evidence to support claims of gender
24. Implicit gender biases manifest at high rates in the context of the legal profession. See, e.g., Levinson & Young, supra note 16 (using empirical study to provide statistical overview of gender disparities in legal profession, examining scholarship linking implicit gender stereotypes to gender disparities in legal profession, and providing a roadmap for future research on implicit gender bias in the legal profession). 25. Joan C. Williams, Litigating the Glass Ceiling and the Maternal Wall: Using Stereotyping and Cognitive Bias Evidence to Prove Gender Discrimination, 7 EMP. RTS. & EMP. POL’Y J. 287, 293–94 (2003) (citation omitted). 26. Justin D. Levinson, Introduction: Racial Disparities, Social Science, and the Legal System, in IMPLICIT RACIAL BIAS ACROSS THE LAW, 1 (Justin D. Levinson & Robert J. Smith eds., 2012). 27. See, e.g., Catharine A. MacKinnon, SEX EQUALITY (2007); Martha Minow, Consider the Consequences, 84 MICH. L. REV. 900 (1986) (reviewing Lenore J. Weitzman, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA (1985)); PHYLLIS CHESLER, MOTHERS ON TRIAL: THE BATTLE FOR CHILDREN AND CUSTODY 30 (1986). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
564 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 bias.28 As one example of a pioneering state task force, in 1986, the New York Task Force on Women in the Courts was formed. The members of the newly formed Task Force effectively recognized, identified, and disapproved of the explicit gender bias that existed in the court systems it studied. In part, some of this explicit bias was reflected in the paucity of women in legal positions in the bar and on the bench.29 In other ways, the bias was explicit in the use of sexually-charged remarks to female attorneys or gendered language found within the words of the statutes and in the dialogue in the courtrooms.30 The Task Force sought to identify and expose biased perspectives and the overly male-dominated cultures of the courts.31 By task forces and other associations and groups bringing to light explicit gender bias, many of the goals set out by those groups examining explicit gender bias have been achieved or at least partially attained. For example, updated New York Task Force reports indicate that more women judges are on the bench and in high positions of power in the judicial system as clerks, judicial officers, and court administrators.32 New York, as most states, has more admitted women lawyers today, in 2012, than it did in 1986. Yet, still fifteen years after the initial New York Task Force was created, while the New York State Judiciary Committee on Women in the Courts heralded the progress that had been made, it recognized that more needed to be accomplished. The Committee Report noted that courts need to be continually cognizant of biases against mothers such as “the ways that dual responsibilities for caring for minor children and for earning a living often place special burdens on women” and of “the ways that sex-based stereotypes lead to the application of higher standards of parenting to mothers than to fathers.”33 Moreover, the report
28. See, e.g., COMMONWEALTH OF MASSACHUSETTS, GENDER BIAS STUDY OF THE SUPREME JUDICIAL COURT (1989), reprinted in 23 SUFFOLK U. L. REV. 575 (1989); Blake D. Morant, Introductory Essay: The Relevance of Gender Bias Studies, 58 WASH. & LEE L. REV. 1073, 1073– 75 (2001) (scrutinizing the study on Gender Bias in the Courts of the Commonwealth of Virginia both empirically and theoretically); Gender Bias in the Courts of the Commonwealth Final Report, 7 WM. & MARY J. WOMEN & L. 705, 711 (2001); Linda C. Morrison, The National Association of Women Judges: Agent of Change, 17 WIS. WOMEN'S L.J. 291 (2002). 29. UNIFIED CT. SYS. OF THE ST. OF N.Y., supra note 13, at 24–25, 153. 30. Id. at 131–39. 31. Id. at 18 (“The courts are viewed by a substantial group of our citizenry as a male- dominated institution disposed to discriminate against persons who are not part of its traditional constituency.”). See also N.Y. ST. JUD. COMM. ON WOMEN IN THE CTS., WOMEN IN THE COURTS: A WORK IN PROGRESS 1 (2002), http://www.nycourts.gov/ip/womeninthecourts/womeninthecourts_ report.pdf. 32. N.Y. ST. JUD. COMM. ON WOMEN IN THE CTS., supra note 31, at 33, 35. Cf. Karen Sloan and Laura Haring, Parity on the Bench Remains Elusive for Women Judges, N.Y. L.J. 2 (July 19, 2012), available at http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202563477436&Parity_on_the_Bench _Remains_Elusive_for_Women_Judges&slreturn=20130015160244. 33. N.Y. ST. JUD. COMM. ON WOMEN IN THE CTS., supra note 31, at 3. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 565 emphasized, “some judges appear to give weight to gender-based stereotypes about mothers and fathers that may have little bearing on the child’s best interest and that unfairly discriminate against men and women.”34 This groundbreaking work exposing what was happening inside the courtrooms, not just in New York, but also around the country, was crucial in raising awareness about explicit gender bias. For purposes of this Article, I am referring to this work as the “first wave” of exposing gender bias in the courtroom.35 Thus, I posit in this Article that the “second wave” of uncovering gender bias in the courtroom is to look more closely at the implicit biases that players in the court system hold. More specifically, I wish to examine implicit maternal biases in the context of Family Court, in order to address how judges, lawyers, and caseworkers think about families, motherhood, and women.
C. Exploring Implicit Motherhood Bias in Family Courts As explained in Part IIA, supra, when we utilize the term explicit gender bias, we are talking about bias that is out-in-the-open and identifiable, whether intentionally or unintentionally biased. In the context of family law, an example of explicit gender bias could be when a lawyer utters biased comments about women in the courtroom; the speaker is being explicitly biased and typically intends to do so. Another example of explicit, yet arguably unintentional gender bias, might be if a Family Court judge writes a memo to a group of male and female lawyers starting with “Dear Sirs:” This type of gendered language is an example of explicit gender bias in the courtroom setting. On the other hand, as explained earlier, implicit bias is much more subtle, nuanced, and often undetected. In the context of family law, this is the kind of bias that judges, caseworkers, or lawyers may employ, yet not even be aware that they are doing so. Regardless of intentions, however, this implicit bias in the courtroom can be nonetheless harmful to litigants.36 For an example of an implicit motherhood bias being harmful in a Family Court proceeding, imagine that a judge carries stereotypes about a “good’ mother being selfless and subjugating her own needs to those of her children, and a “bad” mother as one who is putting some other need before her children’s needs. Now, when that judge is presiding over actual cases, she is implicitly seeing a
34. Id. at 23 35. I thank Professor Annette Appell, as well as my co-presenter Professor Kathleen Kelly Janus (Critical Theory/Family Working Group–Writer’s Workshop at N.Y.U. School of Law) for suggesting the framing of this section as the “second wave.” 36. Jerry Kang, Communications Law: Bits of Bias, in IMPLICIT RACIAL BIAS ACROSS THE LAW 132, 132 (Justin D. Levinson & Robert J. Smith eds., 2012); Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson, & Jennifer Mnookin, Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124, 1148 (providing “some suggestive evidence that implicit attitudes may be influencing judges’ behavior”). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
566 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 particular litigant as a “bad mother,” if, for instance, the litigant uses illegal drugs, or if she is in love with and lives with a batterer, or, perhaps, even if she works the night shift. Feminist scholars have increasingly studied motherhood bias and the stereotypes of mothering.37 Motherhood bias is distinct from gender bias,38 yet interwoven and interrelated. When I talk about implicit motherhood biases, I am referring to the notion that society implicitly defines or envisions mothers as the ideal, perfect, flawless Mother––dreamily content as such. These subtle gendered constructs that we as a society perpetuate about motherhood can be innocently held, yet can prove to be insidious and harmful to mothers as a whole. Because, in essence, if mothers are universally “perfect” in our imagination, how can we reconcile actual mothers who cannot possibly be so “perfect” in reality? Because of the nature of such a stereotypical notion of motherhood––both its images of angelic motherhood and its implicit embedded nature––it can be that much harder to assess, pinpoint, and eradicate long-term.39 Illustratively, there are multiple implicit societal expectations of mothers, holding mothers to the highest possible, almost unattainable, standards.40 Mothers instinctually are
37. Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, U. CHI. ROUNDTABLE 1, 3–9 (1995) (discussing the misogynistic and “mother blaming” nature of juvenile courts); Kelli Lane, Grounding Mother and Child in Their Intrinsic Relational Unit: An Analysis of Motherhood and the Parent-Child Relationship Within the Child Welfare System, 25 WOMEN’S RTS. L. REP. 145 (2004). See also PHYLLIS CHESLER, MOTHERS ON TRIAL: THE BATTLE FOR CHILDREN AND CUSTODY 95–170 (1987); Nancy Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in RETHINKING THE FAMILY: SOME FEMINIST QUESTIONS (Thorne & Yalom eds., 1992); Martha Minow, Consider the Consequences, 84 MICH. L. REV. 900 (1986); Deborah L. Rhode, The Subtle Side of Sexism, 16 COLUM. J. GENDER & L. 613 (2007); Appell, supra note 4. 38. See Benard, Paik & Correll, supra note 8, at 1386 (“[E]ven highly prejudiced people usually know that open displays of [racial or gender] bias are considered unacceptable. It is not clear that such strong social desirability concerns exist for discrimination against mothers.”) (citation omitted). 39. Furthermore, it can be difficult for those who hold such biases to imagine how such a “good” bias with favorable connotations can be harmful. Unfortunately, this mentality can be much more insidious and harder to eradicate. 40. See, e.g., Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 224, 231–32 (Martha Albertson Fineman & Isabel Karpin eds., 1995). See also Marie Ashe, "Bad Mothers" and Welfare Reform in Massachusetts: The Case of Claribel Ventura, in FEMINISM, MEDIA, AND THE LAW 203 (Martha A. Fineman & Martha T. McCluskey eds., 1997); Marie Ashe, Postmodernism, Legal Ethics, and Representation of "Bad Mothers", in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 142 (Martha Albertson Fineman & Isabel Karpin eds., 1995); Benard, Paik & Correll, supra note 8, at 1367; Ann Shalleck, Child Custody and Child Neglect: Parenthood in Legal Practice and Culture, in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 308 (Martha Albertson Fineman & Isabel Karpin eds., 1995); Jane M. Spinak, Reflections on a Case (of Motherhood), 95 COLUM. L. REV. 1990 (1995). Unrealistic motherhood ideals and expectations are also present in the context of domestic violence. See Joan Meier, Introduction, in THE PUBLIC NATURE OF PRIVATE VIOLENCE 121 (Martha Albertson Fineman, & Roxanne Mykitiuk eds., 1994). See also Leigh Goodmark, A TROUBLED MARRIAGE: DOMESTIC VIOLENCE AND THE LEGAL SYSTEM (2012); Jane H. Aiken & Jane C. Murphy, Evidence Issues in Domestic Violence Civil Cases, 34 FAM. L.Q. 43 (2001); Appell, supra note 4; Naomi Cahn & Joan Meier, Domestic Violence and Feminist Jurisprudence: BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 567 supposed to know how to raise children and raise them well. Mothers are envisioned as selfless and self-sacrificing.41 Society envisions mothers as ever- nurturing and ever-protective of their children.42 All of these expectations become embedded in the notion of a fictional, ideal Mother, and in doing so, such unrealistic expectations ignore the fullness and intricacies of mothers in reality.43 By looking at pre-conceived notions about motherhood held by many players in the Family Court system, we can see how such attitudes can be harmful. As one concrete example, if the players in the child welfare system set unattainable goals for women based upon false expectations of motherhood, this can result in children being placed in foster care unnecessarily or for too long of a time. If a judge believes the litigant in the courtroom has not mothered appropriately, it is much easier to agree with the child welfare agency that intervention or continued intervention is necessary. The difficulty here, though, is that judges, caseworkers, and lawyers are not always aware that they hold these stereotypes or biases about women and mothers. Thus, while most judges are not explicitly biased toward a group or even an individual, the judges might have no idea what implicit biases they hold until they learn about and reflect upon any implicit biases they may harbor. In this way, implicit biases can prove to be even more intransigent and entrenched
Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339, 350–53 (1995); Nancy Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in RETHINKING THE FAMILY 191 (Barrie Thorne & Marilyn Yalom eds., 1992); Goodmark, supra note 3; Leigh Goodmark, Telling Stories, Saving Lives: The Battered Mothers’ Testimony Project, Women’s Narratives, and Court Reform, 37 ARIZ. ST. L.J. 709 (2005) [hereinafter Goodmark, Telling Stories, Saving Lives]; Ann Shalleck, Institutions and the Development of Legal Theory: The Significance of the Feminism and Legal Theory Project, 13 AM. U. J. GENDER SOC. POL’Y & L. 7 (2005); Murphy, supra note 3. 41. See Spinak, supra note 40, at 2075 (“The sacrificing mother is a powerful totem. Deep in Western consciousness lives the Biblical mother—do we even remember her name—who would relinquish her child to another rather than see it killed. This ultimate sacrifice led King Solomon to determine that this mother must be the true mother of the child for only a true mother would make such a sacrifice.”); Carol T. Baines, Patricia M. Evans & Sheila M. Neysmith, Women’s Caring: Work Expanding, State Contracting, in WOMEN’S CARING: FEMINIST PERSPECTIVES ON SOCIAL WELFARE 9 (Carol Baines, Patricia Evans & Sheila Neysmith eds., 1998) (“To equate ‘caring’ with selfless, never-ending, and uncomplaining ‘giving’ virtually obliterates the constraints, costs, and consequences that fall so heavily on women”). 42. “Feminists have argued that societal beliefs contribute to the ‘myth of motherhood’ that serves to idealize mothers. ‘Good’ mothers are not only expected to be the primary nurturers and caregivers of their children but also are presumed to possess a maternal instinct that leads them to protect their children with little or no concern for their own safety.” Cheryl Terrance, Karyn Plumm & Betsi Little, Maternal Blame: Battered Women and Abused Children, 14 VIOLENCE AGAINST WOMEN 870, 873–74 (2008) (citations omitted). See also Benard, Paik & Correll, supra note 8, at 1367 (“Women are stereotyped as warm, communal, and nurturing.”) (citing Madeline E. Heilman & Tyler G. Okimoto, Motherhood: A Potential Source of Bias in Employment Decisions, 93 J. APPLIED PSYCHOL. 189, 189 (2008)); Chodorow & Contratto, supra note 40. 43. Odeana R. Neal, Myths and Moms: Images of Women and Termination of Parental Rights, 5 KAN. J.L. & PUB. POL’Y 61, 66 (1995) (“Today, mothers are similarly charged with raising their children to meet standards that they did not create. National or community ideals now replace the father as the entity to whom mothers must answer.”). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
568 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 than explicit biases. Again, by definition, implicit biases are harder to discern than explicit biases. Implicit biases infiltrate the social constructs from which we base our ideas and sense of parenthood. In the context of motherhood, implicit biases shape the unconscious stereotypes embedded into our psyches—the construct of and prototype of the “ideal mother.” We need to be cognizant of how society expects perfection based upon our cognitive schemas of what it means to be a mother. We expect mothers to be the ultimate nurturers and caregivers without ever erring. Researchers in other areas of law and social science, such as labor and employment law, have explored motherhood biases. In doing so, they have similarly distinguished between explicit and implicit biases against mothers. In some ways, explicit biases about mothers are more socially acceptable than explicit biases about other groups of people. Some theorists have tried to explain why this might be, and show the various types of bias at work, as follows: Race and gender bias in the United States are often accompanied by strong social desirability concerns, because even highly prejudiced people usually know that open displays of bias are considered unacceptable. It is not clear that such strong social desirability concerns exist for discrimination against mothers . . . . In the studies we have conducted, participants are sometimes willing to volunteer that they discriminated against the mothers. In fact, in a section of the study in which participants are asked to list pros and cons of prospective applicants for a job, a number of participants noted “children” as a con. In contrast, participants never listed an applicant’s race or gender as a con—doing so would be almost unthinkable in today’s workplace. This suggests to us that individuals may be less reticent about openly discriminating against mothers than they would be about openly discriminating against members of other groups. Court cases provide further anecdotal evidence that motherhood bias is partially explicit.44 Though, to date, many scholars have focused on the operation of gender bias within labor law, I believe we need to examine more specifically implicit motherhood bias in family law, uncover how this bias may be most pernicious to female litigants in the Family Court, and address how this bias may be perceived from the perspective of female litigants in our Family Courts. I will seek to explore these goals in the next section.
44. Benard, Paik & Correll, supra note 8, at 1385–86. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
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III. THE DANGERS OF IMPLICIT MOTHERHOOD BIAS MANIFESTING IN FAMILY COURTS: WHY MOTHERS CANNOT AFFORD TO FALTER
A. Family Court in General When I refer to Family Court in this Article, I am referring to the myriad of courts across the nation handling family law and domestic matters. Depending on jurisdiction, these courts handle all or any combination of family law cases, such as custody, visitation, adoption, paternity, child and spousal support, divorce, property division, child welfare (child abuse and neglect), termination of parental rights, delinquency, status offenses, and civil orders of protection. Child welfare proceedings, which are the focus of this Article, are those proceedings where the State or an agency of the State files a petition against the parent(s), caretaker(s), or guardian(s) of the child(ren) for alleged child abuse or child neglect. The term child welfare proceedings, for purposes of this Article, will concentrate only upon child abuse and neglect proceedings, and not termination of parental rights proceedings.45 The State has multiple options once a report of child abuse or neglect is called into a state central registry.46 For example, after an initial investigation by a caseworker, the State can choose to keep the child(ren) in the family home and offer services,47 or may request removal of the child(ren) from the home.48 If the
45. Different states utilize different terminology, such as child protective proceedings, child dependency proceedings, shelter hearings, child welfare hearings, and child abuse and neglect proceedings. Unless otherwise stated, the phrases “child welfare proceedings” and “child protective proceedings” will be used interchangeably throughout the remainder of this Article to label the type of proceedings in which a state can intervene in a family to protect a child from alleged abuse and neglect. See Melissa L. Breger, Against the Dilution of a Child’s Voice in Court, 20 IND. INT’L & COMP. L. REV. 175, 181 (2010). The actual processes and procedures amongst states differ, but generally the State bears the burden of proving that child abuse or neglect has occurred and that it was perpetrated by the child’s parent(s) or caretaker. See, e.g., N.Y. FAM. CT. ACT § 1031 (McKinney 2012); U.S. Dep’t of Health and Human Servs., Proving Child Maltreatment in Court, CHILD WELFARE INFORMATION GATEWAY, http://www.childwelfare.gov/pubs/usermanuals/courts _92/courtsi.cfm (last visited October 6, 2012); Paul Chill, Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings, 41 FAM. CT. REV. 457 (2003). 46. State central registries are databases that compile reports of child abuse, which allow for easy access of information regarding previous child abuse investigations in order to help with current child abuse investigations. For a more detailed explanation, see U.S. Dep’t of Health and Human Servs., Interim Report to the Congress on the Feasibility of a National Child Abuse Registry (May 2009), http://aspe.hhs.gov/hsp/09/ChildAbuseRegistryInterimReport/report.pdf. 47. The agency responsible, called Child Protective Services (CPS) in many states, will usually provide two categories of services: preventive services and post-investigation services. Post-investigation services address the safety of the child and are based on factors such as an assessment of the family’s strengths, weaknesses, and needs. U.S. Dep’t of Health & Human Servs., Child Maltreatment 2006, 83 (2006) [hereinafter Child Maltreatment 2006], http://archive.acf.hhs.gov/programs/cb/pubs/cm06/cm06.pdf. Examples of post-investigation services include: individual counseling; family-based services, such as family counseling or family support; in-home services; and court-based services. Id.; U.S. Dep’t of Health & Human Servs., BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
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State is seeking to remove the child(ren) from the home immediately, the parents have the right to demand the child(ren) be returned home, and the State typically must demonstrate that the removal of the child(ren) is necessary to avoid imminent risk to the child(ren)’s life or health.49 Following this hearing, the parent has a right to an adjudicative hearing, essentially a fact-finding hearing, in which the State must prove that the parent(s) or caretaker(s) did indeed abuse or neglect the child(ren). At times, parents may be deemed to have neglected all of the children in their care based upon the alleged abuse or neglect of one particular child. In such cases, the agency files a “derivative neglect” petition to reach those children in the home not directly abused or neglected by the parents.50 The agency presumes
National Study of Child Protective Services Systems and Reform Efforts: Review of State CPS Policy (April 2003), http://aspe.hhs.gov/hsp/cps-status03/state-policy03/ [hereinafter Child Maltreatment 2003] (explaining that services may be given in the home in order to preserve the family if the safety of the child can be ensured). 48. Children may be removed from their homes during or after an investigation. Child Maltreatment 2003, supra note 47, at 69. An estimated 312,000 children were removed from their homes as a result of a child maltreatment investigation in 2006. This number decreased in 2008. Approximately sixteen percent of these children suffer from more than one type of maltreatment. See Child Maltreatment 2006, supra note 48, at 85; U.S. Dep’t of Health & Human Servs., Child Maltreatment 2008, 79 (2008), http://archive.acf.hhs.gov/programs/cb/pubs/cm08/cm08.pdf. Cf. N.Y. FAM. CT. ACT §§ 1015-a, 1017 (McKinney 2012) (removal of children); Seventh Judicial District Family Courts, Neglect and Abuse: N Petition, http://www.nycourts.gov/courts/7jd/courts/ family/case_types/neglect_and_abuse.shtml (last visited October 7, 2012) (describing points in child welfare process when children may be removed from respondents’ home and various due process hearings afforded during each step). 49. “Imminent risk” is the standard employed by New York’s statute. See N.Y. FAM. CT. ACT § 1028 (McKinney 2012). N.Y. Fam. Ct. Act § 1012(f)(i) defines “neglected child” as a child less than eighteen years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.” N.Y. FAM. CT. ACT § 1012(f)(i) (McKinney 2012). As a case proceeds beyond the removal hearing, the parents have the option either to accept the services and conditions of the agency or to contest the allegations of child abuse and neglect. If the parents decide to contest the allegations, the court holds a full evidentiary hearing. See N.Y. FAM. CT. ACT § 1046 (McKinney 2012) (describing types of evidence in such hearings). If the trier of fact determines that abuse or neglect has occurred, the case then proceeds to the dispositional stage where the primary purpose of the hearing is to determine whether the child will remain in the home or be moved elsewhere. N.Y. FAM. CT. ACT § 1055 (McKinney 2012). These cases can be the precursors to termination of parental rights petitions, which may result in permanent severing of the parent-child relationship. However, termination petitions can also be filed simultaneously with child abuse petitions in some instances. See Melissa L. Breger, Making Waves or Keeping the Calm?: Analyzing the Institutional Culture of Family Courts Through the Lens of Social Psychology Groupthink Theory, 34 L. & PSYCHOL. REV. 55, 67 (2010). See also Seventh Judicial District, supra note 48. To examine different state standards at the removal stages, see Chill, supra note 45, at 461. 50. See N.Y. FAM. CT. ACT § 1046(a)(i) (McKinney 2012) (“[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent . . . .”). See, e.g., In re Angel L.H., 924 N.Y.S.2d 888 (N.Y. App. Div. 2011) (holding that mother’s neglect of subject-child was sufficiently intertwined with care of another child as to indicate that subject-child was equally at risk, and stating that the “nature, duration, and circumstances surrounding the neglect of the mother’s other children can be said to evidence fundamental flaws in the [mother’s] understanding of the duties of parenthood.”) BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 571 that the abuse or neglect of the target child creates a danger or a risk to all other children in the household, regardless of any alleged injury or harm to those other children.51
B. The Harm of Implicit Motherhood Biases in Family Court Why are implicit motherhood biases potentially harmful to litigants in Family Court? Social scientists demonstrate that individuals often rely upon such biases when making decisions and judgments about others.52 In fact, when faced with information, the brain resorts to mental shortcuts or heuristics such as stereotypes.53 These influences, whether conscious or not, can then distort judgment about particular individuals.54 If––in a system largely without juries–– Family Court judges are resorting to such biases when making judicial decisions,55 those jurists are potentially issuing rulings based upon implicit assumptions.56 When a Family Court litigant is facing the removal of her children from her home, any judicial skewing towards faulty assumptions is dangerous. As noted earlier, women are and have been the predominant litigants in child welfare proceedings across North America for as long as we have had Juvenile and Family Courts. Although neglect is not by definition a gendered term, “virtually all people actually accused of neglecting their children, both historically and at present, are mothers . . . .”57 As Professor Marie Ashe notes: Lawyers representing [mothers/women] charged with child abuse are positioned to be keenly aware of the particularly gendered focus of
(citations omitted) (alteration in original). 51. For further discussion of the topic, see Robert May, Derivative Neglect in New York State: Vague Standards and Over-Enforcement, 40 COLUM. J.L. & SOC. PROBS. 605 (2007). 52. Morant, supra note 28, at 1079. 53. Id. at 1079–80; Breger, supra note 49, at 84–85. 54. Morant, supra note 28, at 1079–80. 55. Most family court cases—especially child welfare cases—have no juries or panels of judges but a single fact finder. Melissa L. Breger, Introducing the Construct of the Jury into Family Violence Proceedings and Family Court Jurisprudence, 13 MICH. J. GENDER & L. 1, 21 (2006). 56. Morant, supra note 28, at 1076. 57. SWIFT, supra note 3, at 101; Susan Wells, What Criteria Are Most Critical to Determine the Urgency of Child Protective Services Response?, in HANDBOOK FOR CHILD PROTECTION PRACTICE 7–9 (Howard Dubowitz & Diane DePanfilis eds., 2000); Douglas J. Besharov, Child Abuse Realities: Over-Reporting and Poverty, 8 VA J. SOC. POL’Y & L. 165, 183, 186 (2000) (analyzing the connection between poverty and maltreatment, the concentration of these issues among single-mother households, and how reported situations of child maltreatment are more prevalent among families headed by teen mothers than families headed by non-teen mothers); William Wesley Patton, Revictimizing Child Abuse Victims: An Empirical Rebuttal to the Open Juvenile Dependency Court Reform Movement, 38 SUFFOLK U. L. REV. 303, 315 n.67 (2005) (describing how referencing patriarchal prejudice plays out in sexual abuse cases, where courts blame the child-victim and her mother, while exonerating the abusing father). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
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child dependency law. The parents from whom children are judicially removed are typically mothers and it is typically a bad mother who is charged with abuse and neglect. The male parents of such children are generally so absent that if they are identifiable at all, they are often in whereabouts unreachable by summons and subpoena. They have almost always already escaped or evaded the jurisdiction as they have escaped or evaded the family and, in particular, any bond to the adult female from whom the child stands to be rescued. In making their escapes male adults avoid both the onus of caregiving responsibility and the stigma of badness that attaches to women who prove inadequate in meeting that responsibility.58 The unrealistic expectations that jurists have of mothers can prove to be directly harmful to those mothers who are brought before the court system. If judges (or we as a society) expect perfection from mothers, any particular mother-litigant could never measure up to implicit expectations about what it means to be a mother. This, of course, is especially challenging when you think about the fact that the very reason a particular mother-litigant has been brought to court is based upon another person’s assessment that she is not an adequate mother. Compound this with issues of poverty and lack of resources, along with race and age, and now you have a litigant facing a system that expects her to fail before she even walks into the courtroom. Society’s perception of motherhood is usually binary: one is either a good mother or a bad mother.59 The word “mother” implies a good, caring mother, and thus, as Professor Catherine J. Ross notes, “the adjective need not even be stated.”60 Yet, for any other type of mother, we have many sorts of stock characters––“the poor mother,”61 “the single mother,” “the working mother,” “the teen mother,” and “the bad mother.”62 Moreover, as Professor Dorothy
58. Marie Ashe, "Bad Mothers," "Good Lawyers," and "Legal Ethics", 81 Geo. L.J. 2533, 2547 (1993). 59. Neal, supra note 43, at 61 (“We expect mothers to provide their children with all the love, caring, nurturing, and emotional fulfillment that we perceive those children need and desire; we expect her to be all things that we want her to be when we need her to be them. A woman who can fulfill the expectations of her children and of her community is viewed as a good mother. If she cannot – or if she does not – she is bad.”). 60. Ross, supra note 3, at 187. See also Janet Mosher, Caught in Tangled Webs of Care: Women Abused in Intimate Relationships, in WOMEN’S CARING: FEMINIST PERSPECTIVES ON SOCIAL WELFARE 142 (Carol Baines, Patricia Evans & Sheila Neysmith eds., 1998) (explaining that the “anatomical differences between the sexes” has led to a social-historical construction of gender, in which women are presumed to be “nurturant, caring, dependent, emotive, irrational, selfless, submissive, passive, and associated with the roles of wife and mother within the institution of ‘the family’. . . .”). 61. See generally Neal, supra note 43, at 65–68 (discussing the poor mother, often subcategorized as the poor, black mother, a member of the “undeserving” poor). 62. See SUE MILLER, THE GOOD MOTHERS (1986). See also PHYLLIS CHESLER, MOTHERS ON TRIAL: THE BATTLE FOR CHILDREN AND CUSTODY 95–170 (1986) (describing five types of classic “bad mothers:” the sexual mother, the uppity mother, the lesbian mother, the poor mother, and the abused mother); Neal, supra note 43, at 66 (explaining that mothers who challenge patriarchy and BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
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Roberts states, “motherhood has very different meanings in different contexts of race, class, sexual orientation, and so on. Indeed, it is in their role as mothers that women are most differentiated by race, class, and sexual orientation.”63 These implicit expectations of mothers are distilled in their most pernicious form when women caretakers stand as litigants in child welfare proceedings. Professor Karen Swift examined child neglect files and noted the inherent biases and embedded stereotypes of parenting involved in the proceedings: [Child care and household cleanliness are] not men’s work, and the fact that [a father] does this – even once – suggests he is helpful, cooperative, and willing to do more than his share. The very fact that he is shown to be doing this work in a case marked as child neglect also reflects badly on the mother, because he appears to be doing her work. However, failure to provide care and in fact the complete abandonment of children by their fathers generally produces no comment at all in these files. In cases of neglect, fathers are usually not mentioned if they are not living in the home. If they are living at home, files seldom comment on the quality, quantity, or frequency of their financial input. Clearly, these files are not about fathers, but about mothers and the responsibilities they are supposed to carry out . . . . 64 While some mothers may strive to fit this idealistic, selfless role, many mothers– –particularly those without support or strong resources––cannot ever achieve the perfection this idealistic construct sets out.65 live outside the prescribed code of conduct are labeled as “bad” mothers). In the context of working mothers separating from their children, Carol Sanger emphasizes: Today the mother has replaced the married woman as the focus of concern although there is now increasing confusion about exactly what makes her the enemy: is it gainful employment or its absence? . . . ([U]pper) middle-class, married women are often condemned for pursuing careers and separating from children when they do not have to, while poor, single mothers are faulted for their failure to earn incomes for their families. Carol Sanger, Separating from Children, 96 COLUM. L. REV. 375, 465 (1996). 63. Dorothy Roberts, The Unrealized Power of Mother, 5 COLUM. J. GENDER & L. 141, 147 (1995) (emphasis added). 64. SWIFT, supra note 3, at 104–05. See also Naomi Mezey & Cornelia T.L. Pillard, Against the New Maternalism, 18 MICH. J. GENDER & L. 229 (2012) (“The biggest challenge for sex equality in the 21st Century is to dismantle inequality between women and men’s family care responsibilities. American law has largely accomplished formal equality in parenting by doing away with explicit gender classifications, along with many of the assumptions that fostered them. In a dramatic change from the mid-20th Century, law relating to family, work, civic participation and their various intersections is now virtually all sex-neutral . . . . But the resultant legal reforms address only formal inequality; the challenge of lived inequality remains. Changes in legal norms must be embraced throughout the culture before their promise will be made real. The most influential and resistant obstacle to actualizing gender equality is the continuing cultural practice of romanticizing the mother as the best possible caretaker.”); Karen Swift, Contradictions in Child Welfare: Neglect and Responsibility, in WOMEN’S CARING: FEMINIST PERSPECTIVES ON SOCIAL WELFARE 166–167 (Carol Baines, Patricia Evans & Sheila Neysmith eds., 1998) (“Although often not explicitly expressed, discussions of neglect always imply that mothers are responsible). 65. JANE SWIGART, THE MYTH OF THE BAD MOTHER: THE EMOTIONAL REALITIES OF MOTHERING 25 (1991) (“Our society expects mothers to love and care for their children in an BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
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One concrete manifestation of implicit motherhood bias inherent in the Family Court system is the practice of initiating cases largely based on information that is gleaned from and about mothers. It is not that someone deliberately decided to bring cases against mothers of children in an explicitly biased way, but rather we do not always know who a child’s father is, though we almost always know who the mother is and can find her.66 Thus, the impact upon women litigants is reflected in the fact that the system is subtly biased toward having an over-representation of female litigants. The practice of having children in foster care listed under the biological mother’s name, instead of their own name or their father’s name, speaks volumes, and serves as only one of many concrete examples in which motherhood bias drives policy or policy leads to further implicit bias.67 In general, mothers are imagined as all-knowing and omnipotent. However, reality dictates that even amongst the most nurturing persons, a steep learning curve is involved in parenting, which is seen, for example, in caring for a firstborn, newborn infant––a Herculean task. This is especially true for young or teenage mothers and for those who are raising their children alone.68 By holding out such flawlessness––not as the ideal, but as the baseline norm––we set up to fail even those mothers who are “good” mothers.69 And we most certainly set up to fail those mothers who are deemed “good enough” mothers. In other words, even though the legal standard talks about parents needing to be fit or adequate, not perfect or ideal, the implicit biases we hold mean that, in reality, an “adequate” or “fit” parent is not actually good enough to qualify as a “good” unselfish way, yet notions of maternal love and good child-rearing practices often conflict with what is possible for a parent to feel and provide.”). 66. While outside the scope of this particular Article, it cannot be ignored that the same society that has overlooked and blamed mothers has also prejudiced fathers, particularly men of color. Arguably, these entrenched biases need to be eradicated at a much deeper level of race and class before we can truly address gender bias. It would also be helpful for the system to hold fathers accountable for their children’s welfare in the same way it holds mothers accountable for it. However, a full discussion of this issue is beyond the scope of this Article. Yet to avoid their complete invisibility as well, we also need a system that will view fathers as co-parents in court, not just as peripheral figures. 67. In New York City and Nevada for instance, every child protective case in the system is listed not by the child’s name or the father’s name, but the mother’s name. See Goodmark, supra note 3, at 614 (“The system is primarily mother-focused, for any number of reasons: because the identity of the mother is always known, because biological fathers are often nowhere to be found, because files are opened in the mother's name . . . .”). 68. See Laura Oren, Honor Thy Mother?: The Supreme Court’s Jurisprudence of Motherhood, 17 HASTINGS WOMEN’S L.J. 187, 225 (2006) (critiquing the Supreme Court’s reliance upon “generic assumptions that fail to reflect how complicated an undertaking it is to be a mother in this society, and how much that experience is shaped by all facets of a woman’s life, including her age, her class, her race, her marital status and familial resources, and the expectations of others and of herself”); Michelle Oberman, Judging Vanessa: Norm Setting and Deviance in the Law of Motherhood, 15 WM. & MARY J. WOMEN & L. 337, 348 (2009) (“The knowledge and skill demanded of mothers is assumed to be latent, ubiquitous, perhaps inborn with the species.”). 69. See generally Neal, supra note 43 (discussing myths about motherhood which result in mothers losing parental rights without proof that their children have been harmed). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 575 parent. Specifically, our Supreme Court has stated one need not be a model parent to be a fit parent.70 Yet, women grow up in a society where it is presumed “natural” to care, to nurture, to become a perfect, model mother.71 Even with laws in place to mute explicit gender and motherhood bias, the air of mother- blaming persists. This is especially apparent when we see trial courts or child welfare agencies blaming the parent who is being domestically abused, rather than the abuser.72 A deeper, more nuanced dialogue of litigants’ gender in Family Courts is necessary to confront the operation of implicit biases. The dialogue has commenced based upon the work of pioneering critical theorists,73 and needs to
70. Santosky v. Kramer, 455 U.S. 745, 753–54 (1982). 71. SWIFT, supra note 3, at 101 (1995) (explaining how in the family system, mothers are the parent who do most of the childcare because it is presumed that women have a natural instinct for caregiving); Carol T. Baines, Patricia M. Evans & Sheila M. Neysmith, Women’s Caring: Work Expanding, State Contracting, in WOMEN’S CARING: FEMINIST PERSPECTIVES ON SOCIAL WELFARE 9 (Carol Baines, Patricia Evans & Sheila Neysmith eds., 1998) (explaining how caregiving is not an inherent trait of all women, but has nonetheless been conflated as a part of a woman’s identity); JANE SWIGART, THE MYTH OF THE BAD MOTHER: THE EMOTIONAL REALITIES OF MOTHERING 10 (1991) (“Our society assumes that nurturing the young is an easy task that comes naturally to women but not to men. We cling to an image of mothers as born nurturers who do not want for themselves, only for their children.”). 72. For example, in a recent Family Court case in New York, the initial trial court ruling and child welfare agency actions were criticized because they placed such unreasonable demands upon a mother facing violence at the hands of the father of her child. In re David G. (Blossom B.), 909 N.Y.S.2d 891 (N.Y. Fam. Ct. 2010). The dynamics of domestic and family violence intersect with the topic of gender bias enormously––and the topic, while not the focus of this Article, is rich with further examples of implicit motherhood bias. Illustratively, the landmark New York class action case of Nicholson v. Scoppetta called into question the practice of child welfare agency policies, which were explicitly biased against or harmful toward survivors of domestic violence. 820 N.E.2d 840 (N.Y. 2004). This case cast a light on the structural biases within the New York City child welfare agency as it related to mothers, including those mothers who were survivors of domestic violence. Id. at 842–43. Mothers were routinely penalized and charged with child neglect based solely on their status as battered mothers. Id. The New York Court of Appeals ultimately held that, while on the rare occasion the emotional injury resulting from witnessing domestic violence can satisfy the definition of “neglected child” and require emergency removal without a court order, the mere witnessing of violence, by itself, does not rise to the level of neglect automatically per se necessitating emergency removal. Id. at 854–55. 73. See, e.g., Aiken & Murphy, supra note 40; Appell, supra note 4; Chodorow & Contratto, supra note 40, at 192–96 (stating that psychoanalytic theory posits that mothers are all-powerful because of the influence they have over their children and then are appropriately blamed if their children have psychological problems; however, some feminist writers have concluded that women are powerless in raising their children because of the role of patriarchy in governing their lives); Martha L. Fineman, Images of Mothers in Poverty Discourses, 1991 DUKE L.J. 274, 289–90. (“[M]otherhood has always been, and continues to be, a colonized concept—an event physically practiced and experienced by women, but occupied and defined, given content and value, by the core concepts of patriarchal ideology.”); Goodmark, supra note 3; Goodmark, Telling Stories, Saving Lives, supra note 40; Murphy, supra note 3; Barbara Katz Rothman, Motherhood: Beyond Patriarchy, 13 NOVA L. REV. 481 (1989); Shalleck, supra note 40; Sinden, supra note 4; Spinak, supra note 40; Neal, supra note 43, at 69 (“We have seen, then, that a mother's being of color, BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
576 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 continue. How women litigants in Family Courts are perceived and what they perceive is a worthy conversation to continue into the next wave. As many have argued, mothers exist in infinite forms and cannot be distilled down to one single model of essential motherhood.74 There are “diverse, often submerged, constructions of mothering that have coexisted alongside [the] dominant model.”75 How the court system perceives mothers is critical to understanding how the system treats mothers when handling individual cases. Yet, it is equally important, arguably more important, to think about how litigants perceive the court system. Because if litigants perceive bias in the courtroom––regardless of whether it truly exists—they may very well not access services and resources available through the child welfare and court systems, even when they need them.76 There are myriad reasons to consider all litigants’ perspectives in any courtroom. Yet, the layered obstacles that women and mothers face in Family Court are particularly compelling. For example, as this Article has discussed, there are larger, more global societal biases about women and mothers, and many women face multiple layers of bias because they are not just female, but also poor women or women of color, precisely those mothers who are
being poor, and not abiding by hierarchical precepts of parenting may end her relationship with her child . . . . As a result, the perception that a mother has placed her own needs or desires before those of her child may also place her relationship with her child at risk, even though the child may be at least an indirect beneficiary of the acts.”). 74. See, e.g., Ross, supra note 3, at 187–88. 75. Evelyn Nakano Glenn, Social Constructions of Mothering: A Thematic Overview, in MOTHERING: IDEOLOGY, EXPERIENCE, AND AGENCY 1, 3–4 (Evelyn Nakano Glenn, Grace Chang & Linda Rennie Forcey eds., 1994). See also Carol T. Baines, Patricia M. Evans & Sheila M. Neysmith, Women’s Caring: Work Expanding, State Contracting, in WOMEN’S CARING: FEMINIST PERSPECTIVES ON SOCIAL WELFARE 16 (Carol Baines, Patricia Evans & Sheila Neysmith eds., 1998) (explaining that the problems of motherhood do not confront all women in the same way, and that it is essential to recognize this diversity in forming solutions to problems). 76. Tracey L. Meares, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 OHIO ST. J. CRIM. L. 105, 108 (2005) [hereinafter Meares, Everything Old Is New Again] (citing Tracey L. Meares, Norms, Legitimacy, and Law Enforcement, 79 OR. L. REV. 391 (2000) [hereinafter Meares, Norms, Legitimacy, and Law Enforcement]). See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988) [hereinafter LIND & TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE]; Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups, 25 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 115, 140–41 (1992) [hereinafter Tyler & Lind, A Relational Model of Authority in Groups]; Breger, supra note 55, at 21; COMMONWEALTH OF MASSACHUSETTS, supra note 28; JAMES PTACEK, BATTERED WOMEN IN THE COURTROOM: THE POWER OF JUDICIAL RESPONSES 150–51 (1999) (“Three dimensions of fear have been presented as important to women’s court appearances—fear of the defendant, intimidation produced by the institutional setting, and fear of being treated unjustly by the judge. . . . [I]n some cases judges’ responses amounted to a secondary traumatization.”). See also Nelson Mandela, Black Man in a White Court: Nelson Mandela’s First Court Statement - 1962, AFRICAN NATIONAL CONGRESS (last visited Nov. 14, 2012), http://www.anc.org.za/show.php?id=3763 (“Finally, I need only to say that the courts have said that the possibility of bias and not actual bias is all that needs be proved to ground an application of this nature. In this application I have merely referred to certain objective facts, from which I submit that the possibility be inferred that I will not receive a fair and proper trial.”). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 577 disproportionately brought into the Family Court system.77 In other words, stereotypes about mothers can be enduring and harmful, yet there are even more stereotypes one can conjure in one’s mind when the so-called “adjective” is added before the word mother, such as the “single” mother, the “young” mother, the “Black” mother.78 These issues will be explored in more depth after the narrative of the T.C. case is addressed. Furthermore, any gender bias notwithstanding, a particular female litigant may construe bias from a court, child welfare agency, or lawyer, even if it is not consciously intended. This sense that bias exists is especially probable when a female litigant recognizes the power imbalance between herself and those who work in “the system” and are deciding the ultimate fate of her family and whether her family will be able to stay together.79 Those in power can often seem even more omnipotent when one considers the emblematic disparities in education, socio-economic status, and race between the parties in Family Court and the bench and the bar.80 As this author has noted on a related topic: At times, a litigant may perceive a disparity or divide between his or her own value system or identity and that of the ‘regular players’ in the court system: such as the lawyers, the clerks, the judges, the court officers, the caseworkers. Studies in psychology and procedural justice show that a litigant who does not perceive justice in the courtroom may not access the family court system in the future . . . even when she might really need to do so.81 Thus, it is crucial in child welfare proceedings to recognize the implicit biases that may be held by the players in the system. For these biases may affect not only the way a caseworker,82 a lawyer, or a judge perceives a particular
77. See generally Diane L. Redleaf, Protecting Mothers Against Gender-Plus Bias: Part I, Child. Rts. Litig. (Oct. 25, 2011), http://apps.americanbar.org/litigation/committees/childrights/ content/articles/fall2011-protecting-mothers-gender-plus-bias.html. 78. Ross, supra note 3, at 187. 79. For example, a litigant may recognize the power imbalance between herself and judges, lawyers, and agency caseworkers. See Breger, supra note 55, at 67 (noting that the same institutional players are involved in each stage of child protective cases, often define and establish norms and “insider” rules of courthouse culture, are ultimately responsible for determining the outcome of critical and sensitive family matters and, therefore, wield tremendous power over parents and children brought before court); Murphy, supra note 3, at 702 (explaining that trial court decisions requiring mothers to conform to outmoded stereotypes “have an impact on the context in which other mothers in the jurisdiction negotiate and bargain on custody issues.”); Santosky, 455 U.S. at 763 (emphasizing that parents subject to termination proceedings are often poor, uneducated, or members of minority groups). 80. Breger, supra note 55; Hill, supra note 5; Roberts, supra note 40; Sinden, supra note 4. 81. Breger, supra note 55, at 24. 82. Murphy, supra note 3, at 706–07 (explaining that case workers in child welfare proceedings often have little or no experience and “make largely discretionary judgments about bad mothering and their underlying assumptions”); Diane L. Redleaf, Protecting Mothers Against Gender-Plus Bias: Part III, Child. Rts. Litig. (July 9, 2012), http://apps.americanbar.org/litigation/ BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
578 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 parent, but also how that parent perceives those caseworkers, lawyers, and judges who are ultimately deciding her fate. As Professor Blake Morant has stated: The public’s perception that decision making is biased also looms as a serious challenge for the judiciary. Virginia’s study documents several areas of perceived bias or, at the least, a belief that judicial decision makers are insensitive to the issues of gender. Both the manifestation of unconscious or subtle bias and the perception that it exists potentially compromise judicial integrity and undermine public confidence in the judicial system. Few would argue that overtly biased behavior demands affirmative efforts that sanction the perpetrator and discourage future, similar conduct. But if true judicial objectivity remains a universal goal, overt behavior cannot operate as the sole trigger for the implementation of bias reduction measures.83 To another degree, as noted above, litigants who perceive bias in the courtroom may not be as likely to seek court protection in the future.84 In the context of family law, the mother who is charged with child neglect and feels the system is biased against her would likely be hesitant to return to Family Court to request a subsequent order of protection from domestic violence, even in a dire situation.85 This tension is illustrated in the case study of T.C.: T.C. had previously been investigated by child welfare authorities regarding her son. Perhaps this fact made her less inclined to seek out court or caseworker assistance when she subsequently faced issues with her daughter.86
committees/childrights/content/articles/summer2012-0712-protecting-mothers-gender-plus- bias.html. 83. Morant, supra note 28, at 1077–78. 84. Meares, Everything Old Is New Again, supra note 76 (citing Meares, Norms, Legitimacy, and Law Enforcement, supra note 76). See LIND & TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE, supra note 76; Tyler & Lind, A Relational Model of Authority in Groups, supra note 76, at 140–41; Breger, supra note 55, at 21; Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 OHIO ST. L. J. 1479, 1505-06 (2004); Jane M. Spinak, A Conversation About Problem-Solving Courts: Take 2, 10 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 113, 131 (2010). See also Mandela, supra note 76. 85. See LIND & TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE, supra note 76, at 11 (describing that where litigants perceive that a decision is fair, they are more likely to react favorably to it); Tyler & Lind, A Relational Model of Authority in Groups, supra note 76, at 140– 41; Breger, supra note 55, at 21. 86. See Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 OHIO ST. L. J. 1479, 1572 (2004) (explaining that where litigants experience a fair proceeding, they are more likely to find the judgment legitimate and abide by it in the context of problem-solving courts); Spinak, supra note 84, at 131; Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1, 54 (1990) (describing that gender and racial bias create obstructions that intimidate women and minorities, especially minority women, from fully participating in the justice system); Oberman, supra note 68, at 356 (explaining the hesitance of one mother to seek medical attention for her injured daughter due to beliefs, based on experience, that the State would interfere and take her children away). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 579
IV. IMPLICIT MOTHERHOOD BIAS IN ACTION: THE STORY OF T.C. One way to demonstrate concretely the concept of implicit gender and motherhood bias in the context of child welfare proceedings is to tell the story of a mother facing such bias. I utilize the narrative of T.C. as a vehicle to delve more deeply into what it means to be a female and a mother in child welfare proceedings in Family Court.87 At every important juncture in her case, implicit gender bias was at work. T.C.’s story highlights how we blame mothers instead of helping them, hold them to a standard that is greater than what the law requires, do not consider the broader contexts in which women must parent, and fail to consider the impact that this has on female litigants who may ultimately depend upon the family court system in the future. This narrative is not just a story about T.C. and her family, but is also a microcosm of what is being replicated across the nation as we hold mothers to unrealistically high standards of parenting. In 1998, T.C. was a twenty-one year old, African-American, unmarried woman living in Brooklyn, New York. She was earning public assistance to support her two young children, a son and a newborn daughter. Extended family lived relatively nearby. The father of T.C.’s children had been in and out of jail for numerous drug convictions, and in fact was incarcerated when his daughter was born in February 1998. A year earlier, when T.C. had left her apartment for ten minutes to buy cigarettes, she left her son home alone. T.C. was reported through a hotline for child abuse and neglect,88 and Child Protective Services came to investigate. Unfortunately, at that time, T.C. was no stranger to the child welfare system, as she herself had grown up as a foster child in the system.89 So, when child welfare authorities were called to her home, she knew all too well what the child welfare system entailed and its potential to remove her children and to terminate her parental rights. This context frames the events that occurred in 1998, when T.C. gave birth to a baby girl. According to news stories and relatives, T.C. was extraordinarily
87. The author was appointed to represent T.C.’s son in the derivative neglect proceedings brought against her. The detail and information contained in this account of the case are based upon the author’s experience representing the child. The case file, which is sealed, is on file with the author. 88. Nina Bernstein, New York Faults Hospital for Denying Checkup to Baby Who Starved, N.Y. TIMES, Oct. 26, 1998, http://www.nytimes.com/1998/10/26/nyregion/new-york-faults- hospital-for-denying-checkup-to-baby-who-starved.html. 89. T.C. was the eldest of eleven siblings, all of whom were removed from T.C’s mother because of her mother’s crack addiction. T.C.’s mother ultimately lost her parental rights based upon her addiction. The children grew up in foster homes and relative’s homes scattered around New York City. Telephone interview with Karen Burstein, private attorney, former N.Y.C. Family Court judge, and former N.Y. St. Senator (July 21, 2011). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
580 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 loving and affectionate with her daughter.90 T.C. began breastfeeding her daughter because the hospital instructed her to do so when the baby refused the bottle.91 However, when her daughter was not gaining the kind of weight that she remembered her son had been gaining at this age, T.C. became worried. Her relatives also noticed that the baby always seemed hungry and seemed lightweight, but no one ever suspected the baby was starving.92 T.C. took her newborn baby to her first scheduled general wellness check- up appointment at Brooklyn Methodist Hospital in February of 1998.93 The hospital, however, turned T.C. and her daughter away for not having an adequate co-pay of $25 or a proper Medicaid card.94 Soon thereafter, in March 1998, T.C. awoke on the couch and began shrieking, as she found her baby daughter dead.95 The baby was less than six weeks old. Before having time to process or grieve her child’s death, T.C. was charged with the manslaughter of her daughter in May 1998.96 Shortly thereafter, T.C. was additionally charged with the derivative neglect of her older two-year-old son (“D.C.”) in Family Court. Presumably, based on this timing, the neglect charges were in response to the criminal charges being filed and not due to any concern for the immediate safety of the child at the time his sister died in March 1998. The derivative neglect petition was brought against only T.C.––and not the father––on behalf of her son.97 Based upon the derivative neglect petition, D.C. was removed from his mother’s home and placed into New York City’s foster care system.98 He remained in stranger foster care for four months.99 While T.C.’s son languished in foster care, the state investigated her daughter’s death. An autopsy showed the baby girl had some milk in her stomach, but the cause of death was still deemed malnutrition.100 T.C. was only allowed to see her son in a supervised agency setting.101 In fact, T.C. was only permitted to see her son every other week, for one or two hours of visitation at a time, for the full four months.102 For the other
90. See, e.g., Rachel L. Swarns, Baby Starves, And Mother Is Accused Of Homicide, N.Y. TIMES, May 29, 1998, http://www.nytimes.com/1998/05/29/nyregion/baby-starves-and-mother-is- accused-of-homicide.html. 91. Telephone interview with Karen Burstein, private attorney, former N.Y.C. Family Court judge, and former N.Y. St. Senator (July 21, 2011). 92. See, e.g., Swarns, supra note 90. 93. Id.; Bernstein, supra note 88. 94. Bernstein, supra note 88. 95. Id. 96. Id. 97. See supra note 87. 98. Id. 99. Id. 100. Notice of Death, N.Y.C. Med. Exam’r, Report No. 9805951 (on file with author). 101. See supra note 87. 102. Id. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 581 approximately 668 hours per month from May to September 1998, mother and son were apart. The papers filed on behalf of T.C. in Family Court detailed the reasons why the Brooklyn District Attorney ultimately failed to prosecute T.C. concurrently in Criminal Court. The grand jury had failed to indict. A medical expert, testifying before the grand jury, had explained that many young mothers are not taught how to breastfeed, and as a result, their babies fail to thrive. When, as here, the weight loss is seven ounces over a period of five to six weeks, the urgency of the problem might not be as clear to a mother. Another reason why the D.A. apparently failed to move forward criminally was that T.C. had sought medical help for her daughter, but was turned away from the hospital for lack of a Medicaid card or the requisite non-Medicaid fee. The Family Court papers clarify that, in fact, T.C. did have a card, but the clinic would not accept it.103 After the removal of her son, T.C. moved from home to home, relative to relative, in a quest for stability. When a family member with whom she was staying assaulted her, she went to reside in a confidential domestic violence shelter in New York City. It was then that T.C. met Congresswoman Ronnie Eldridge who later introduced her to her new defense lawyer.104 Her new lawyer, former Judge Karen Burstein of Manhattan, demanded an immediate hearing for the return of T.C.’s son D.C. in Brooklyn Family Court in September 1998.105 It was at that point that I was appointed the Attorney for the Child for D.C. 106 Though the criminal proceedings against T.C. had been dismissed, the civil derivative neglect proceedings continued. As explained above, derivative neglect involves the other children in the home as subjects of child protective proceedings, even when these other children themselves have not been directly harmed or injured.107 D.C., T.C.’s son, was being removed because of the death of his baby sister under the theory that his sister’s death was evidence of T.C.’s fundamental parenting defects. Yet, the child welfare agency offered no services to assist her in counseling or parenting. T.C.’s Family Court attorney ultimately presented a sympathetic and fuller portrayal of what really happened—how T.C. was turned away from every resource set out to help young, poor mothers, and how the system was set up to have her inevitably fail.108 It was a system ready to react and respond only after
103. Id. 104. Id. 105. Id. 106. At the time in New York, attorneys for children were named “law guardians,” a title which has since been abandoned in favor of the more accurate term “attorney for the child.” At that time, lawyers were appointed by the courts for any child in an abuse or neglect case and were serviced through The Legal Aid Society, Juvenile Rights Division. For a detailed discussion of the nomenclature and the spirit of the New York system, as well as best practices nationally and internationally, see Breger, supra note 55, at 57. 107. See discussion infra Part III.A. 108. See supra note 87. In fact, T.C. had been deemed an “adolescent’ because she was under 21-years-old; however, it is unclear whether an additional social worker was assigned as required. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
582 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 a parent erred. We negotiated with the child welfare agency attorney and, in the end, Judge Lee Hand Elkins released the child from foster care and let the child go home to a family member.109 The child protective derivative neglect case was later dismissed in its entirety—eighteen months later—a result that shows how judges challenging implicit biases about motherhood in a particular case can make a world of difference for a particular family.110 Judge Clare T. Pearce presided over the derivative neglect case that was ultimately dismissed. She directly addressed the fact that the agency was under a misconception that it was “natural” for a woman to instinctively know how to breastfeed a baby.111 Rather, the Judge explained, it is a learned skill that needs to be taught and taught properly. It is also a fairly intensive and complicated process for a mother to know if her baby is nourished enough, requiring frequent doctor’s visits, weight checking, and urine testing.112 Furthermore, as the Judge expounded, in the neighborhood and the world where T.C. lived, breastfeeding was quite uncommon.113 The Judge argued that the real people to blame here
Telephone interview with Karen Burstein, private attorney, former N.Y.C. Family Court judge, and former N.Y. St. Senator (July 21, 2011). 109. See supra note 87. 110. See id. 111. Telephone interview with Karen Burstein, private attorney, former N.Y.C. Family Court judge, and former N.Y. St. Senator (July 21, 2011). 112. As Nina Bernstein explains in another breastfeeding case, “[a]mong the hundreds of letters, postcards and E-mail messages the judge and prosecutors in the case received . . . were many from mothers who said that they, too, had almost let a child starve to death while breast- feeding with the best of intentions. Lactation experts testified at the trial that nursing mothers who see a baby every day may misperceive even extreme weight loss, until a pediatrician weighs the baby.” Nina Bernstein, Mother Convicted in Infant’s Starvation Death Gets 5 Years’ Probation, N.Y. TIMES, Sept. 9, 1999, at B3. See also Rachel L. Swarns, Baby Starves, And Mother Is Accused Of Homicide, N.Y. TIMES, May 29, 1998, http://www.nytimes.com/1998/05/29/nyregion/baby- starves-and-mother-is-accused-of-homicide.html (“Without careful and regular assessments of the weight of their babies, mothers who breast-feed often have trouble determining how much nourishment their infants are getting, said Dr. Elaine Moustafellos, who works in the pediatrics department at New York Hospital-Cornell Medical Center."). See also Is My Baby Getting Enough Milk?, LA LECHE LEAGUE INTERNATIONAL, http://www.lalecheleague.org/nb/nbsepoct08p44.html (last visited November 17, 2012) (explaining the complicated process of measuring a baby and its urine to determine breastfeeding nutrition.) 113. T.C. had not breastfed her son. In fact, T.C. did not voluntarily choose to breastfeed, but was advised to do so by the birthing hospital. As lawyer Karen Burstein explains, “T.C. was not a white middle-class mother hailing the virtues of breastfeeding and boycotting Nestle baby formula.” Telephone interview with Karen Burstein, private attorney, former N.Y.C. Family Court judge, and former N.Y. St. Senator (July 21, 2011). When speaking about breastfeeding, we need to acknowledge the racial component involved; historically, it was often mostly poor, non-white mothers who served as wet nurses, breastfeeding other people’s babies. The effect of this history on the prevalence of breastfeeding in the African American community must be recognized. (I thank my colleague Donna Young for this insight). See, e.g., Barbara L. Philipp & Sheina Jean- Marie, African American Women and Breastfeeding, JOINT CTR. FOR POL. AND ECON. STUD. HEALTH POL’Y INST. (2007), http://www.jointcenter.org/hpi/sites/all/files/IM-Breastfeeding.pdf; Linda C. Fentiman, Marketing Mothers’ Milk: The Commodification of Breastfeeding and the New Markets for Breast Milk and Infant Formula, 10 NEV. L.J. 29, 51–61 (2009); Norma Juliet Wikler, BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 583 were those from the child protective agency, who never intervened until it was too late, and the hospital itself, which turned T.C. away when she sought out help because she lacked money.114 One use of this narrative is to deconstruct the various points of implicit gender and motherhood bias in T.C.’s case. How might this narrative have played out differently if we could reconstruct it in a truly implicit-bias-free world? In the book, Shattered Bonds: The Color of Child Welfare, Professor Dorothy Roberts features the story of T.C. to demonstrate the intersectionality115 of race, gender, class, and motherhood in the child welfare system.116 She frames the story as another example of the failure of the child welfare system and how it treats mothers, particularly Black mothers embroiled in “the system.” As Roberts so aptly notes, “The only mechanism set up for checking the baby’s progress was an accusatory system that, in effect, required [T.C.] to confess to mistreating her child.”117 The story of T.C. raises myriad issues, most of which cannot possibly be
Society’s Response to the New Reproductive Technologies: The Feminist Perspectives, 59 S. CAL. L. REV. 1043, 1048 (1986) (“In the nineteenth century, poor and mostly non-white women acted as wet nurses, selling their milk to mothers of the upper classes, sometimes depriving their own children in the process.”); Kelli Lane, Grounding Mother and Child in Their Intrinsic Relational Unit: An Analysis of Motherhood and the Parent Child Relationship Within the Child Welfare System, 25 WOMEN’S RTS. REP. 145, 148 (2004). 114. T.C. ultimately sued the hospital for the wrongful death of her daughter, settling for a monetary judgment of $150,000. Thirteen years later, in 2011, she prevailed in a civil case against the City of New York for wrongful arrest and charging. T.C. was awarded two million dollars in damages. Cara Buckley, 13 Years Later, a $2 Million Award, N.Y. TIMES, Apr. 23, 2011, http://www.nytimes.com/2011/04/23/nyregion/2-million-for-mother-wrongfully-charged-in-babys- death.html. In some small measure, T.C. witnessed justice in these later lawsuits, arguably empowered and validated by another court system saying that she had been wrongfully treated. 115. Kimberlé Crenshaw used the concept of “intersectionality” to emphasize the various ways in which race and gender interact. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1244–45 (1991). She explains “intersectionality” as a “provisional concept linking contemporary politics with postmodern theory.” Id. at 1244 n.9 (mapping the intersections of race and gender to suggest a methodology to disrupt tendencies to see race and gender as “exclusive” or “separable,” and noting that the concept of “intersectionality” can and should be expanded “by factoring in issues such as class, sexual orientation, age, and color”). See also Kimberlé Crenshaw, Race, Gender and Violence Against Women: Convergences, Divergences and Other Black Feminist Conundrums, in FAMILY MATTERS: READINGS ON FAMILY LIVES AND THE LAW 230, 230–32 (Martha Minow ed., 1993) (explaining how the intersectionality of race, class, gender, and other social characteristics may particularly constrain poor minority women from seeking help to stop ongoing domestic violence against them). 116. ROBERTS, supra note 5 (“Poverty appears to be a causal factor in T.C.’s alleged neglect of her child.”). See also Dorothy Roberts, The Ethics of Punishing Indigent Parents, Northwestern University School of Law Working Paper 2–4 (May 1998), http://www.ipr.northwestern.edu/publications/papers/indigentparents.pdf (asserting “[m]ost of the parents who lose custody of their children in civil child welfare proceedings and who are convicted of criminal child neglect and abuse are poor” and that stereotypes about black mothers make them more likely to be found at fault when harm befalls their children). 117. ROBERTS, supra note 5, at 6. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
584 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 addressed in one article. Indeed, the issues arising in this narrative could fill volumes. In order to deconstruct the narrative in a meaningful way, I focus very specifically on one narrow aspect of this complex and multifaceted story. I focus in on the types of implicit biases that T.C. faced along the journey, including implicit biases about women, mothers, young mothers, single mothers, Black mothers, so-called welfare mothers, and all mothers in between. And when we look at those biases through the lens of motherhood, it offers some insight into how these biases about mothers play out in courtrooms, through governmental agencies, and in larger society. In examining this story, like so many others, we cannot ignore the reality that gender, class, and race are inextricably linked. While I am attempting to focus on gender and motherhood bias in this particular article, I am mindful that such biases cannot be successfully decontextualized;118 T.C.’s story is also about the intersectionality of racism, paternalism, and sexism in the context of Black women in America.119 These biases are too interconnected and subsumed into how we view gender and motherhood to be easily parsed.120 The topic of these intersections has been masterfully explored in feminist and critical race theory literature.121
118. Patricia Hill Collins, Shifting the Center: Race, Class, and Feminist Theorizing About Motherhood, in REPRESENTATIONS OF MOTHERHOOD 56 (Donna Bassin, Margaret Honey & Meryle Mahrer Kaplan eds., 1994) (“For Native American, African-American, Hispanic, and Asian- American women, motherhood cannot be analyzed in isolation from its context.”); Spinak, supra note 40, at 2074 (citing Roberts, supra note 40, at 225) (“Dorothy Roberts has . . . established that issues of motherhood cannot be considered outside the context of racism.”). 119. “Intersectionality tells us that racism and sexism are interlocking forms of oppression that work together to reinforce a white patriarchal social order. . . . Black females are constructed as oversexed and overly fertile; Black motherhood is abnormal and blameworthy for social problems such as juvenile delinquency and poverty.” Verna L. Williams, The First (Black) Lady, 86 DENV. U. L. REV. 833, 839–40 (2009). Williams argues that Michelle Obama is exemplary for her defiance of racial, gender, and class stereotypes of “black womanhood” and “black motherhood” upon becoming the First Lady. Id. at 845. “When we consider the First Lady . . . it becomes clear that this role is heavily gendered and raced . . . it was by definition not open to a Black woman like Michelle Obama.” Id. at 839. Williams further distinguishes between “white femininity” and “black femininity,” the former being a “gold standard that other women must meet.” Id. at 835. 120. See Roberts, supra note 63, at 145–46 (explaining that black children are not valued similarly to white children, that such “devaluation of Black-childbearing contrasts sharply with the historic promotion of white motherhood that serves the national good by producing while children,” and that although these policies are also patriarchal, they are nonetheless “fundamentally racist”). 121. See Linda L. Ammons, Mules, Madonnas, Babies, Bathwater, Racial Imagery and Stereotypes: The African-American Woman and the Battered Women Syndrome, 1995 WIS. L. REV 1003, 1049, 1048–56 (describing that “[t]he ‘looking glass’ experience of black women is one of being trapped between sub- and super-human imagery and expectations”); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365 (1991) (explaining that race and gender interact to form unique oppression for Black women); Kimberle’ Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 152–60 (providing examples of how “theory emanating from a white context obscures the multidimensionality of Black women's lives”); Angela P. Harris, Race and Essentialism in BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 585
The initial reason why I share the story of T.C. is to focus upon the progress that the bench and the bar made in this particular case, even though there were initially many implicit biases about motherhood at work. Within the legal system, T.C. ultimately saw justice on a number of levels. On the one hand, even though it seems as though stereotypes of motherhood brought T.C. into the child welfare system, we actually were able to see progress in the result of the case, albeit almost two long years later, twice the lifetime of then four-year-old D.C. The second reason I share the story of T.C. is to demonstrate the need for even more progress in how our child protective system is structured. As Professor Roberts notes, the system operates only when a crisis strikes, instead of offering family support beforehand.122 While quick to blame a parent when she errs, the agency is often slow to reunite the family. We need to ask how the players in the child welfare system can work to prevent tragedy, instead of punishing a family once it is too late. Perhaps, if we, as a society, took the first step by reshaping our views about motherhood and gender, the system would eventually follow. If we started from the premise that it is incumbent upon the players in the system to project openness and availability for mothers like T.C., so that they will not fear being misjudged, stereotyped, or seen as uncaring, what impact would that have on individual mothers and families? If we, as a society, continue the fight against presumptions about women and girls, about mothers, about how they are seen and perceived, perhaps it would eventually follow that those in the governmental and court systems would see and perceive those women differently. We could then more meaningfully critique why the T.C. case entered the system in the first place, and examine more globally whether we should create a more preventative culture, rather than a punitive one. The third reason for selecting the T.C. case as an example of implicit gender or motherhood bias stems from the fact that breastfeeding is a uniquely female parenting task at the outset. There are many parenting skills that are gender- neutral, yet society tends to imagine that mothers are to be responsible for carrying them all out; when men help, some view this as an added benefit to the family. Ultimately, however, nourishing and feeding a child is a basic gender- neutral parenting skill, which should involve any or all caretakers, regardless of gender. Thus, I raise the story of T.C. to note how absent the blaming of the other parent is in the face of the punitive and harsh blaming and demonizing of the
Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (1990) (demanding that feminist legal theory must account for race differences); Marlee Kline, Race, Racism, and Feminist Legal Theory, 12 HARV. WOMEN’S L.J. 115, 124–44 (1989) (examining three critiques written by women of color that analyze race essentialism in feminist legal scholarship); Roberts, supra note 40; Spinak, supra note 40, at 2074. 122. ROBERTS at 5. See also Carol T. Baines, Patricia M. Evans & Sheila M. Neysmith, Women’s Caring: Work Expanding, State Contracting, in WOMEN’S CARING: FEMINIST PERSPECTIVES ON SOCIAL WELFARE 14–15 (Carol Baines, Patricia Evans & Sheila Neysmith eds., 1998) (“Child welfare services are focused on women’s failure to care rather than the provision of services that enhance the capacity of families to provide care.”). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
586 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 primary-caretaker mother. The father (whom I will refer to as “Mr. T.C.” for the sake of clarity and anonymity) was nowhere in the narrative of T.C.’s case. He was never vilified, unlike the mother of the child. It is undisputed that Mr. T.C. was incarcerated both during the birth and the death of his daughter, and thus in this particular case, it is clear why he was not more involved. Yet, I wish to utilize this case as a springboard to talk more about how Mr. T.C. was never charged with neglect nor prosecuted criminally while T.C. was charged in both forums.123 In talking about T.C., I reiterate that this narrative is also about patriarchy and racism more broadly––in that both mothers and fathers reflect our patriarchal society by accepting the role of the father as patriarch.124 T.C.’s story is also not just about poverty, or just about being turned away at the doctor’s doors. Her story tells us the story of how we, as a society, see mothers and expect the instinctual, perfect, selfless mother—anything less than this ideal is bad, arguably criminal or neglectful. Why was T.C. so reticent to seek help? Why was our legal system so quick to find T.C. when it was too late? Where was “the system” when T.C. needed help? Was the State thinking about her need for help when it labeled her a “bad mother” without ever questioning the father? There are boundless implicit biases about fathers as well, and certainly many of those biases and stereotypes played a role in how T.C. was perceived by the court system and the child welfare system. For example, when we think about where the father is in any particular narrative of a young, poor, unmarried mother of color, do these same implicit biases in society assume the father is of course incarcerated or otherwise absent? While this Article cannot adequately address the burdensome stereotypes and biases fathers face, particularly young, incarcerated fathers of color, it is worth noting how the various biases build upon and inform each other. Here, however, I would like to focus upon the biases
123. In theory, the father’s presence could have helped to avoid some of the tragedy and alleviate the burden that fell exclusively on T.C.’s shoulders. There are inherent, endemic issues regarding absentee fathers and the court system’s treatment of such fathers, yet these issues are outside the scope of this particular Article. 124. Professor Joan Meier addresses Professor Elizabeth Schneider’s work by saying: “Noting that ‘motherhood is critical to women's subordination,’ she points out that mothers are ‘likely to be held primarily or even exclusively responsible for any harm [to a child]. . . . Male violence in the family, even when it is extreme and lethal, seems like a natural extension of male patriarchal authority in general; women's failure to mother makes them monsters.’" Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 AM. U. J. GENDER SOC. POL’Y & L. 657, 658 (2003) (alterations in original) (quoting ELIZABETH M. SCHNEIDER, BATTERED WOMEN & FEMINIST LAWMAKING 149 (2000)). The invisibility in our society of both male violence and women's mothering makes fair judgments about women––and men––as parents difficult at best. While acknowledging that mothers in some cases do deserve to be held responsible for harm to children, Schneider nevertheless concludes: “[i]t is difficult to determine the contours of maternal responsibility in a culture that blames mothers for all problems relating to children, gives mothers so little material and social support, and absolves fathers of all responsibility.” SCHNEIDER, BATTERED WOMEN & FEMINIST LAWMAKING, at 178. I thank those of my colleagues who have shared their thoughts with me on this issue, including Professors James Gathii, Jane Spinak, and Rob Heverly. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 587 against T.C. that were heightened by the lack of focus on the father in her cases. It should also be noted that, at times, the lack of a father is also blamed on the mother, either through the single mother’s so-called “ineptness” as a mother or woman or through her so-called “vindictiveness” in keeping the father away, as Professor Carol Boyd notes in her aptly named work “Demonizing Mothers.”125 There are many more cases like T.C.’s (in fact one was occurring in the Bronx at the precise time of T.C.’s case)126 where fathers are not being prosecuted or charged, or in any other way held accountable, while mothers are blamed, vilified, and charged with child abuse, and often criminally prosecuted as well.
V. REFLECTING ABOUT REFORM: WHERE DO WE VENTURE FROM HERE? How might we think about reducing the implicit gender biases in the family justice system demonstrated by the T.C. example and others? I offer a couple modest proposals: 1) We need to educate the players in the system (e.g., judges, lawyers, child welfare caseworkers, and mental health professionals) about how we all hold implicit biases, even when we are not aware of them, and how to recognize and identify these biases; 2) From there, those within the system need to challenge themselves to understand how litigants are envisaging those in the child welfare and court systems. While doing so, those in the system (and in larger society) need to acknowledge our own implicit biases about what the law and our society has come to expect of mothers as well as how we judge (or do not judge) mothers. Outside of that, the burden cannot rest solely on the mother’s shoulders––blaming and demonizing her if she falters, after we have offered her no institutional support as a society by way of preventative services or meaningful outlets to seek help. We need to discard any unrealistic expectations of mothers, acknowledge our own implicit biases, and recognize the frailties, the fullness, and the complexity of motherhood. Education and awareness have been touted as potential solutions for implicit biases operating in the courtroom and court decisions. For example, as Professor Blake Morant outlines: “Virginia’s study acknowledges education as a critical component of its gender bias reduction strategy, stating that ‘[t]he most effective means to eliminate gender bias in the court system is continual education of
125. Susan B. Boyd, Demonizing Mothers: Fathers’ Rights Discourses, in Child Custody Law Reform Processes, 6 J. ASS’N FOR RES. ON MOTHERING 52, 53–59 (2004). 126. See, e.g., Karen Houppert, Nursed to Death, SALON, www.salon.com/mwt/feature/1999/05/21/nursing (last viewed Oct. 11, 2012) (Tabitha Walrond's seven-week-old infant died of starvation, around the same time of T.C.’s baby, when Walrond had attempted to breastfeed her baby). This was only a criminal case because there were no other children in the home, and thus a child protective agency would not have a cause of action. Id. In the Walrond case, the father raised concerns about the weight of his son, but was never charged criminally. Id. See also Collins, supra note 118 (daughter died because mother could not afford medical care). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
588 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 lawyers, judges, and court personnel.’”127 Fortunately, studies have shown that if the decision-maker is made aware of his or her unconscious behavior or underlying implicit biases, there are ways to remedy or “interfere” with the automatic resort to such biases.128 As individuals, sometimes such a cognizance means taking a step backward, reflecting upon the (child welfare) system as a whole, and treating each mother as the individual she is, instead of as conceptualizing some monolithic, one-size- fits-all image of motherhood.129 At other times, it is to step back and reflect upon our own unrealistic, idealized images of motherhood––what has been coined “the fantasy of the perfect mother.”130 This reflection necessarily includes the image of fatherhood and its expectations as part of the equation. We need to become proactive, meaningfully reflect, and then move towards change and reform in the culture. As a system, Family Court needs to focus upon the perspectives of the litigants themselves. Whether a litigant perceives bias in the courtroom is often more critical than whether or not such bias actually exists.131 We need to strive to create a preventative, useful culture within the child welfare system instead of a punitive, unforgiving culture. As addressed earlier, if a mother fears being misjudged, stereotyped, or held to an impossible standard, she may not seek help
127. Blake D. Morant, Introductory Essay: The Relevance of Gender Bias Studies, 58 WASH. & LEE L. REV. 1073, 1081 (2001) (alteration in original). See also Deana A. Pollard, Unconscious Bias and Self-Critical Analysis: The Case for a Qualified Evidentiary Equal Employment Opportunity Privilege, 74 WASH. L. REV. 913, 922 (1999) (“To break the bad habit of unconscious negative and automatic discriminatory attitudes, a person must consciously activate unbiased beliefs each time a stereotype is automatically triggered. The more the individual does this, the more accessible the unprejudiced belief becomes, and at some point the egalitarian belief's accessibility will ‘rival’ the automatic response.”) (citations omitted). See also Kang, Bennett, Carbado, Casey, Dasgupta, Faigman, Godsil, Greenwald, Levinson, & Mnookin, Implicit Bias in the Courtroom, supra note 36, at 47-53 (outlining ways to broaden judges’ understanding of implicit bias such as doubting one’s objectivity, increasing motivation, improving conditions of decision-making, and counting). 128. Morant, supra note 127, at 1081 ("Remedies for bias. . . require conscientiousness- raising techniques. . . [which] then prompts possible rejection of bias and thwarts its negative influence on decision making."). 129. See SCHNEIDER, supra note 124, at 157–68 (arguing that partner’s abuse hinders ability of mother to achieve society’s unrealistic ideal of the “all responsible” mother); Justine A. Dunlap, Sometimes I Feel Like a Motherless Child: The Error of Pursuing Battered Mothers for Failure to Protect, 50 LOY. L. REV. 565, 576 (2004) (“Society juxtaposes the image of the victimized, abused mother to that of the ‘good mother,’ who does and is all for her children. It then reviles the battered women for being unlike the good mother.”) (citation omitted); Goodmark, supra note 3, at 616–17 (discussing need for “batterer accountability” because child protection system is primarily mother- focused, overlooking victimization of mothers and charging them with failing to protect children from exposure to or abuse by their batterer); Oberman, supra note 68, at 349–54 (describing how different situations require different behavior by mothers to be considered “good”). 130. Chodorow & Contratto, supra note 40, at 191–92. 131. See LUNDY BANCROFT, WHY DOES HE DO THAT? INSIDE THE MINDS OF ANGRY AND CONTROLLING MEN 291–313 (2002); JAMES PTACEK, BATTERED WOMEN IN THE COURTROOM: THE POWER OF JUDICIAL RESPONSES 55, 150–51 (1999) (debunking the myth that victims try to gain leverage in other cases by asking for orders of protection); Breger, supra note 55, at 19. BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 589 from those who are there to help her.132 The ultimate inquiry becomes whether the Family Court could even be sustained without women/mothers as its core litigants, and whether the gender of our Family Court litigants has become virtually invisible because of its predominance. It is as if the system is custom built for women, specifically mothers, and specifically poor mothers. Moving forward, the next question that should be studied to aid in eradicating implicit gender bias in Family Court should be whether there is, in fact, an inherent invisibility resulting in unknowing bias against women and mothers precisely because of their core presence in the Family Court?133 One might question whether we would still have a Family Court as we currently know it without impoverished women as litigants, especially as respondents in child neglect or child abuse cases.134
VI. CONCLUSION: MAKING GENDER VISIBLE Tremendous progress has been made when addressing issues in the first wave of explicit gender bias in the courtroom. Task forces from various states and bar associations have spearheaded studies and investigations to uncover
132. Breger, supra note 55, at 3 (perception of bias can undermine a litigant's faith in the justice system, the legitimacy of a given decision, and the willingness of that litigant to comply with that decision); Amy Neustein & Michael Lesher, FROM MADNESS TO MUTINY: WHY MOTHERS ARE RUNNING FROM THE FAMILY COURTS––AND WHAT CAN BE DONE ABOUT IT (2005); Jeffrey Fagan, Introduction to Symposium on Legitimacy and Criminal Justice, 6 OHIO ST. J. CRIM. L. 123, 126 (2008); Oberman, supra note 68, at 354–55 (discussing how a mother was reticent to seek help for her child out of fear that “the State” would see her as a “bad” mother and take away her children). 133. See, e.g., Annette R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and Class in the Child Protection System [An Essay], 48 S.C. L. Rev. 577, 587 (1997) (asserting that “the state clearly, and at times explicitly, targets women based on their gender, race and class. . .”). 134. See Chodorow & Contratto, supra note 40, at 192–95 (stating that psychoanalytic theory posits that mothers are all powerful because of the influence they have over their children, and then are appropriately blamed if their children have psychological problems; however, some feminist writers have concluded that women are powerless in raising their children because of role of patriarchy in governing their lives) (citing NANCY FRIDAY, MY MOTHER/MY SELF (1977)); JUDITH ARCANA, OUR MOTHER’S DAUGHTERS (1979); DOROTHY DINNERSTEIN, THE MERMAID AND THE MINOTAUR (1976); Jane Flax, The Conflict between Nurturance and Autonomy in Mother- Daughter Relationships and within Feminism, 4 FEMINIST STUD. 171 (1978); ADRIENNE RICH, OF WOMAN BORN: MOTHERHOOD AS EXPERIENCE AND INSTITUTION (1976); Fineman, supra note 73, at 289–90 (“[M]otherhood has always been, and continues to be, a colonized concept—an event physically practiced and experienced by women, but occupied and defined, given content and value, by the core concepts of patriarchal ideology.”); Neal, supra note 43, at 69 (discussing how bias based on race and class may cause a mother to lose custody of her children); Rothman, supra note 73, at 486 (explaining that, even with modern technology, definitions of motherhood are continually defined by the privileges of patriarchy, and advocating that there must be an “explicit recognition of mother-hood,” separate from notions of patriarchy). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
590 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 36:555 where such explicit biases exist.135 The second wave in examining gender bias in the court system should be, in part, to more deeply address the perspectives of the actual litigants in the courtroom and to acknowledge and examine the implicit biases that exist about motherhood. Implicit gender and motherhood bias has been a pervasive and invisible problem in Family Courts, and the legal profession must address it. Specifically, we need to educate Family Court players about the damaging effects that implicit biases about motherhood have on child welfare proceedings. To do so will hopefully move us away from a system in which mothers are held punitively accountable, and move us toward a system that prevents child maltreatment by supporting mothers. Some areas worthy of further exploration and research include: Whether or not child welfare agencies and courts are also pursuing cases against fathers, including absentee fathers, keeping in mind safety issues for mothers and children. In other words, is the system (and the larger society) holding fathers to the same exacting standards that we hold mothers? Is societal bias to blame for female and mother over-representation, or is there something specific within the court system that can be remedied? Is it just that biology makes the mothers easier to locate, or is this part of the underlying gender bias? What data can we borrow from labor and gender literature and the increasingly growing body of implicit bias literature to help articulate and ultimately lessen the inherent cognitive biases we hold as a society about the role of mothers? How can we look at the issue of (implicit) gender bias honestly and fully, while acknowledging the large role of class and race as inextricably intertwined with gender and motherhood? When we as a society require women to strive to be perfect mothers, we set the bar for respondent mothers unattainably high. It is time we critically examine why women are the predominant litigants in Family Court, specifically as respondent mothers in child protective proceedings. This Article purposefully poses more questions than it answers. It is an express urging to delve deeper into implicit gender bias and re-frame how we view our court system’s treatment of women and mothers. The (in)visibility of gender in our courtrooms needs to be examined in the open, stared at front and center. To eradicate gender biases against mothers, we need to acknowledge and face the implicit bias in our
135. See, e.g., COMMONWEALTH OF MASSACHUSETTS, supra note 28; Sandy Mastro, Courtroom Bias: Gender Discrimination Against Pregnant Litigators, 8 WM. & MARY J. WOMEN & L. 155 (2001) (discussing whether basic biological facts lead to the conclusion that women will necessarily face gender discrimination as long as there are physical differences between the two genders); Morant, supra note 127 (examining the task force on courtroom bias in the Commonwealth of Virginia and discussing the implications of its findings, as well as recommendations for preventing such bias). BREGER PROOF FINAL 01-14-13.DOCX (DO NOT DELETE) 1/15/2013 4:30 PM
2012] THE (IN)VISIBILITY OF MOTHERHOOD 591 gendered constructions of parenthood. The dialogue must continue from here.
Implicit Bias
A Primer for Courts
Jerry Kang
Prepared for the National Campaign to Ensure the Racial and Ethnic Fairness of America’s State Courts August 2009
Table of Contents ABOUT THE PRIMER Implicit Bias: A Primer ...... 1 This Primer was produced as part of the National Campaign to Ensure the Racial Schemas and Implicit Cognitions ...... 1 and Ethnic Fairness of America’s State Implicit Social Cognitions ...... 1 Courts. The Campaign seeks to mobilize the significant expertise, experience, and Asking about Bias ...... 2 commitment of state court judges and court officers to ensure both the Implicit measurement devices ...... 2 perception and reality of racial and ethnic Pervasive implicit bias ...... 3 fairness across the nation's state courts. The Campaign is funded by the Open Real-world consequences ...... 4 Society Institute, the State Justice Malleability ...... 4 Institute, and the National Center for State Courts. Points of view or opinions The big picture ...... 5 expressed in the Primer are those of the Glossary ...... 7 author and do not represent the official position of the funding agencies. To learn Bibliography ...... 10 more about the Campaign, visit www.ncsconline.org/ref.
ABOUT THE AUTHOR & REVIEWERS Jerry Kang is Professor of Law at UCLA School of Law. He has written and lectured extensively on the role of implicit bias in the law. For more information on Professor Kang, please visit jerrykang.net. The Primer benefited from the review and comments of several individuals working with the National Campaign, including Dr. Pamela Casey, Dr. Fred Cheesman, Hon. Ken M. Kawaichi, Hon. Robert Lowenbach, Dr. Shawn Marsh, Hon. Patricia M. Martin, Ms. Kimberly Papillon, Hon. Louis Trosch, and Hon. Roger K. Warren.
These schemas are helpful because they allow Implicit Bias: A Primer us to operate without expending valuable Schemas and Implicit Cognitions (or mental resources. In fact, unless something “mental shortcuts”) goes wrong, these thoughts take place automatically without our awareness or Stop for a moment and consider what conscious direction. In this way, most cognitions bombards your senses every day. Think about are implicit. everything you see, both still and moving, with all their color, detail, and depth. Think about Implicit Social Cognitions (or “thoughts what you hear in the background, perhaps a about people you didn’t know you song on the radio, as you decode lyrics and had”) musical notes. Think about touch, smell, and even taste. And while all that’s happening, you What is interesting is that schemas apply not might be walking or driving down the street, only to objects (e.g., “chairs”) or behaviors (e.g., avoiding pedestrians and cars, chewing gum, “ordering food”) but also to human beings (e.g., digesting your breakfast, flipping through email “the elderly”). We naturally assign people into on your smartphone. How does your brain do various social categories divided by salient and all this simultaneously? chronically accessible traits, such as age, gender, race, and role. And just as we might It does so by processing through schemas, have implicit cognitions that help us walk and which are templates of knowledge that help us drive, we have implicit social cognitions that organize specific examples into broader guide our thinking about social categories. categories. When we see, for example, Where do these schemas come from? They something with a flat seat, a back, and some come from our experiences with other people, legs, we recognize it as a “chair.” Regardless of some of them direct (i.e., real-world whether it is plush or wooden, with wheels or encounters) but most of them vicarious (i.e., bolted down, we know what to do with an relayed to us through stories, books, movies, object that fits into the category “chair.” media, and culture). Without spending a lot of mental energy, we simply sit. Of course, if for some reason we If we unpack these schemas further, we see have to study the chair carefully--because we that some of the underlying cognitions include like the style or think it might collapse--we can stereotypes, which are simply traits that we and will do so. But typically, we just sit down. associate with a category. For instance, if we think that a particular category of human beings We have schemas not only for objects, but also is frail--such as the elderly--we will not raise our processes, such as how to order food at a guard. If we think that another category is restaurant. Without much explanation, we foreign--such as Asians--we will be surprised by know what it means when a smiling person their fluent English. These cognitions also hands us laminated paper with detailed include attitudes, which are overall, evaluative descriptions of food and prices. Even when we feelings that are positive or negative. For land in a foreign airport, we know how to follow instance, if we identify someone as having the crazy mess of arrows and baggage icons graduated from our beloved alma mater, we toward ground transportation. will feel more at ease. The term “implicit bias” 1 includes both implicit stereotypes and implicit experiments go on and on. And recall that by attitudes. definition, implicit biases are those that we carry without awareness or conscious direction. Though our shorthand schemas of people may So how do we know whether we are being be helpful in some situations, they also can lead biased or fair-and-square? to discriminatory behaviors if we are not careful. Given the critical importance of Implicit measurement devices (or exercising fairness and equality in the court “don’t tell me how much you weigh, system, lawyers, judges, jurors, and staff should just get on the scale”) be particularly concerned about identifying such In response, social and cognitive psychologists possibilities. Do we, for instance, associate with neuroscientists have tried to develop aggressiveness with Black men, such that we instruments that measure stereotypes and see them as more likely to have started the attitudes, without having to rely on potentially fight than to have responded in self-defense? untrustworthy self-reports. Some instruments Or have we already internalized the lessons of have been linguistic, asking folks to write out Martin Luther King, Jr. and navigate life in a sentences to describe a certain scene from a perfectly “colorblind” (or gender-blind, newspaper article. It turns out that if someone ethnicity-blind, class-blind, etc.) way? engages in stereotypical behavior, we just Asking about Bias (or “it’s murky in describe what happened. If it is counter-typical, here”) we feel a need to explain what happened. (Von Hippel 1997; Sekaquaptewa 2003). One way to find out about implicit bias is simply to ask people. However, in a post-civil rights Others are physiological, measuring how much environment, it has become much less useful to we sweat, how our blood pressure changes, or ask explicit questions on sensitive topics. We even which regions of our brain light up on an run into a “willing and able” problem. fMRI (functional magnetic resonance imaging) scan. (Phelps 2000). First, people may not be willing to tell pollsters and researchers what they really feel. They may Still other techniques borrow from marketers. be chilled by an air of political correctness. For instance, conjoint analysis asks people to give an overall evaluation to slightly different Second, and more important, people may not product bundles (e.g., how do you compare a know what is inside their heads. Indeed, a 17” screen laptop with 2GB memory and 3 USB wealth of cognitive psychology has ports, versus a 15” laptop with 3 GB of memory demonstrated that we are lousy at and 2 USB ports). By offering multiple rounds of introspection. For example, slight choices, one can get a measure of how environmental changes alter our judgments and important each feature is to a person even if behavior without our realizing. If the room she had no clue to the question “How much smells of Lysol, people eat more neatly. People would you pay for an extra USB port?” Recently, holding a warm cup of coffee (versus a cold cup) social cognitionists have adapted this ascribe warmer (versus cooler) personality traits methodology by creating “bundles” that include to a stranger described in a vignette. The demographic attributes. For instance, how
2 would you rank a job with the title Assistant Pervasive implicit bias (or “it ain’t no Manager that paid $160,000 in Miami working accident”) for Ms. Smith, as compared to another job with It may seem silly to measure bias by playing a the title Vice President that paid $150,000 in sorting game (i.e. the IAT). But, a decade of Chicago for Mr. Jones? (Caruso 2009). research using the IAT reveals pervasive Scientists have been endlessly creative, but so reaction time differences in every country far, the most widely accepted instruments have tested, in the direction consistent with the used reaction times--some variant of which has general social hierarchies: German over Turk (in been used for over a century to study Germany), Japanese over Korean (for Japanese), psychological phenomena. These instruments White over Black, men over women (on the draw on the basic insight that any two concepts stereotype of “career” versus “family”), light- that are closely associated in our minds should skinned over dark skin, youth over elderly, be easier to sort together. If you hear the word straight over gay, etc. These time differentials, “moon,” and I then ask you to think of a laundry which are taken to be a measure of implicit detergent, then “Tide” might come more bias, are systematic and pervasive. They are quickly to mind. If the word “RED” is painted in statistically significant and not due to random the color red, we will be faster in stating its chance variations in measurements. color than the case when the word “GREEN” is These pervasive results do not mean that painted in red. everyone has the exact same bias scores. Although there are various reaction time Instead, there is wide variability among measures, the most thoroughly tested one is individuals. Further, the social category you the Implicit Association Test (IAT). It is a sort of belong to can influence what sorts of biases you video game you play, typically on a computer, are likely to have. For example, although most where you are asked to sort categories of Whites (and Asians, Latinos, and American pictures and words. For example, in the Black- Indians) show an implicit attitude in favor of White race attitude test, you sort pictures of Whites over Blacks, African Americans show no European American faces and African American such preference on average. (This means, of faces, Good words and Bad words in front of a course, that about half of African Americans do computer. It turns out that most of us respond prefer Whites, but the other half prefer Blacks.) more quickly when the European American face Interestingly, implicit biases are dissociated and Good words are assigned to the same key from explicit biases. In other words, they are (and African American face and Bad words are related to but differ sometimes substantially assigned to the other key), as compared to from explicit biases--those stereotypes and when the European American face and Bad attitudes that we expressly self-report on words are assigned to the same key (and surveys. The best understanding is that implicit African American face and Good words are and explicit biases are related but different assigned to the other key). This average time mental constructs. Neither kind should be differential is the measure of implicit bias. [If viewed as the solely “accurate” or “authentic” the description is hard to follow, try an IAT measure of bias. Both measures tell us yourself at Project Implicit.] something important. 3
Real-world consequences (or “why implicit bias predicts the amount of shooter should we care?”) bias--how much easier it is to shoot African Americans compared to Whites in a All these scientific measures are intellectually videogame simulation (Glaser & Knowles interesting, but lawyers care most about real- 2008); world consequences. Do these measures of implicit bias predicts voting behavior in Italy implicit bias predict an individual’s behaviors or (Arcari 2008); decisions? Do milliseconds really matter>? implicit bias predicts binge-drinking (Ostafin (Chugh 2004). If, for example, well-intentioned & Palfai 2006), suicide ideation (Nock & people committed to being “fair and square” Banaji 2007), and sexual attraction to are not influenced by these implicit biases, then children (Gray 2005). who cares about silly video game results? With any new scientific field, there remain There is increasing evidence that implicit biases, questions and criticisms--sometimes strident. as measured by the IAT, do predict behavior in (Arkes & Tetlock 2004; Mitchell & Tetlock 2006). the real world--in ways that can have real And on-the-merits skepticism should be effects on real lives. Prof. John Jost (NYU, encouraged as the hallmark of good, rigorous psychology) and colleagues have provided a science. But most scientists studying implicit recent literature review (in press) of ten studies bias find the accumulating evidence persuasive. that managers should not ignore. Among the For instance, a recent meta-analysis of 122 findings from various laboratories are: research reports, involving a total of14,900 implicit bias predicts the rate of callback subjects, revealed that in the sensitive domains interviews (Rooth 2007, based on implicit of stereotyping and prejudice, implicit bias IAT stereotype in Sweden that Arabs are lazy); scores better predict behavior than explicit self- implicit bias predicts awkward body reports. (Greenwald et al. 2009). language (McConnell & Leibold 2001), And again, even though much of the recent which could influence whether folks feel research focus is on the IAT, other instruments that they are being treated fairly or and experimental methods have corroborated courteously; the existence of implicit biases with real world implicit bias predicts how we read the consequences. For example, a few studies have friendliness of facial expressions demonstrated that criminal defendants with (Hugenberg & Bodenhausen 2003); more Afro-centric facial features receive in implicit bias predicts more negative certain contexts more severe criminal evaluations of ambiguous actions by an punishment (Banks et al. 2006; Blair 2004). African American (Rudman & Lee 2002), which could influence decisionmaking in Malleability (or “is there any good news?”) hard cases; implicit bias predicts more negative The findings of real-world consequence are evaluations of agentic (i.e. confident, disturbing for all of us who sincerely believe aggressive, ambitious) women in certain that we do not let biases prevalent in our hiring conditions (Rudman & Glick 2001); culture infect our individual decisionmaking. Even a little bit. Fortunately, there is evidence
4 that implicit biases are malleable and can be discrimination in hiring a police chief. changed. (Uhlmann & Cohen 2005). o In order to check against bias in any An individual’s motivation to be fair does particular situation, we must often matter. But we must first believe that recognize that race, gender, sexual there’s a potential problem before we try to orientation, and other social categories fix it. may be influencing decisionmaking. This The environment seems to matter. Social recognition is the opposite of various contact across social groups seems to have forms of “blindness” (e.g., color- a positive effect not only on explicit blindness). attitudes but also implicit ones. Third, environmental exposure to In outlining these findings of malleability, we do countertypical exemplars who function as not mean to be Pollyanish. For example, mere “debiasing agents” seems to decrease our social contact is not a panacea since bias. psychologists have emphasized that certain o In one study, a mental imagery exercise conditions are important to decreasing of imagining a professional business prejudice (e.g., interaction on equal terms; woman (versus a Caribbean vacation) repeated, non-trivial cooperation). Also, fleeting decreased implicit stereotypes of exposure to countertypical exemplars may be women. (Blair et al. 2001). drowned out by repeated exposure to more o Exposure to “positive” exemplars, such typical stereotypes from the media (Kang 2005). as Tiger Woods and Martin Luther King in a history questionnaire, decreased Even if we are skeptical, the bottom line is that implicit bias against Blacks. (Dasgupta & there’s no justification for throwing our hands Greenwald 2001). up in resignation. Certainly the science doesn't o Contact with female professors and require us to. Although the task is challenging, deans decreased implicit bias against we can make real improvements in our goal women for college-aged women. toward justice and fairness. (Dasgupta & Asgari 2004). The big picture (or “what it means to Fourth, various procedural changes can be a faithful steward of the judicial disrupt the link between implicit bias and system”) discriminatory behavior. o In a simple example, orchestras started It’s important to keep an eye on the big picture. using a blind screen in auditioning new The focus on implicit bias does not address the musicians; afterwards women had existence and impact of explicit bias--the much greater success. (Goldin & Rouse stereotypes and attitudes that folks recognize 2000). and embrace. Also, the past has an inertia that o In another example, by committing has not dissipated. Even if all explicit and beforehand to merit criteria (is book implicit biases were wiped away through some smarts or street smarts more magical wand, life today would still bear the important?), there was less gender burdens of an unjust yesterday. That said, as careful stewards of the justice system, we
5 should still strive to take all forms of bias seriously, including implicit bias.
After all, Americans view the court system as the single institution that is most unbiased, impartial, fair, and just. Yet, a typical trial courtroom setting mixes together many people, often strangers, from different social backgrounds, in intense, stressful, emotional, and sometimes hostile contexts. In such environments, a complex jumble of implicit and explicit biases will inevitably be at play. It is the primary responsibility of the judge and other court staff to manage this complex and bias-rich social situation to the end that fairness and justice be done--and be seen to be done.
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transparent explanation of “the prudential, Glossary economic, political, or religious reasons for Note: Many of these definitions draw from Jerry retaining a less accurate and outdated view.” Kang & Kristin Lane, A Future History of Law and Kristin Lane, Jerry Kang, & Mahzarin Banaji, Implicit Social Cognition (unpublished Implicit Social Cognition and the Law, 3 ANNU. manuscript 2009) REV. LAW SOC. SCI. 19.1-19.25 (2007)
Attitude Dissociation An attitude is “an association between a given Dissociation is the gap between explicit and object and a given evaluative category.” R.H. implicit biases. Typically, implicit biases are Fazio, et al., Attitude accessibility, attitude- larger, as measured in standardized units, than behavior consistency, and the strength of the explicit biases. Often, our explicit biases may be object-evaluation association, 18 J. close to zero even though our implicit biases are EXPERIMENTAL SOCIAL PSYCHOLOGY 339, 341 larger. (1982). Evaluative categories are either positive or negative, and as such, attitudes reflect what There seems to be some moderate-strength we like and dislike, favor and disfavor, approach relation between explicit and implicit biases. and avoid. See also stereotype. See Wilhelm Hofmann, A Meta-Analysis on the Correlation Between the Implicit Association Behavioral realism Test and Explicit Self-Report Measures, 31 A school of thought within legal scholarship that PERSONALITY & SOC. PSYCH. BULL. 1369 (2005) calls for more accurate and realistic models of (reporting mean population correlation r=0.24 human decision-making and behavior to be after analyzing 126 correlations). Most incorporated into law and policy. It involves a scientists reject the idea that implicit biases are three step process: the only “true” or “authentic” measure; both explicit and implicit biases contribute to a full First, identify advances in the mind and understanding of bias. behavioral sciences that provide a more accurate model of human cognition and Explicit behavior. Explicit means that we are aware that we have a particular thought or feeling. The term Second, compare that new model with the sometimes also connotes that we have an latent theories of human behavior and decision- accurate understanding of the source of that making embedded within the law. These latent thought or feeling. Finally, the term often theories typically reflect “common sense” based connotes conscious endorsement of the on naïve psychological theories. thought or feeling. For example, if one has an Third, when the new model and the latent explicitly positive attitude toward chocolate, theories are discrepant, ask lawmakers and then one has a positive attitude, knows that one has a positive attitude, and consciously legal institutions to account for this disparity. endorses and celebrates that preference. See An accounting requires either altering the also implicit. law to comport with more accurate models of thinking and behavior or providing a 7
Implicit unfavorable feeling, thought, or action toward Implicit means that we are either unaware of or social objects.” Anthony Greenwald & Mahzarin mistaken about the source of the thought or Banaji, Implicit social cognition: attitudes, self- feeling. R. Zajonc, Feeling and thinking: esteem, and stereotypes, 102 Psychol. Rev. 4, 8 Preferences need no inferences, 35 AMERICAN (1995). Generally, we are unaware of our PSYCHOLOGIST 151 (1980). If we are unaware implicit attitudes and may not endorse them of a thought or feeling, then we cannot report it upon self-reflection. See also attitude; implicit. when asked. See also explicit. Implicit Biases Implicit Association Test A bias is a departure from some point that has The IAT requires participants to classify rapidly been marked as “neutral.” Biases in implicit individual stimuli into one of four distinct stereotypes and implicit attitudes are called categories using only two responses (for “implicit biases.” example, in a the traditional computerized IAT, participants might respond using only the “E” Implicit Stereotypes key on the left side of the keyboard, or “I” on “Implicit stereotypes are the introspectively the right side). For instance, in an age attitude unidentified (or inaccurately identified) traces IAT, there are two social categories, YOUNG and of past experience that mediate attributions of OLD, and two attitudinal categories, GOOD and qualities to members of a social category” BAD. YOUNG and OLD might be represented by Anthony Greenwald & Mahzarin Banaji, Implicit black-and-white photographs of the faces of social cognition: attitudes, self-esteem, and young and old people. GOOD and BAD could be stereotypes, 102 Psychol. Rev. 4, 8 (1995). represented by words that are easily identified Generally, we are unaware of our implicit as being linked to positive or negative affect, stereotypes and may not endorse them upon such as “joy” or “agony”. A person with a self-reflection. See also stereotype; implicit. negative implicit attitude toward OLD would be Implicit Social Cognitions expected to go more quickly when OLD and Social cognitions are stereotypes and attitudes BAD share one key, and YOUNG and GOOD the about social categories (e.g., Whites, youths, other, than when the pairings of good and bad women). Implicit social cognitions are implicit are switched. stereotypes and implicit attitudes about social The IAT was invented by Anthony Greenwald categories. and colleagues in the mid 1990s. Project Implicit, which allows individuals to take these Stereotype tests online, is maintained by Anthony A stereotype is an association between a given Greenwald (Washington), Mahzarin Banaji object and a specific attribute. An example is (Harvard), and Brian Nosek (Virginia). “Norwegians are tall.” Stereotypes may support an overall attitude. For instance, if one likes tall Implicit Attitudes people and Norwegians are tall, it is likely that “Implicit attitudes are introspectively this attribute will contribute toward a positive unidentified (or inaccurately identified) traces orientation toward Norwegians. See also of past experience that mediate favorable or attitude.
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Validities To decide whether some new instrument and findings are valid, scientists often look for various validities, such as statistical conclusion validity, internal validity, construct validity, and predictive validity.
Statistical conclusion validity asks whether the correlation is found between independent and dependent variables have been correctly computed. Internal validity examines whether in addition to correlation, there has been a demonstration of causation. In particular, could there be potential confounds that produced the correlation? Construct validity examines whether the concrete observables (the scores registered by some instrument) actually represent the abstract mental construct that we are interested in. As applied to the IAT, one could ask whether the test actually measures the strength of mental associations held by an individual between the social category and an attitude or stereotype Predictive validity examines whether some test predicts behavior, for example, in the form of evaluation, judgment, physical movement or response. If predictive validity is demonstrated in realistic settings, there is greater reason to take the measures seriously.
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Eric Luis Uhlmann & Geoffrey L. Cohen, Bibliography Constructed Criteria: Redefining Merit to Justify Discrimination, 16 Psychol. Sci. 474 (2005) Allen R. McConnell & Jill M. Leibold, Relations Among the Implicit Association Test, Eugene M. Caruso, Dobromir A. Rahnev, & Discriminatory Behavior, and Explicit Measures Mahzarin Banaji, Using Conjoint Analysis to of Racial Attitudes, 37 J. Experimental Soc. Detect Discrimination: Revealing Covert Psychol. 435 (2001) Preferences from Overt Choices, 27 Soc. Cognition 128 (2009) Anthony G. Greenwald, et al., Understanding and Using the Implicit Association Test: III. Gregory Mitchell & Philip E. Tetlock, Meta-Analysis of Predictive Validity, 97 J. Antidiscrimination Law and the Perils of Personality & Soc. Psychol. 17 (2009) Mindreading, 67 Ohio St. L.J. 1023 (2006)
Brian D. Ostafin, & Tibor P. Palfai, Compelled to Hal R. Arkes & Philip E. Tetlock, Attributions of Consume: The Implicit Association Test and Implicit Prejudice, or "Would Jesse Jackson 'Fail' Automatic Alcohol Motivation, 20 Psych. of the Implicit Association Test?," 15 Psychol. Addictive Behav. 322 (2006) Inquiry 257 (2004)
Claudia Goldin & Cecilia Rouse, Orchestrating Irene V. Blair et al, The Influence of Afrocentric Impartiality: The Impact of “Blind” Auditions on Facial Features in Criminal Sentencing, 15 Female Musicians, 90 Am. Econ. Rev. 715 (2000) Psychol. Sci. 674 (2004)
Dan-Olof Rooth, Implicit Discrimination in Irene V. Blair, Jennifer E. Ma, & Alison P. Hiring: Real World Evidence (Institute for the Lenton, Imagining Stereotypes Away: The Study of Labor, Discussion Paper No. 2764, April Moderation of Implicit Stereotypes Through 2007) Mental Imagery, 81 J. Person. & Soc. Psych. 828 (2001) Denise Sekaquaptewa, et al., Stereotypic Explanatory Bias: Implicit Stereotyping as a Jerry Kang, Trojan Horses of Race, 118 Harv. L. Predictor of Discrimination, 39 J. Experimental Rev. 1491 (2005) Soc. Psychol.75 (2003). Kurt Hugenberg & Galen V. Bodenhausen, Dolly Chugh, Societal and Managerial Facing Prejudice: Implicit Prejudice and the Implications of Implicit Social Cognition: Why Perception of Facial Threat. 14 Psychol. Sci. 640 Milliseconds Matter, 17 Soc. Just. Res. 203 (2003) (2004) Laurie A. Rudman & Matthew R. Lee, Implicit Elizabeth A. Phelps, et. al., Performance on and Explicit Consequences of Exposure to Indirect Measures of Race Evaluation Predicts Violent and Misogynous Rap Music, 5 Group Amygdala Activation, 12 J. Cog. Neuroscience Processes & Intergroup Rel. 133 (2002) 729 (2000).
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Laurie A. Rudman & Peter Glick, Prescriptive Combating Automatic Prejudice with Images of Gender Stereotypes and Backlash Toward Admired and the Disliked Individuals, 81 J. Agentic Women, 57 J. Soc. Issues 743 (2001) Person. & Soc. Psych.800 (2001)
Luciano Arcuri et al., Predicting the Vote: Nilanjana Dasgupta & Shaki Asgari, Seeing is Implicit Attitudes as Predictors of the Future Believing: Exposure to Counterstereotypic Behavior of Decided and Undecided Voters, 29 Women Leaders and Its Effect on the Political Psychology369 Malleability of Automatic Gender Stereotyping, 40 J. Experimental Soc. Psychol. 642 (2004) Matthew K. Knock & Mahzarin R. Banaji, Prediction of Suicide Ideation and Attempts R. Richard Banks, Jennifer L. Eberhardt, Lee Among Adolescents Using a Brief Performance- Ross, Discrimination and Implicit Racial Bias in a Based Test, 75 J. Clinical & Consulting Racially Unequal Society. 94 Calif. Law Rev. Psychology 707 (2007). 1169 (2006)
Nicola S. Gray, et al., An Implicit Test of the William Von Hippel et al., The Linguistic Associations Between Children and Sex in Intergroup Bias As an Implicit Indicator of Pedophiles, 114 J. Abnormal Psych. 304 (2005) Prejudice, 33 J. Experimental Soc. Psychol. 490 (1997) Nilanjana Dasgupta & Anthony G. Greenwald, On the Malleability of Automatic Attitudes:
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Kretser, Rachel 3/10/2017 For Educational Use Only
JUDICIAL DIVERSITY: WHERE INDEPENDENCE AND..., 67 Alb. L. Rev. 775
67 Alb. L. Rev. 775
Albany Law Review 2004
An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication Perspectives: Judicial Elections Versus Merit Selection *775 JUDICIAL DIVERSITY: WHERE INDEPENDENCE AND ACCOUNTABILITY MEET
James Andrew Wynn, Jr. a1 Eli Paul Mazur aa1
Copyright (c) 2004 Albany Law Review; James Andrew Wynn, Jr.; Eli Paul Mazur
A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice . . . . Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.
--Justice Anton Scalia 1
I. Introduction
Unquestionably, the subject of judicial selection continues to be a hot topic for legal forums, bar journals, and law reviews. The challenge continues to be how to balance the competing interests of judicial independence and judicial accountability. For while judicial independence connotes an institutional immunity from inappropriate extra- legal pressures in the decisionmaking process, judicial accountability seeks to comport with the democratic ideal of responsiveness to public opinion. Thus, in the federal system, lifetime tenure and salary protection are said to enhance judicial independence, whereas in thirty-nine states, popular elections (partisan, non-partisan, and retention) are thought to further the aim of judicial accountability.
This article makes the argument that in a diverse society, the ideals sought by the independence/accountability dichotomy are dependant upon and subsumed by the attainment of judicial diversity. Fundamentally, judicial independence is predicated on an impartial judge, and judicial accountability is predicated on *776 notions of popular representation. In the absence of diversity, the goals of obtaining an impartial and representative judiciary are credibly challenged.
As Justice Scalia stated for the majority in Republican Party v. White, lack of judicial predisposition is neither desirable, nor possible. Taking that statement as true, it seems evident that a judge's predisposition is inextricably bound to the judge's racial, gender, and ethnic experience. Likewise, a judge's representative capacity is contingent on the ability to hear, understand, and articulate diverse views. Thus, without substantive ideological and narrative judicial diversity, any discussion touting the relative advantages to accountability or independence of elective or appointive judicial selection methods is largely irrelevant. As Deborah Goldberg, Director of the Brennan Center's Democracy Program, notes “[w]hether judicial diversity will be helped or harmed by a movement to non-elective systems is . . . unclear.” 2 It is clear, however, that efforts to obtain a diverse bench, whether in a system of merit selection or popular election, foster the complementary interests of judicial independence and judicial accountability.
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II. The Forced Dichotomy of Independence and Accountability
In the legal literature, judicial independence and judicial accountability are at war. 3 According to this collective history, a fundamental conundrum in our constitutional republic is the method of creating a judicial branch that is both sufficiently insulated from republican concerns--to remain faithful to the *777 Constitution--and democratically accountable. This section will describe this groundwork in anticipation of a discussion of judicial diversity.
A. Judicial Independence
Judicial independence is a foundational principle of our Constitution. The two structural arguments for its importance are straightforward. First, in a constitutional republic the judiciary must be independent from the other branches of government. The Constitution serves as the sovereign will of the people: the Constitution is the definition of government. 4 Thus, as often noted, the executive and legislative branches are precluded from acting in the absence of an express or implied constitutional grant of authority. In this system of government, the judiciary is a constitutional priesthood loyal to the sovereign will--the Constitution--in the face of majoritarian excess, executive encroachment, and legislative self-aggrandizement. 5 Although, seemingly, it is counterintuitive to ordain the sovereign will at the expense of the popular will, this is central to a constitutional republic: constitutional guarantees are empty if subordinated to extraconstitutional passions. 6 Thus, judicial independence “advances democracy by ensuring that the majority's long- term, *778 constitutive values are represented in the heat of the moment.” 7
Second, judicial independence is predicated on a neutralizing distance between the judge and the legal dispute. Judicial impartiality is not an abstract notion for litigants. For instance, at the time of this country's founding, the Declaration of Independence expressly complained of the judiciary's bias for the crown, lamenting that King George III had “made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.” 8 Thus, under our federal scheme, judicial independence is attained by insulating judges from electoral pressure; 9 indeed, federal judges need not fear losing their jobs or salaries even if their decisions contravene the popular will as expressed in congressional statutes, presidential orders, the press, and/or mass demonstrations.
For proponents of judicial appointments, judicial impartiality in the adjudicative process is the most important aspect of judicial independence. Impartiality is the rule of law. In the words of Supreme Court Justice Anthony M. Kennedy: “‘The law makes a promise of neutrality. If the promise gets broken, the law as we know it ceases to exist. All that's left is the dictate of a tyrant, or perhaps a mob.”’ 10
B. Judicial Accountability
Throughout the last two centuries, 11 the judiciary's (hypothetical) ambivalence to the popular will 12 has ignited the populist argument *779 that the judiciary's electoral insulation is antithetical to democracy: a remnant of entrenched British aristocracy. 13 A recent article by Pennsylvania's AFL-CIO leadership crystallizes this argument:
[T]he merit selection (political appointment) process [is] a wonderful public relations gimmick for disguising a power shift from the people to an elite crew--a completely undemocratic process that empowers non- elected lawyers and others to select judges with little or no accountability to the people. Our democratic tradition is built on the right to vote and those who seek to abolish that right should be required to meet a
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heavy burden of overwhelming evidence. If the issue is close it ought to be resolved in favor of this precious right. Not to value this fundamental right highly would present a serious erosion of our democratic form of government. 14
Furthermore, the proponents of judicial accountability argue that judges are de facto political actors. “According to them, judges make policy daily . . . . [and,] with respect to some matters, judges have more political power than legislators, because they have the ability to thwart the will of the majority.” 15 For these scholars, the power of judicial review, coupled with the judiciary's lack of electoral accountability, “threatens the concept of representative democracy.” 16 These arguments have proven successful: thirty-nine states have chosen, through constitutional convention, amendment, or otherwise, to use election as a method of selecting appellate judges. 17
C. An Escalation in Hostilities
In the wake of the Supreme Court's decision in Republican Party v. White, the tensions between the proponents of judicial appointment and judicial election reached a crescendo. In White, the Supreme Court held that the thirty-nine states electing their *780 judiciary were precluded from prohibiting judges from announcing their views on disputed legal and political issues. Some interpret this holding to mean that states may not make distinctions between the campaign speech of judges and other politicians. 18 Implicitly, this means that in the states with judicial elections, in addition to announcing their views, judges may also pledge their support for controversial issues ranging from abortion, the death penalty, and medical malpractice liability caps. 19 Thus, under an expansive interpretation of White, judicial elections are perceived by some to overtly attack the impartiality and separation of powers considerations of judicial independence-- at least as historically conceived. This transformation of judicial elections into a form indistinguishable in cost, rhetoric, and partisanship from executive and legislative elections has led many scholars, judges, and court-watchers to condemn the Supreme Court and call for the dismantling of the elective system in favor of judicial merit selection. 20 Of course, advocates of judicial elections note that federal judicial appointments are a modern prisoners' dilemma 21 --lest we forget Fortas, Bork, and Estrada. 22
III. Judicial Diversity, Independence, and Impartiality
The arguments for judicial appointments are invariably juxtaposed against the danger judicial elections pose to impartiality. Consider, for example, the following analogy:
Umpires are the trial court judges of the baseball diamond. Now imagine if umpires were elected and forced to fundraise. Like lawyers, major league baseball players would have a vested interest to contribute money to the campaigns. Now, *781 let us say your favorite player came to bat and was called out on a questionable third strike. How much confidence would you have in that call if you knew, or later discovered, that the pitcher gave $10,000 to that particular umpire's election campaign? 23
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To be sure, the simplicity of this analogy implies impartiality is derivative of financial independence. Nonetheless, familiarity is the bedfellow of bias: judicial decisionmaking is subject to being underinclusive when the decision-makers lack diversity.
Indeed, the American judiciary is disproportionately white and male. 24 These white men disproportionately make judgments affecting African-Americans, women, and other minorities. 25 Scholars have detailed how this disparity between the judges and the judged creates a crisis of legitimacy because our courts are perceived by much of the public as biased “instruments of oppression.” 26 More important than a perception of bias, however, is that the absence of diversity creates (in fact) a judicial partiality to the values and stories of the groups overrepresented--white men -- *782 in its midst. Although the vast majority of white male judges are not repositories of racial animus, one commentator notes that they are, nevertheless, “steeped in and bound by narratives which appear not to be narratives at all because they are cloaked in the transparency of whiteness.” 27
Intuitively, it might seem that the problem of racial bias in the judiciary is best addressed by promoting judicial independence in general, rather than judicial diversity in particular. For instance, if we achieve an independent bench why do we need a diverse bench? Will not an independent judiciary adjudicate without reference to prejudice? Furthermore, and inversely, by actively seeking a diverse bench will we not impair the judiciary's independence? For what does diversity mean, what is the value of diversity, if it does not represent some form of affirmative partiality, prejudice, or understanding to dependent variables? 28
However, as Justice Scalia notes in Republican Party v. White, judicial impartiality is not predicated on the empiricist notion of a “tabula rasa.” 29 Judges are not born and reared in isolation. Rather, judges, like the rest of us, are the product of historical *783 circumstance, personal experience, and accidents. As Justice Cardozo wrote, “[t]he great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.” 30 Thus, judicial impartiality is not the absence of experience but rather the presence of human experience coupled with an open mind. Accordingly, in our pursuit to attain an independent and impartial judiciary, we cannot escape the reality--and consequences--that each judge brings to the bench a sum of life experience.
In American society, life experience and perception are inextricably bound to race, ethnicity, and gender. For example, a vast array of empirical research demonstrates a racial divide on issues as divergent as discrimination, 31 taxes, 32 and the size of the federal government. 33 Although African-Americans are certainly not a monolithic block, Leslie Espinoza and Angela Harris have argued that the African-American experience transcends social class and status because wealthy “as well as poor black people are unable to catch taxis at night, are stopped by the police, and suffer from random racist violence.” 34 For Kenneth Karst, these social conditions produce an African-American perspective that is not “just different points of view” but “different realities, [and] different worlds.” 35
Judges are not immune from perceptions shaped by race and gender. Kevin Lyles's 1997 study revealed that eighty- three percent of Caucasian judges believed African-American litigants were treated fairly by the criminal justice system, whereas only eighteen percent of African-American judges held this same belief. 36 *784 Likewise, Elaine Matin's survey reveals that eighty-one percent of female judges describe sex discrimination as a major problem in the law, whereas only 18.5% of male judges express the same concern for any race, gender, or class based bias. 37 Moreover, these racialized and genderized judicial views have a demonstrable impact on case outcomes. For instance, Professor Nancy Crowe's extensive study of race and sex discrimination cases decided by the United States Courts of Appeals between 1981 and
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1996 reveals that women and African-American judges are significantly more likely to rule in favor of discrimination plaintiffs than white male judges. 38 This data is not surprising, for as one scholar notes, “when Sandra Day O'Connor became the first woman Supreme Court Justice, she probably did not forget that when she graduated at the top of her Stanford Law School class in 1952, she was offered a job as a legal secretary.” 39
In recognizing that racial, ethnic, and female experiences create unique lenses of perception, Professor Ifill implores us not to forget that “‘whiteness' is a constructed group identity as well.” 40 This is particularly salient in any discussion of judicial impartiality, because an “elusive benefit of white racial identity is the . . . ability to think of oneself . . . as neutral, unbiased, or impartial.” 41 Thus, we need not “condemn wholesale black judges as biased, or condemn wholesale white judges as racist,” but it is essential that we *785 recognize that the race, gender, and minority experience in America “makes a difference in how judges develop a ‘sense of justice.”’ 42
In Republican Party v. White, Justice Scalia--speaking for the Supreme Court--aptly notes that the root meaning of “‘impartiality’ in the judicial context . . . is the lack of bias for or against either party to the proceeding.” 43 At the same time that Justice Scalia concedes that “it is virtually impossible [and undesirable] to find a judge who does not have preconceptions about the law,” 44 he recognizes that the fundamental guarantee of impartiality is “that the judge who hears his case will apply the law to him in the same way he applies it to any other party.” 45 However, if the experience of race and gender influence perception, and perception influences judicial decisionmaking, then a lack of diversity in the judiciary creates a structural bias--a partiality--which is biased against counter-narratives. Thus, for example, the Supreme Court has endorsed the view that the Fourteenth Amendment and Sixth Amendment require structural impartiality in a jury venire. 46 According to the Court in Taylor v. Louisiana, the systematic exclusion of women from the jury panel violated the Sixth Amendment's fair-cross-section requirement. 47 The Taylor Court believed that “‘[t]he broad representative character of the jury . . . [is an] assurance of a diffused impartiality.”’ 48 Similarly, judicial “[d]iversity promotes impartiality by ensuring that no one viewpoint, perspective, or set of values can persistently dominate legal decision making.” 49
Judicial independence and judicial impartiality are co-existing dependant concepts. In rendering impartial decisions, judges are required “to rely upon their knowledge, experience and sense of justice.” 50 However, empirical research demonstrates that a judge's knowledge and sense of justice are “hemmed in, to a certain extent, by life experiences.” 51 The life experiences of judges are *786 overwhelmingly white, male, and affluent. 52 This homogeneity poses a significant challenge for a judicial system that disproportionately passes judgment on issues affecting African-Americans, women, and other minorities. 53 Ultimately, “the finding and evaluation of facts [as well as legal predispositions, are] affected by our judges' lack of connection with the judged.” 54 Without diversity, affluent white males have an onerous and lonely challenge to articulate the stories and life narratives of African-Americans alleging police brutality, women claiming sexual harassment, and Native Americans demanding greater autonomy, just to name a few. 55
If impartiality is the heart and soul of the merit-selection movement, then proponents of judicial appointment must address the enduring home-field advantage of affluence, whiteness, and manhood in the American judiciary.
IV. Judicial Diversity, Representation, and Accountability
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The proponents of judicial elections invariably cast judicial appointments as a mechanism for elite entrenchment, threatening representative democracy. 56 For these scholars, the awesome power of judicial review to thwart popular will is antithetical to democracy because judicial appointment is accomplished by elites and special interests. In this vein, Judge Learned Hand questioned the democratic legitimacy of an unelected judiciary's policymaking:
For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least *787 theoretically, some part in the direction of public affairs. Of course, I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture. 57
Like Judge Hand, the proponents of judicial elections are unwilling to permit a politically unaccountable branch of government to “light the way to a saner world.” 58
The populist argument for judicial election is winning. In America's state courts, eighty-seven percent of appellate and trial judges are selected in an elective system. 59 This success has magnified the representative function of the judiciary. To this end, the Supreme Court has held that elected judges are subject to the Voting Rights Act, 60 serve representative functions, 61 and affect issues of public importance. 62 Most notably, in Republican Party v. White, the Supreme Court expressly found that “the difference between judicial and legislative elections” is exaggerated. 63 Although the White Court conceded that the “complete separation of the judiciary from the enterprise of ‘representative government’ might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature,” the Court held that this was “not a true picture of the American system” because “state-court judges possess the power to ‘make’ common law” and “the immense power to shape the States' constitutions as well.” 64 In the wake of these statistics and decisions, it is apparent to Luke Bierman that there is a “lack of momentum for merit selection.” 65
Despite the populist success, the Supreme Court's ringing endorsement, and the failure of legitimate alternatives, judicial elections have not produced the sine qua non of accountability: community representation. Elected state judiciaries are less diverse *788 than their appointed federal counterparts. 66 This lack of diversity has direct and deleterious impacts on the success of minority litigants, the representative function of the elected judiciary, and, most importantly, the quality of judicial decisionmaking.
On the trial court level, judging is substantially a discretionary affair and “the art of judging begins with the portrayal of the facts.” 67 As Jerome Frank recognized a half-century ago, the entire criminal and civil justice system, from the trial to every appellate level, is predicated on the “‘uncontrollable power [of trial judges] to choose the facts . . . to believe one witness rather than another.”’ 68 In this fact-finding process, “judges . . . function as representatives” and “articulate, engage and affirm the [familiar] narratives . . . [that] they share with their constituent communities.” 69 As Justice Byron White conceded, the African-American experience is unfamiliar to many white judges. 70 “Even the most conscientious judge will have difficulty in imagining the thoughts and feelings of people who have grown up in groups that [the judge's] culture has trained him to see as outsiders.” 71 This racial and gender blind spot makes it difficult for an affluent white judiciary to understand why an African-American male's flight from the police does not, necessarily, evidence a consciousness of guilt, or why a date rape victim's failure to immediately contact authorities does
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Furthermore, on a pragmatic level, the process of judging *789 ultimately is reducible to judicial choices. 74 For Richard Posner, pragmatism-- with its absence of the normative--requires individual judges to decide whether particular values are good or bad in relation to community interests and needs. 75 However, Posner concedes that “different judges, each with his own idea of the community's needs and interests, will weigh consequences differently.” 76 To avoid unrepresentative judgments, therefore, Posner argues for the establishment of a diverse judiciary because a diverse “judiciary is more representative, and its decisions will therefore command greater acceptance in a diverse society than would the decisions of a mandarin court.” 77
The representative function of the judiciary is not limited to fact-finding and case outcomes. Even when a litigant is unsuccessful, a judge's ability to empathize with his or her diverse perception and circumstance is essential to the litigant's respect for the court's adverse action. 78 For Ifill, “[t]he core of representation” is “a meaningful opportunity for th[e] representative to respond to the people.” 79 In the special case of judicial representation, judges disproportionately “respond” to issues affecting the liberty, property, and civil rights of African-Americans, women, and other minorities. Therefore, to fulfill the “core of representation,” judges must engage in the diverse and disaffected life stories of these groups. To be sure, the absence of diversity in the judiciary does not necessarily mean that nondiverse judges are unable to adjudicate matters fairly and impartially. However, it is generally difficult for a homogenous judiciary of affluent white men to understand and explain the socially diverse realities of poverty, race, and gender. For instance, a recent study of one federal circuit reveals that female judges are more likely than male judges to observe, report, and intervene when instances of gender-related incivility are directed at women. 80 These women judges, because of their gender *790 experience, are more adept at identifying the norm of gender bias. As Judge Harry Edwards notes, “just as most of my Jewish colleagues have more than a fleeting understanding of anti-Semitism, the Holocaust, and issues surrounding Israel and Palestine, most blacks have more than a fleeting understanding of the effects of racial discrimination.” 81 Thus, a diverse bench is essential to the judiciary's representation of inclusion.
If representation is the heart and soul of judicial elections, then the proponents of this method must address the crisis of minority and gender representation in state courts.
V. Conclusion
The debate between judicial merit selection and popular election purports to be a deliberation on the competing values of independence and accountability. In this discussion, independence and accountability are measured by the distance between judges and popular sentiment. This measurement, however, does not account for a fundamental social reality of American society: judicial diversity is indispensable to our hopes of impartiality and our theories of representation. Judicial independence and judicial accountability, defined phraselogically, represent the social value of promoting impartiality in the administration of justice by seeking representation in the decisionmaking process. In a different world, representation might be achieved by seeking out diverse ideologies without reference to race, gender, or ethnicity. In fact, diversity of thought might be inaccessible where the purveyors of cosmetic or facial diversity do not hold substantive views or experiences that will contribute to the ideological representativeness of the bench. Nonetheless, race, gender, and ethnicity provide accurate proxies for the worldviews of insular and discrete American communities and narratives. These proxies are valuable in our goal to achieve judicial diversity, which is indispensable to judicial independence and accountability.
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Judicial diversity is a symbolic and representative asset for minorities. There is no doubt, diversity benefits minorities. Unlike the paternalistic implication in Brown v. Board of Education 82 that only African-Americans are harmed by segregation, 83 however, the *791 benefits of diversity are not limited to minority communities. In a country where expression is ordained as a First Amendment, the higher truth of deliberative decisionmaking is compromised by viewpoint exclusion, whether intentional or negligent. With that, we conclude with our earlier statement: In the absence of diversity, the goals of obtaining an impartial and representative judiciary are credibly challenged.
Footnotes a1 Judge, North Carolina Court of Appeals; B.A., University of North Carolina at Chapel Hill, 1975; J.D., Marquette University School of Law, 1979; LL.M., University of Virginia School of Law (Judicial Process), 1995. aa1 B.A., Brandeis University, 1998; J.D. Duke University School of Law, 2002.
1 Republican Party v. White, 536 U.S. 765, 777-78 (2002).
2 State Judicial Selection Methods and Their Impact on Diversity on the Bench: Hearings Before the Coalition of Bar Associations of Color 2 (2003) (testimony of Deborah Goldberg, Acting Director, Democracy Program Brennan Center for Justice at NYU School of Law), available at http:// www.brennancenter.org/resources/downloads/CBAC_Testimony.pdf (last visited Apr. 16, 2004). Accord Malia Reddick, Merit Selection: A Review of the Social Scientific Literature, 106 Dick. L. Rev. 729, 741 (2002) (discussing contemporary research revealing that there is “no evidence that women and minorities are more likely to become state appellate judges under merit systems than they are under non-merit systems”).
3 See, e.g., Alex B. Long, “Stop Me Before I Vote for This Judge Again”: Judicial Conduct Organizations, Judicial Accountability, and the Disciplining of Elected Judges, 106 W. Va. L. Rev. 1, 14 (2003) (conceding that “[t]he arguments for and against each selection method have been repeated ad nauseam in academic literature”); Judicial Elections White Paper Task Force, The Case for Partisan Judicial Elections, 33 U. Tol. L. Rev. 393, 396 (2002) (noting that “[t]he choice between appointment and election is often presented as a choice between judicial independence and judicial accountability”).
4 See The Federalist No. 45 (James Madison); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (explaining that the people's “original and supreme will organizes the government, and assigns, to different departments, their respective powers”).
5 Admittedly, the members of the executive and legislative branches take an oath to protect the Constitution. See, e.g., U.S. Const. art. II, § 1, cl. 7 (Presidential oath); U.S. Const. art. VI, cl. 3 (constitutional basis for congressional oath); 5 U.S.C. § 3331 (2004) (statutory language). However, the strong incentive for the executive and legislator to curry favor with the electorate (the popular will) has a documented and deleterious effect on their fidelity to the sovereign will. See, e.g., Frank J. Sorauf, Politics, Experience, and the First Amendment: The Case of American Campaign Finance, 94 Colum. L. Rev. 1348, 1354 (1994) (accepting “that ignoring constitutional issues in either the Congress or White House is [not] anything new”). But cf. Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245, 275 (1995) (arguing that the safeguard of judicial review, in a circular sense, is a root cause for executive and legislative ambivalence to constitutional norms).
6 A few scholars have argued that state judges require less independence than federal judges. See, e.g., Elizabeth A. Larkin, Judicial Selection Methods: Judicial Independence and Popular Democracy, 79 Den. Univ. L. Rev. 65, 68 (2001) (suggesting that “state judges may not require the same degree of independence as federal judges because most civil rights cases are brought in federal court not state court”). However, state judges take an oath to enforce the federal constitution. U.S. Const. art. VI, cl. 3. Furthermore, in theory, Congress could abolish lower federal courts, which would effectively transfer all federal causes of action to state trial courts. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 Duke L.J. 929, 972 (1996).
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7 Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 767 (1995).
8 The Declaration of Independence para. 11 (U.S. 1776).
9 See U.S. Const. art. III, § 1 (establishing the tenure of federal judges); The Federalist No. 78 (Alexander Hamilton).
10 Standing Committee on Judicial Independence, American Bar Association, Report of the Commission on Public Financing of Judicial Campaigns, at vi (July 2001) (quoting Justice Anthony Kennedy, Speech at the ABA Symposium on Judicial Independence), available at http:// news.findlaw.com/hdocs/docs/aba/abajudfinrpt072001.pdf (last visited Apr. 12, 2004).
11 For a summary of the deliberative ebb and flow in the judicial appointments versus judicial elections debate, see Kelley Armitage, Denial Ain't Just a River in Egypt: A Thorough Review of Judicial Elections, Merit Selection and the Role of State Judges in Society, 29 Cap. U. L. Rev. 625, 628-37 (2002).
12 For almost a half-century scholars have documented the strong majoritarian tendencies of Supreme Court decisions. See, e.g., Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279, 293 (1957) (noting that “the Supreme Court is inevitably a part of the dominant national alliance”); William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 Am. Pol. Sci. Rev. 87, 96 (1993) (finding that “a reciprocal relationship appears to... exist [ ] between the ideology of the public mood in the United States and the broad ideological tenor of Supreme Court decisions”).
13 See James Andrew Wynn, Jr., Judging the Judges, 86 Marq. L. Rev. 753, 763-64 (2003).
14 Julius Uehlein & David H. Wilderman, Why Merit Selection is Inconsistent with Democracy, 106 Dick. L. Rev. 769, 769 (2002).
15 Peter D. Webster, Selection and Retention of Judges: Is There One “Best” Method?, 23 Fla. St. U. L. Rev. 1, 10 (1995).
16 Armitage, supra note 11, at 642.
17 Justice at Stake Campaign, States with Elections (2004), at http:// faircourts.org/files/StateswithElections.pdf (last visited Apr. 12, 2004). Of course, the election form varies from partisan and non-partisan to mere retention elections.
18 See Erwin Chemerinsky, Supreme Court Review, 51 U. Kan. L. Rev. 269, 286 (2003).
19 See Pennsylvania: Judicial Elections Get a Little Looser, Eyes on Just. (Justice at Stake Campaign, Wash. D.C.), Dec. 17, 2003, available at http://www.faircourts.org/files/EyesonJusticeDec17.pdf (last visited Apr. 12, 2004); see also Adam R. Long, Keeping Mud Off the Bench: The First Amendment and Regulation of Candidates' False and Misleading Statements in Judicial Elections, 51 Duke L.J. 787, 788-89 (2001) (noting the increased number of attack advertisements in judicial elections that negatively depict the views of opposing candidates).
20 See, e.g., Mark A. Behrens & Cary Silverman, The Case for Adopting Appointive Judicial Selection Systems for State Court Judges, 11 Cornell J.L. & Pub. Pol'y 273 (2002) (criticizing the current state of affairs in judicial elections--in spite of efforts to reform campaign finance and provide certain checks on campaign speech--and recommending that states shift to an appointive system).
21 See Michael J. Gerhardt, Judicial Selection as War, 36 U.C. Davis L. Rev. 667 (2003).
22 See Gerald Walpin, Take Obstructionism Out of the Judicial Nominations Confirmation Process, 8 Tex. Rev. L. & Pol. 89, 94-96, 100-03 (2003).
23 Wynn, supra note 13, at 760; see also Behrens & Silverman, supra note 20, at 276 (arguing that “[a]ppointive systems are not subject to the problems inherent to an elected judiciary [such as] the appearance of impropriety caused by judges taking money from those who appear before them [and] the threat to judicial independence resulting from a judge's dependence on campaign contributions and party support”); Thomas R. Phillips, Comment, 61 Law & Contemp. Probs. 127, 136-37 (1998)
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(noting the concern that judicial campaign contributions will render judges unable to resist the difficulties that a judge faces through friendships and associations that come before the court).
24 See, e.g., Edward M. Chen, The Judiciary, Diversity, and Justice for All, 91 Cal. L. Rev. 1109, 1111-14 (2003) (detailing the statistically significant absence of minority judges in the California and federal judiciaries). Although racial, ethnic, and gender diversity in the judiciary is accelerating, neither the state nor federal judiciary is as diverse as our society. As of 1997, the research revealed that only 3.8% of state court judges and only six percent of federal judges were African-American. See Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts, 39 B.C. L. Rev. 95, 95, 99 n.19 (1997) [hereinafter Ifill, Judging the Judges]. Similarly, research indicated that, as of 1999, only two percent of state courts judges were Hispanic. See Mark S. Hurwitz & Drew Noble Lanier, Women and Minorities on State and Federal Appellate Benches, 1985 and 1999, 85 Judicature 84, 89 (2001). Furthermore, only twenty percent of the federal judiciary, and twenty-six percent of the state judiciary, were comprised of women. See Commission on Women in the Profession, American Bar Association, Current Glance of Women in the Law (2001), available at http://www.abanet.org/women/glance.pdf (last visited Apr. 12, 2004); see also Susan Maloney Smith, Diversifying the Judiciary: The Influence of Gender and Race on Judging, 28 U. Rich. L. Rev. 179, 179-82 (1994) (detailing the statistically significant absence of women on state judiciaries).
25 See Smith, supra note 24, at 189; Kenneth L. Karst, Judging and Belonging, 61 S. Cal. L. Rev. 1957, 1957 (1988).
26 Todd D. Peterson, Studying the Impact of Race and Ethnicity in the Federal Courts, 64 Geo. Wash. L. Rev. 173, 176 (1996); see also Ming W. Chin, Fairness or Bias: A Symposium on Racial and Ethnic Composition and Attitudes in the Judiciary, 4 Asian L. J. 181 (1997) (discussing the perception of bias).
27 Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 Wash & Lee L. Rev. 405, 469 (2000) [hereinafter Ifill, Racial Diversity on the Bench]. Cultural narratives are “‘the stories that are familiar in our culture; stories about how things happen and how things are.”’ Id. at 439 (quoting Peggy Cooper Davis, The Proverbial Woman, 48 Rec. Ass'n B. City N.Y. 7, 11 n.15 (1993)). These narratives represent the collective memory, and social and political realities of community. Cultural narratives function at a deep psychological level because they “contain the accumulated historical account of that community's relationship to other communities and express the community's values.” Ifill, Racial Diversity on the Bench, supra, at 439. Invariably, cultural narratives are divided into “master narratives” and “counter-narratives.” Master narratives are not often recognized as narratives--instead a master narrative is the internalized norms of the community as expressed in law and mores. Counter-narratives are the narratives of marginalized groups, like African-Americans and women, which create “different perspectives” generally unavailable to “groups outside that particular [realm of] experience and reality.” D. Soyini Madison, Oral Narratives Performance, and Black Feminist Thought, in Exceptional Spaces: Essays in Performance and History 319, 338 (Della Pollock ed., 1998). These narratives “represent a piece of a greater body of understanding largely unspoken and unheard.” Rivka S. Eisner, And so There are Pieces: Cuttings from the Life-Memories of a Daughter of Vietnam (2002) (unpublished Masters thesis, University of North Carolina) (on file with authors). However, as Dr. Madison notes, “[t]o argue that black women create distinct theories and interpretations is not to essentialize black women as on monolithic group,” but rather, to recognize “the fact that black women live a shared history.” Madison, supra, at 338.
28 See Model Code of Judicial Conduct, Terminology (2003) ( “‘Impartiality’ or ‘impartial’ denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.”), available at http:// www.abanet.org/judind/judicialethics/amendments.pdf (last visited Apr. 12, 2004).
29 Republican Party v. White, 536 U.S. 765, 778 (2002).
30 Benjamin Cardozo, The Nature of the Judicial Process 168 (1921).
31 See An American Dilemma, 7 Pub. Persp. 19, 20 (Feb.-Mar. 1996) (revealing that sixty-eight percent of African-Americans, as compared to thirty-eight percent of Caucasians, believe racism is a big problem).
32 Id. at 19 (indicating that sixty-six percent of African-Americans are willing to pay more taxes for more services as compared to thirty-five percent of Caucasians).
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33 See Andrea Stone, Politics of Race Taking on More Subtle Shades, USA Today, Nov. 2, 1994, at 8A (contending that African- Americans stand alone in their desire for an expansive federal government), available at 1994 WL 11072652.
34 Leslie Espinoza & Angela P. Harris, Afterward: Embracing the Tar-Baby--LatCrit Theory and the Sticky Mess of Race, 85 Cal. L. Rev. 1585, 1601 (1997); see also Ifill, Racial Diversity on the Bench, supra note 27, at 419-22 (2000) (discussing and synthesizing previous work on the shared identity of African-Americans).
35 Karst, supra note 25, at 1957.
36 Kevin L. Lyle, The Gatekeepers: Federal District Courts in the Political Process 237 (1997); see also Harry T. Edwards, Race and the Judiciary, 20 Yale L. & Pol'y Rev. 325, 328 (2002) (noting that “the long history of racial discrimination and segregation in American society” makes it “safe to assume that a disproportionate number of black [judges] grow up with a heightened awareness” of the racial issues related to equal protection, discrimination, and the criminal law).
37 Elaine Martin, Men and Women on the Bench: Vive la Difference?, 73 Judicature 204, 207 (1990). Accord Kimberly A. Lonsway et. al, Understanding the Judicial Role in Addressing Gender Bias: A View from the Eighth Circuit Federal Court System, 27 L. & Soc. Inquiry 205, 216-19 (2002) (finding that female judges are more likely than male judges to observe and report instances of gender-related incivility directed at women). Furthermore, Lonsway's study reveals that eighty percent of female judges in the Eighth Circuit, as compared to 32.5% of male judges, report experiencing incivility directed at them from fellow judges. Id.
38 Nancy E. Crowe, Diversity on the Federal Bench: The Effects of Judges' Sex and Race on Judicial Decision Making on the U.S. Court of Appeals, 1981-1996 (1999) (unpublished Ph.D. dissertation, University of Chicago) (on file with authors); see also Theresa M. Beiner, The Elusive (But Worthwhile) Quest for a Diverse Bench in the New Millennium, 36 U.C. Davis L. Rev. 597, 606 (2003) (discussing Crowe's study). But see Jennifer A. Segal, Representative Decision Making on the Federal Bench: Clinton's District Court Appointees, 53 Pol. Res. Q. 137 (2000) (discussing research indicating that the race and gender of the adjudicator is statistically insignificant to decisionmaking), available at 2000 WL 23474691.
39 Smith, supra note 24, at 183.
40 Ifill, Racial Diversity on the Bench, supra note 27, at 423.
41 Id. at 424; see also Barbara J. Flagg, “Was Blind But Now I See”: White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953, 957 (1993) (describing how society regards whiteness as a transparency).
42 Ifill, Racial Diversity on the Bench, supra note 27, at 469.
43 Republican Party v. White, 536 U.S. 765, 775 (2002).
44 Id. at 777-78.
45 Id. at 776 (emphasis added).
46 See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530-31 (1975).
47 Id. at 531.
48 Id. at 530 (quoting Thiel v. S. Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)).
49 Ifill, Judging the Judges, supra note 24, at 120.
50 Ifill, Racial Diversity on the Bench, supra note 27, at 432-33.
51 Beiner, supra note 38, at 617.
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52 See supra note 24 and accompanying text.
53 See supra note 25 and accompanying text..
54 Karst, supra note 25, at 1962.
55 See, e.g., A. Leon Higginbotham, Jr., Seeking Pluralism in Judicial Systems: The American Experience and the South African Challenge, 42 Duke L.J. 1028, 1041 (1993) (arguing that “[t]he danger of a homogenous court is that there is no ‘outsider’ within the court to challenge the biases the dominant group accepts as ‘self-evident’ truths”).
56 See, e.g., Uehlein & Wilderman, supra note 14, at 769; Webster, supra note 15, at 16 n.78 (noting that the proponents of election view appointments “not simply [as] undemocratic but essentially anti-democratic.... [T]he [appointed] judges represent[ ] everything that the old order had been-- elitism, corruption, arrogance.”); Lawrence Landskroner, An Unmeritorious Way to Select Judges, Plain Dealer (Cleveland), Jan. 29, 1994, at 7B (arguing that the advocates of judicial appointment “assume that the voting public is incapable of selecting qualified judges” and that “[t]his is a dangerous and undemocratic premise that would place the selection of judges in the hands of a privileged few”), available at 1994 WL 7222966.
57 Learned Hand, The Bill of Rights 73-74 (1958).
58 Id. at 70.
59 See National Center for State Courts, Call to Action: Statement of the National Summit on Improving Judicial Selection 7 (expanded ed. 2002), available at http://www.ncsconline.org/D_Research/CallToActionCommentary.pdf (last visited Apr. 13, 2004).
60 See Chisom v. Roemer, 501 U.S. 380, 383-84 (1991).
61 See Sugarman v. Dougall, 413 U.S. 634, 647 (1973).
62 See Gregory v. Ashcroft, 501 U.S. 452, 466-67 (1991).
63 Republican Party v. White, 536 U.S. 765, 784 (2002).
64 Id.
65 Luke Bierman, Beyond Merit Selection, 29 Fordham Urb. L.J. 851, 853 (2002).
66 See Ifill, Judging the Judges, supra note 24, at 95, 99; Hurwitz & Lanier, supra note 24, at 87-90.
67 Stewart G. Pollock, The Art of Judging, 71 N.Y.U. L. Rev. 591, 594 (1996).
68 Ifill, Racial Diversity on the Bench, supra note 27, at 475 (quoting Jerome Frank, Law and the Modern Mind, at xiii (1949)). But see Kenneth S. Klein, Unpacking the Jury Box, 47 Hastings L.J. 1325, 1355 (1996) (indicating that appellate courts are systematically displacing the jury and trial courts' fact-finding function).
69 Ifill, Racial Diversity on the Bench, supra note 27, at 468-69.
70 Byron R. White, A Tribute to Justice Thurgood Marshall, 44 Stan. L. Rev. 1215, 1216 (1992).
71 Karst, supra note 25, at 1965.
72 Professor Ifill argues that minority judges do not suffer from the same narrative blind spot, as applied to white litigants, because minority “judges regardless of...background will...confront and engage the white community perspectives in order to successfully navigate their professional lives as lawyers and often politicians.” Ifill, Racial Diversity on the Bench, supra note 27, at 470.
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73 Edwards, supra note 36, at 329.
74 Richard A. Posner, Law, Pragmatism, and Democracy 71 (2003).
75 Id.
76 Id.
77 Id. at 120.
78 When diverse individuals share counter-narratives in courts of law-- the institutional enforcers of the master narrative as a norm--they are “more exposed and vulnerable than the scientist in pursuit of...grand theory.” Dwight Conquergood, Storied Worlds and the Work of Teaching, 42 Comm. Educ. 337 (1993). For Conquergood, “narrative knowing recalls and recasts experiences into meaningful signposts.” Id. In a court, the retelling is “full of risk” because the nondiverse judiciary is unlikely to legitimate the stories and perception of diversity.
79 Ifill, Judging the Judges, supra note 24, at 136.
80 Lonsway, supra note 37, at 216-19.
81 Edwards, supra note 36, at 32.
82 347 U.S. 483 (1954).
83 What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision 196 (Jack M. Balkin ed., 2001) (dissenting opinion of Derrick Bell). 67 ALBLR 775
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 13 Diverse Federal trial judges are more likely to rule in favor of minorities and women in sex and racial discrimination cases.
blogs.lse.ac.uk/usappblog/2016/09/14/diverse-federal-trial-judges-are-more-likely-to-rule-in-favor-of-minorities-and-women-in-sex-and-racial-discrimination-cases/
9/14/2016
Since 2009, 62 percent of President Obama’s Federal trial court judge selections have been racial and ethnic minorities and/or females; he now holds the record for having the highest percentage of female and racial minority trial judges appointed by a US president. But do these new judges work to represent female and racial minority causes? In new research which studies employment discrimination cases filed in the federal courts, Christina L. Boyd finds that female judges are about 15 percent more likely to find in favor of the plaintiff than male judges, and that black judges are 39 percent more likely than white judges to rule in favor of the plaintiff in race discrimination decisions.
Since taking office in 2009, President Obama has successfully appointed over 90 racial and ethnic minority and 100 female judges to the federal trial courts (“US district courts”). Appointed to life tenure positions under Article III of the Constitution, these newly selected judges make up over 62 percent of Obama’s trial court selections. For comparative perspective, Figure 1 depicts the breakdown of diverse judicial appointments from President Nixon through President Obama. Obama’s record stands out for having the highest percentage of female and racial minority trial judges appointed by a US president.
Figure 1 – Diversity Characteristics of Confirmed Federal District Court Judges
Note: Data compiled from the Federal Judicial Center’s Biographical Directory of Federal Judges. 1/3 The Obama Administration argues that these new judges serve as descriptive representatives of diverse communities, producing a judiciary that “resembles our nation,” instills “confidence in our justice system,” and creates “role models for generations of lawyers to come.” But will these diverse trial judges also behave differently on the bench – as substantive representatives for female and racial minority causes – from their white and male judicial colleagues?
To study this, I examine the behavior of federal district judges deciding sex and race employment discrimination cases filed in the federal courts by the Equal Employment Opportunity Commission (EEOC) from 1997 to 2006. The data for this project come from the EEOC Litigation Project. Rather than focusing on the final case winner in this matters, which in trial courts can be decided by a judge, jury, or the parties themselves (via a compromised settlement), I instead look at trial judges’ decisions on motions like those to dismiss and motions for summary judgment. Most non-criminal trial court cases develop through motions practice, with the judge’s decision to grant or deny a party’s motion having critical implications for how the case will proceed.
As a recent example of a district court dispositive motion, in the ongoing class-action lawsuit accusing Donald Trump and Trump University of defrauding students, US District Judge Gonzalo Curiel denied Donald Trump’s motion for summary judgment. Had Trump’s motion been granted in full, the case would have ended as a Trump victory. With the motion denied, the case continues toward trial.
After accounting for other relevant judicial, case, and legal factors that might affect judicial decision making, statistical analysis reveals that the gender and race of a trial judge frequently affects whether there is a pro-plaintiff outcome in employment discrimination-related motions. The left side of Figure 2 displays the results for judge gender. As it reveals, female judges are approximately 0.15 – or 15 percent – more likely to find in favor of the plaintiff than male judges when deciding sex discrimination motions. However, as indicated by the large horizontal confidence interval overlapping 0 in Figure 2’s left panel, there is no difference between male and female trial judges when deciding race discrimination motions.
Figure 2 – Judge Gender and Race Effects on the Probability of a Pro-Plaintiff Ruling
Figure 2’s right panel indicates that judge race has an even stronger effect on motion outcomes. Indeed, as the figure shows, black judges are 39 percent more likely than white judges to rule in favor of the plaintiff in race discrimination motion decisions and 32 percent more likely than white judges to rule in favor of the plaintiff when deciding sex discrimination motions.
Together, these results indicate that even though all trial judges – white, minority, male, and female – undergo the same professionalization, socialization, and training before joining the bench, they do not all make the same 2/3 decisions. Rather, we see a significant amount of diversity-based substantive representation. Female judges are more likely than male judges to rule in favor of litigants who believe they were discriminated against in the workplace because of their sex. Black judges are more likely than white judges to rule in favor of plaintiffs who were discriminated at work based on their race or their sex.
These findings have important implications for the federal judiciary. Federal district courts now decide nearly 400,000 cases a year. This far exceeds those decided by US Courts of Appeals (<60,000 cases) and the US Supreme Court (~80 cases). With an ever-growing number of diverse judges on the federal bench thanks to President Obama’s appointments, there will almost certainly be an impact on the resulting policy and law that will affect a tremendous number of people and cases.
This article is based on the paper “Representation on the Courts? The Effects of Trial Judges’ Sex and Race” published in Political Research Quarterly.
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About the author
Christina L. Boyd – University of Georgia Christina L. Boyd is an Associate Professor in the Department of Political Science at the University of Georgia and a lawyer. Her research focuses on the empirical examination of judges and litigants in federal courts. Her scholarship has been published in journals such as American Journal of Political Science, Political Research Quarterly, and Journal of Law, Economics, and Organization and has been funded by the National Science Foundation.
CC BY-NC 3.0 2015 LSE USAPP
3/3
DIVERSITY AND THE LAW
Jenny Rivera*
Thank you Dean Eric Lane for inviting me to deliver this year’s Howard and Iris Kaplan Memorial Lecture. The goal of this lecture series is to bring jurists to address the community on important and timely legal issues. A worthy goal indeed, of which I am honored to be invited to further by my comments this afternoon. As I was considering what might be an appropriate topic, I thought about the variety of legal issues that our high court decides. I thought a discussion on procedure might be of interest because many a lawyer has failed to appreciate, to the detriment of the client, the scope of our jurisdiction as well as our preservation rules. Perhaps a discussion on some arcane aspect of appealability or the mootness doctrine would stir intellectual curiosity and provide a basis for future conversations. I eventually settled on a very different topic, but I consider it no less important than the areas mentioned above. Rather than address what might otherwise appear to be the weeds in which we toil as jurists, I have decided to discuss diversity within the legal profession, and specifically, the judiciary. I consider this topic timely and of great concern to the legal profession and the greater society because it requires us to think critically about expectations and hopes for the future of our democratic system of government. The changing demographics of both the profession and our population demand that we approach this issue with an eye to a candid and open dialogue about what these undeniable changes mean for our judiciary, our justice system, and the rule of law. Diversity, of course, is a regular topic of discussion across a broad spectrum of institutions and professions. It is discussed in academic
* Associate Judge, New York State Court of Appeals. The opinions expressed in this Article are the author’s own and do not reflect the views of the New York State Court of Appeals or the New York State Unified Court system. This Article is adapted from the Howard and Iris Kaplan Memorial Lecture, delivered by Judge Rivera on November 6, 2014, at the Maurice A. Deane School of Law at Hofstra University.
1271 1272 HOFSTRA LAW REVIEW [Vol. 44:1271 circles, legal circles, among politicians, the military, and within the private business sector. For some, talking about diversity is part of the office culture. It can be a controversial topic charged with emotional components, such as who should share in the resources of our country, be offered admission to a particular school, or hold a particular type of job. It can be part of a thought exercise, such as imagining the impact of “sameness” and “difference” on society and individuals. I cannot explore all of the permutations of this topic that by necessity (and experience) are implicated by the diversity of the concept of “diversity.” Instead, I provide research, data, and the attendant considerations inherent to a discussion of diversity in the legal profession. Be forewarned that I do not speak as to my own conclusions. Rather, I share a variety of the current thoughts on this topic. My hope is to inform even those well versed on the issues and, perhaps, stimulate future discussion, slightly moving the dial towards a greater consideration of this subject. Let us begin with what diversity means. Diversity is defined as “the quality or state of having many different forms, types, ideas” and “the state of having people who are different races or who have different cultures in a group or organization.”1 The term dates back to the fourteenth century to the word “diverse,”2 which is defined as “differing from one another.”3 Similarly, Black’s Law Dictionary defines diversity as “[e]thnic, socioeconomic, and gender heterogeneity within a group” and “the combination within a population of people with different backgrounds.”4 It also references our Fourteenth Amendment jurisprudence and states that the U.S. Supreme Court “has found diversity in education to be a compelling government interest.”5 I have no quarrel with these definitions, but they are quite general and only get us so far because diversity has meant a particular type of difference—a way of thinking about identity. It has usually focused on racial, ethnic, and gender characteristics. For this discussion, I adopt these same identifiers of self with two important additions, which are not based on physical characteristics but may be influenced by one’s identity. I add to today’s working definition diversity of professional experience and socioeconomic status.
1. Diversity, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/diversity? utm_campaign=sd&utm_medium=serp&utm_source=jsonld (last visited July 24, 2016). 2. Id. 3. Diverse, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/diverse (last visited July 24, 2016). 4. Diversity, BLACK’S LAW DICTIONARY (9th ed. 2009). 5. Id. (citing Grutter v. Bollinger, 539 U.S. 306, 327-28 (2003)). 2016] DIVERSITY AND THE LAW 1273
Definition without context is, however, only half the story. Diversity must be considered against the backdrop of its historical roots, which I describe as a movement to ensure that those disadvantaged by legally-sanctioned and social inequality have an equal opportunity to participate in society and enjoy the benefits of the fruits of their own and their ancestors’ labor. Diversity efforts may reflect attempts to remedy past injuries. While victims of some of the most pernicious wrongs may no longer live to collect compensation, or otherwise benefit from the sacrifices made in the past, diversity remedies inure to the benefit of those who today experience the legacy of former legalized oppression. Any serious consideration of the concept of “diversity” requires an understanding of the purpose for diversification and critical analysis of its application to the legal profession and our system of justice. This alone requires debate and discourse. For the purposes of this discussion, I will simply assert that there appear to be three publicly, generally recognized goals of diversity. All three are transformative in one way or another, and as in all things human, they are limited in the extent to which they effectuate change. Even assuming some other obvious purpose, we can still use this short list of goals as a working basis for our exploration of diversity. The first goal is to establish a profession that represents the broad diversity of our population. This is change grounded in demographics and data. We accomplish this goal by simply changing the percentages of those in the profession who represent any particular group to match (or approximate) their number in the broader society. This has the attraction of simplicity, even if it seems a rather unsophisticated approach to a complex and contested issue. The second goal in many ways justifies the effort necessary to achieve the first goal, for this second goal relies on diversity as proof that our legal system is purged of barriers based on race, ethnicity, gender, and other unacceptable forms of categorizing individuals. Supported by research and factual analysis of the impact of heterogeneity on individual and group behavior, this goal relies on the presumption that diversity minimizes the potential for bias and reduces the deployment of stereotypes as a basis for action and decision-making. That is to say, as more of the historical targets of bias are present in the workforce, hold leadership positions, and are treated as equals under the law, co-workers, supervisors, and employers will adjust their behavior to comport with these demonstrated examples of the values of equality. A corollary to this goal is that a system purged of bias results in the selection of highly qualified individuals who are chosen based on merit. 1274 HOFSTRA LAW REVIEW [Vol. 44:1271
The third goal of diversity is to engender and increase public confidence in the administration of justice and create an environment supporting a popular belief that the system is fair. This strikes me as the most misunderstood of the goals described because it requires an understanding and an acceptance of an outsider’s perspective to the law. It requires us to recognize that some members of our population believe there can be no justice if they do not see someone like themselves in positions of power and influence, such as those held by lawyers and judges. It may be difficult to accept that this perspective applies to legal actors because in our profession we say the rule of law guides us—not prejudice, not bias, and not commonality of economic position. So, this is where the rubber hits the road. It must be recognized that even if a profession of homogenous individuals6 could mete out impartial justice, its very existence undermines the goal of equality under the law. Justice cannot be blind if it is imparted by a group that overwhelmingly shares a common experience and appearance to the exclusion of others. In 2006, John R. Dunne, as vice chair of the Committee for Modern Courts in New York, testified at a public forum on judicial diversity held by the minority leader of the New York State Senate. Advocating for the governor’s commitment to diversity on the New York State Court of Appeals, Dunne stated that “[w]here the judiciary does not reflect the diversity of the community it serves, public confidence in the judiciary is undermined.”7 He then referenced a survey sponsored by the Commission to Promote Public Confidence in Judicial Elections and conducted by the Marist Institute for Public Opinion in which seventy- one percent of all registered voters in New York State agreed that New York State judges are fair and impartial, a sentiment shared by only fifty-one percent of African American voters.8 The New York State Bar Association has also relied on similar statistics, adding “that only sixty percent of Latino voters . . . in New York State trust our state’s judges to be fair and impartial.”9 Descriptive representation has great symbolic importance. Its impact on racial and ethnic groups cannot be ignored. This is also true for women. According to a 2011 report from the Center for Women in Government and Civil Society (“CWGCS”) at the Rockefeller College
6. Defined here as homogenous based on a small number of characteristics. 7. Judicial Diversity, FUND FOR MOD. CTS., http://moderncourts.org/programs-advocacy/ judicial-diversity (last visited July 24, 2016). 8. Id. 9. JUDICIAL SECTION, N.Y. STATE BAR ASS’N, JUDICIAL DIVERSITY: A WORK IN PROGRESS 1 (2014). 2016] DIVERSITY AND THE LAW 1275 of Public Affairs and Policy, State University of New York at Albany, the empirical literature establishes that female representation in elected and appointed offices, including the judiciary, matters.10 The report, in pertinent part, provides: Descriptive representation, or having a number of women judges who are representative of the population they serve is believed to be of critical symbolic and material importance, since it generates group empowerment and leads to greater confidence in the judicial system and in government in general. It has been shown that descriptive representation can send signals that women (and minorities) are respected and have a place in government. These messages can increase trust, improve levels of participation and interest, enhance perceived government legitimacy, and combat political alienation of under-represented groups.11 Further, I would add a fourth goal of diversity, which continues to be researched, debated, and contested. This goal asserts that diversity serves as a proxy to establish a system of justice structurally and analytically sounder than the current system by enhancing the decision- making process. In other words, diversity not only holds the promise of individual access in a system marked by equal opportunity, which eventually will result in numerical balance or proportionality, but also ensures a better system because it is based on heterogeneity or difference, rather than homogeneity or sameness. The arguments in support of diversity as a vehicle for improving decision-making within our legal system are based, in part, on two hypotheses. One hypothesis asserts that there must be a certain number of individuals representative of a minority class in order for those individuals to feel comfortable and be taken seriously within the larger group. In a sense, it allows for their voices to develop and be heard. Researchers note that one-third the membership of a group constitutes a critical mass, which, in the context of female representation, “is defined as the point at which the presence of women becomes significant enough to instigate change in the stereotypical conception of gender roles.”12 However, critical mass is a concept that “has been applied in a wide variety of contexts and settings, though all applications share a common trait: the notion that relative numbers matter in terms of the dynamics of demographically heterogeneous groups.”13
10. DINA REFKI ET AL., CTR. FOR WOMEN IN GOV’T & CIVIL SOC’Y, WOMEN IN FEDERAL AND STATE-LEVEL JUDGESHIPS 1 (2011). 11. Id. (citations omitted). 12. Id. at 8. 13. Lissa Lamkin Broome et al., Does Critical Mass Matter? Views from the Boardroom, 34 1276 HOFSTRA LAW REVIEW [Vol. 44:1271
The other hypothesis purports that improved decision-making is inherent in a diverse group, based on the ability to draw on experiences that vary among individuals of different professional and personal backgrounds. The data exploring this hypothesis appears somewhat mixed. Some data supports the argument that judges of different races, ethnicities, and genders may reach different conclusions. Some data finds no support for such a conclusion. Some data finds limited areas in which there is a statistically significant difference in decision-making among judges of different racial groups and between men and women. Below, examples of this last research category are referenced briefly because studies have noted some anecdotal support for the outcomes found in this data. The Harvard Journal of Racial and Ethnic Justice published an article in 2012, setting forth a recent empirical study of all reported racial harassment cases brought under Title VII of the Civil Rights Act of 196414 in the federal district courts of six representative circuits between 2002 and 2008 (a total of 473 opinions), that found the race of judges and the race, but not the gender, of plaintiffs has a statistically significant impact on judicial decision-making in employment discrimination cases.15 Specifically, the data showed that African American plaintiffs have substantially lower success rates than Latino, Asian, and White plaintiffs, and that Latino16 plaintiffs have the highest success rates of the groups.17 The data also showed that the majority of cases were decided by White judges—no surprise given that the majority of judges are Caucasian males—and further found that plaintiffs had comparatively worse outcomes when appearing before White and Latino judges than before African American judges.18 Plaintiffs were successful in 42.2% of the cases before African American judges, against a baseline success rate of 22.2%, and compared with a success rate of 20.6% before White judges and 15.6% before Latino judges.19 Analyzing the interaction of the judges’ and plaintiffs’ race, the study made three findings:
SEATTLE U. L. REV. 1049, 1051 (2011). 14. 42 U.S.C. § 2000e-2(a)(1) (2012). 15. Pat K. Chew & Robert E. Kelley, The Realism of Race in Judicial Decision Making: An Empirical Analysis of Plaintiffs’ Race and Judges’ Race, 28 HARV. J. RACIAL & ETHNIC JUST. 91, 96 (2012). 16. This Article uses the term “Latino” throughout, except where referencing a direct quotation. 17. Id. at 99-101. 18. Id. at 103-04. 19. Id. 2016] DIVERSITY AND THE LAW 1277
First and most notably, Hispanic plaintiffs succeed at the highest rates in front of every judge group (African American judges 60%; Hispanic judges 50%; White judges 32.5%), which helps account for their overall success rate of 37% . . . . Second, White and African American judges rule much more favorably for plaintiffs of their own race (same- race pairings) than of another race, with White judges and White plaintiffs at 28%; and African American judges and African American plaintiffs at 47%. Third, different-race pairings (excluding Hispanic plaintiffs who are treated most favorably by all judges) have success rates lower than the baseline (White judges and African American plaintiffs at 19%; African American judges and White plaintiffs at 17%; Hispanic judges and White plaintiffs at 0% or African American plaintiffs at 9.5%).20 This study confirmed earlier results by the same researchers who stated that the results of their most recent study “do not appear to support the formalism model of judicial decision-making, where judges’ legal analyses are considered largely a mechanical and value-neutral exercise.”21 Rather, the results indicated that “judicial decision-making appears to be a more complicated, and human activity where judges’ backgrounds, including their race and their conscious or unconscious worldview of other races, affect case outcomes.”22 They cautioned, as other researchers have warned, that “judges typically exercise discretion in a principled fashion, not in a strategic self-interested way, thereby protecting judicial legitimacy.” After all, “[judges] are not ‘merely politicians in robes.’”23 As a consequence, “consistent with a ‘principled discretion’ version of a realism model of judicial decision-making, it appears that the life experiences of judges of different races result in different relevant ‘pools of information’ that have real-world consequences for plaintiffs of different races in racial harassment cases.”24 The researchers and study authors concluded that “[a] more integrated judiciary that is representative of American society would expand judicial perspectives, prompt a more deliberative process, and help assure more accountable and responsive decision-making for ‘citizens of all walks of life,’ thus facilitating a more fully- functioning democracy.”25
20. Id. at 108. 21. Id. at 113. 22. Id. 23. Id. (quoting James L. Gibson & Gregory A. Caldeira, Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?, 45 LAW & SOC'Y REV. 195, 214 (2011)). 24. Id. at 115. 25. Id. 1278 HOFSTRA LAW REVIEW [Vol. 44:1271
In a 2010 study of the causal effects of sex on judging, researchers examined thirteen legal areas ranging from disability law to sex discrimination, to analyze whether a judge’s gender affected decision- making.26 The researchers found that only in sex discrimination cases did sex impact the outcomes. They stated: [T]he probability of a judge deciding in favor of the party alleging discrimination decreases by [ten] percentage points when the judge is a male. Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant. More generally, [the] findings are consistent with informational accounts of gendered judging and are inconsistent with several others.27 The researchers subjected a preexisting data set, developed by Cass Sunstein and his co-authors for a book published in 2006, to a propensity score matching methodology.28 Utilizing this expansive data base, the researchers described several empirical results. They found that “almost without exception, female and male judges do not reach different decisions” within the thirteen legal subject areas.29 The one exception they identified was that “[f]emale and male judges differ significantly in their treatment of Title VII sex discrimination suits. On average, the probability of female judges voting in favor of the plaintiff in a sex discrimination case is around 0.10 higher than it is for male judges—a difference with meaning.”30 Notably, the researchers also found that while male judges serving on a mixed-sex panel (a panel with female judges) did not vote differently than male judges on all-male panels, with one exception.31 As was the case with the data on the individual effects on judging, the data on the effects on panels showed that “[f]or males at relatively average levels of ideology, the likelihood of a liberal, pro-plaintiff vote increases by almost [eighty-five percent] when sitting with a female judge.”32 In light of these results, the researchers concluded: [T]he presence of women in the federal appellate judiciary rarely has an appreciable empirical effect on judicial outcomes. Rarely, though, is
26. Christina Boyd et al., Untangling the Causal Effects of Sex on Judging, 54 AM. J. POL. SCI. 389, 397 (2010). 27. Id. at 397. 28. Id.; see CASS SUNSTEIN ET AL., ARE JUDGES POLITICAL?: AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY (2006). 29. Boyd et al., supra note 26, at 401. 30. Id. 31. Id. at 402. 32. Id. at 406. 2016] DIVERSITY AND THE LAW 1279
not never. . . . [W]e observe consistent and statistically significant individual and panel effects in sex discrimination disputes: not only do males and females bring distinct approaches to these cases, but the presence of a female on a panel actually causes male judges to vote in a way they otherwise would not—in favor of plaintiffs. Characterized this way, [the] results are consistent with an informational account of gendered judging; they also serve to reinforce other studies that identified gender effects in the employment area.33 The data on judicial decision-making has also been recognized by the New York State Bar Association, as provided in its 2012 report: No one can seriously question that the life experiences of people differ, and that those differences impact individuals’ views and perceptions. Men and women, and Caucasians and minorities, do not always view the world in the same way. It is this common sense premise that has shaped the increasing body of law protecting defendants’ fundamental right to a true jury of their peers. Every day judges apply the law to the facts or real life experiences of the litigants appearing before them; it is only logical that judges’ own life experiences may color their perceptions of those facts. Since more cases are decided by judges than juries, it is just as critical to ensure that the state’s judiciary reflects the population it serves. . . . There is a value in symbolic representation—seeing someone who looks like you on the bench. Yet it is more than just the perception of fairness that impacts judicial efficacy. It is the actual quality of justice that suffers when judicial diversity is lacking. Although we know this intuitively, empirical studies have also confirmed that diverse judges decide certain types of cases differently than their white male colleagues and that minority and female judges on appellate benches can also influence the decisions of their colleagues and improve the collective decision-making process.34 These ideas are longstanding. In 1992, the Task Force on Minority Representation on the Bench (commonly referred to as the Task Force on Judicial Diversity), established by executive order35 of then-Governor Mario M. Cuomo, concluded that “diversity is vital because it is required by our constitutional and legal commitment to inclusiveness and because it greatly improves the ability of the judiciary to fulfill its function.”36 The Task Force identified two key areas in which diversity
33. Id. at 406. 34. JUDICIAL SECTION, supra note 9, at 1-2. 35. N.Y. COMP. CODES R. & REGS. tit. 9, § 4.149 (1991). 36. N.Y. TASK FORCE ON MINORITY REPRESENTATION ON THE BENCH, EXEC. OFFICE OF THE GOVERNOR, TASK FORCE ON JUDICIAL DIVERSITY REPORT 5 (1992). 1280 HOFSTRA LAW REVIEW [Vol. 44:1271 makes a difference. First, and according to the Task Force the “most important” area, was the “improve[d] public confidence in the fairness of the justice system,” which thereby “strengthens the [r]ule of [l]aw.”37 Second, is the “improve[d] . . . quality of judicial decisions.”38 The latter is accomplished by expanding the experience of the bench. As the Task Force stated: For the law to develop in light of the experience of the whole society, it is better if the bench is pluralistic, diverse and inclusive. The experience of men and women, whites and racial minorities, rich and poor, advantaged and disadvantaged all differ, as do the experiences of persons of varying national origin, sexual preference or disability status. A judiciary with jurisdiction over each and every person should find wisdom in all those experiences and thereby keep the law rooted in the experience of our whole society. Although this can happen without the diversity of the bench being exactly proportional to the diversity of the population, the judicial experience factor will more accurately reflect the experience of the whole society if the diversity is real and substantial.39 The impact of gender is similarly recognized and no less meaningful, as supported by the CWGCS report: “[R]esearch has documented that women’s descriptive representation on elected and appointed bodies can be correlated to substantive representation. Women’s unique experiences as women are believed to inform their interpretation and shape the lens with which they make decisions as judges especially in cases where women’s experiences are central.”40 Justice Shirley S. Abrahamson appointed in 1976 as the first woman on the Wisconsin Supreme Court has said: I think that when people ask if “being a woman” brings anything special to the court, they really are asking whether there is any special sensitivity that a person’s background might bring to the court. My gender—or, more properly, the experiences that my gender has forced upon me—has, of course, made me sensitive to certain issues, both legal and nonlegal. So have other parts of my background. My point is that nobody is just a woman or a man. Each of us is a person with diverse experiences. Each of us brings to the bench experiences that affect our view of law and life and decision-making. The concept of a collegial court is to bring together people who will have different life
37. Id. 38. Id. 39. Id. at 8. 40. REFKI ET AL., supra note 10, at 1. 2016] DIVERSITY AND THE LAW 1281
and legal experiences, who may have different views of law and facts. If all the judges were the same, why have seven?41 In addition to experience born of difference based on race, ethnicity, gender, and other identity characteristics, there is also experience born of the practice of law. In this vein, several U.S. Supreme Court Justices appear to agree that diversity of legal practice experience is important to an appellate court. Referring to Justice Thurgood Marshall, a civil rights litigator and icon, Justice Byron White stated that Justice Marshall “brought to the conference table years of experience in an area that was of vital importance to our work, experience that none of us could claim to match.”42 Justice Sandra Day O’Connor noted how Justice Marshall’s life and professional experiences brought an experience not otherwise heard from the Supreme Court’s bench: Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used the law to heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. . . . At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.43 Alliance for Justice has argued: [J]udges are the product of their background and experiences, including their professional lives before taking the bench. . . . [W]hen judges come from all corners of the legal profession—and particularly when they’ve worked in the public interest, representing those whose voices are otherwise rarely heard—they are equipped to understand the views of each litigant before them, and to render more informed, thorough decisions.44
41. Shirley S. Abrahmson, The Woman Has Robes: Four Questions, 14 GOLDEN GATE U. L. REV. 489, 493-94 (1984). 42. Byron R. White, A Tribute to Justice Thurgood Marshall, 44 STAN. L. REV. 1215, 1216 (1992). 43. Sandra Day O’Connor, Thurgood Marshall: The Influence of a Raconteur, 44 STAN. L. REV. 1217, 1217 (1992). 44. ALL. FOR JUSTICE, BROADENING THE BENCH: PROFESSIONAL DIVERSITY AND JUDICIAL NOMINATIONS 5 (2016), http://www.afj.org/wp-content/uploads/2014/11/Professional- Diversity-Report.pdf. 1282 HOFSTRA LAW REVIEW [Vol. 44:1271
As they point out, the data indicates that professional experience, at least on the federal bench, is tilted against public interest service.45 It seems likely that the findings in these studies and the arguments propounded by advocates for diversity will continue to be discussed and debated. While some may believe the case has not yet been made for diversity in the legal profession in furtherance of the fourth goal this Article identifies, the private sector appears convinced that diversity makes for better outcomes and increases profits. We need only read the amici briefs submitted by fortune 500 businesses in Grutter v. Bollinger for statements from the business community extolling the virtues of a diverse workforce.46 One asserted that “[t]o be successful in the global marketplace, multinational . . . companies . . . must cultivate and maintain a diverse workforce comprised of the most talented and skilled people.”47 Another stated that “a diverse workforce creates a competitive advantage by allowing a business to leverage the diverse perspectives of its employees to improve decision-making and increase productivity.”48 It quoted one commentator as saying, “[T]here has come a uniform recognition by top management that diversity adds a significantly valuable dimension to problem-solving and decision- making, and therefore that diverse groups possess important advantages over homogeneous groups as units of creative and competitive productivity.”49 Yet another company asserted: [A]bundant evidence suggests that heterogeneous work teams create better and more innovative products and ideas than homogeneous teams. Homogeneity often causes teams to suffer from lock-step “group think.” The most innovative companies therefore deliberately establish heterogeneous teams in order to “‘create a marketplace of ideas,’ recognizing that a multiplicity of points of view need to be brought to bear on a problem.”50
45. Id. at 6. 46. Motion for Leave to File Brief Amicus Curiae Out of Time and Brief of BP America Inc. as Amici Curiae in Support of Neither Party, Grutter v. Bollinger, 539 U.S. 306 (2003) (Nos. 02- 241, 02-516). 47. Id. at 7. 48. Motion for Leave to File Brief and Brief of Exxon Mobil Corp. as Amicus Curiae in Support of Neither Party at 4, Grutter v. Bollinger, 539 U.S. 306 (2003) (Nos. 02-241, 02-516). 49. Id. (quoting Robert L. Lattimer, The Case for Diversity in Global Business, and the Impact of Diversity on Team Performance, COMPETITIVENESS REV., Jan. 1, 1988, at 317. 50. Brief of General Motors Corp. as Amicus Curiae in Support of Respondents 24, Grutter v. Bollinger, 539 U.S. 306 (2003) (Nos. 02-241, 02-516) (citations omitted) (quoting ROSABETH MOSS KANTER, THE CHANGE MASTER: INNOVATIONS FOR PRODUCTIVITY IN THE AMERICAN CORPORATION 167 (1983)). 2016] DIVERSITY AND THE LAW 1283
If diversity matters for all the reasons articulated by scholars and leaders within the legal profession, and by the business community, then how have the profession and the larger society responded? Is diversity a priority? If so, what have we done to bring us closer to diversity that is “real and substantial”? How have the demographics of the United States and the profession shaped these efforts? What does our report card look like? To explore these questions, we must look at the status of our profession, and just on the numbers, it makes clear that there are great challenges ahead. In 2015, according to the Federal Bureau of Labor Statistics, 34.5% of lawyers were women, 4.6% were African American, 5.1% were Latino, and 4.8% were Asian-Pacific American.51 The numbers are clearly under-representative of these groups as well as the percentage of women in society. Turning specifically to the judiciary, the data shows that women constitute half of the United States population and approximately 50% of the Juris Doctor degrees awarded, yet women remain under-represented on the bench.52 Currently, of the federal judiciary bench, women account for approximately 33% of active federal trial court judges, yet six districts have never had a female judge.53 Women constitute 35% of circuit courts of appeal judges with at least two circuits significantly under-represented.54 Women are 33.3% of U.S. Supreme Court justices.55 The numbers are smaller for women of Color, with eighty-three active federal judges, twelve of which are on the circuit courts of appeal.56 Six circuit courts, including the Second Circuit, have no women of Color as active judges.57 In New York State courts, women have recently passed the one- third mark. Women account for approximately 35% of all state court judges, or about 434 out of approximately 1247 judges.58 Women are 40% of the Appellate Division of the N.Y. Supreme Court, with representation varying widely by judicial department. In the First Department, 48.4% are women, in the Second Department 51.5%, in the
51. BUREAU OF LABOR STATISTICS, FED. STATISTICAL SYS. OF THE U.S., EMPLOYED PERSONS BY DETAILED OCCUPATION, SEX, RACE, AND HISPANIC OR LATINO ETHNICITY 3 (2013), http://www.bls.gov/cps/aa2013/cpsaat11.pdf. 52. NAT’L WOMEN’S LAW CENTER, WOMEN IN THE FEDERAL JUDICIARY: STILL A LONG WAY TO GO 1 (2016), https://nwlc.org/wp-content/uploads/2016/03/JudgesCourtsWomeninFedJud6 .23.pdf. 53. Id. 54. Id. 55. Id. 56. Id. 57. Id. 58. JUDICIAL SECTION, supra note 9, at 54. 1284 HOFSTRA LAW REVIEW [Vol. 44:1271
Third Department 23.2%, and in the Fourth Department 17.7%.59 The 2011 CWGCS report, discussed above, ranked New York twelfth based on women’s share of federal and state judgeships, which at the time was 30.9%. (Idaho ranked fifty-first with 11.3% women, and Vermont ranked first with 39.6% women).60 Notably, today, our state’s high court, the New York State Court of Appeals, leads our state bench. A majority of the court is female, with women holding four of the seven seats on the court, or 57% of our bench.61 This is the third time in the court’s history where women have been in the majority.62 In 2014, according to a New York State Bar Association report, the total percentage of judges of Color in the New York State court system was 19.3% (about 239 out of 1247).63 Among our state’s judiciary, 144 judges were African American, 72 Latino, 22 Asian, and 1 was Native American.64 In the Appellate Division, 27.3% of judges are People of Color, or fifteen jurists, of which seven were female, eight African American, five Hispanic, and two Asian.65 The Appellate Division, First Department was comprised of fourteen justices, of whom seven were People of Color—three African American, three Latino, and one Asian.66 In the Second Department, thirty-five percent of the judges were People of Color, or seven out of the twenty justices, comprised of four African Americans, two Latinos, and one Asian.67 In the Third Department, there were no judges who are People of Color.68 Finally, in the Fourth Department, there was one sole justice of Color, and she is African American.69 There were no Native American justices in the Appellate Division. The presiding justices of the First and Second Departments were People of Color, Latino and
59. Id. 60. REFKI ET AL., supra note 10, at 7. 61. See CT. APPEALS STATE N.Y., https://www.nycourts.gov/ctapps (last visited July 24, 2016). 62. From 2003 to 2009, the female majority of the New York State Court of Appeals consisted of Chief Judge Kaye, Senior Associate Judge Ciparick, and Judges Graffeo and Read. From 2013 to 2015, the female majority consisted of Judge Read, Judge Rivera, Judge Abdus- Salaam, and either Judge Graffeo or Judge Stein. Recently, and for the second time in the court’s history, the Governor appointed a woman as Chief Judge. The appointment of Janet DiFiore maintained a female majority on the court. 63. JUDICIAL SECTION, supra note 9, at 54. 64. Id. 65. Id. at 53-54. 66. Id. at 57. 67. Id. 68. Id. However, in 2016, the Governor appointed the first African American female justice to the Third Department bench, Sharon Aarons. 69. Id. 2016] DIVERSITY AND THE LAW 1285
Asian, respectively, and the presiding justice of the Third Department was a white woman. If we consider national numbers, we see that men constitute half the U.S. population, yet constitute almost seventy-four percent of all federal and state judgeships. No doubt the judiciary is an exclusive club—one based on qualifications. However, exclusiveness obtained and maintained by selection protocols that result in racial, ethnic, and gender disparities is far from beneficial to society. Where does this leave us? In Women, Judging and the Judiciary: From Difference to Diversity, Erika Rackley argues that “who the judge is matters,” and she states: Male judges, just as women, resort to their own perspectives, experiences and values when deciding cases and insofar as this has gone unnoticed this is largely because the absence of judicial diversity has meant that we have not been exposed to a wider array of arguments . . . . [W]omen judges will on occasion judge differently to their male colleagues because there will be times when they will and are required to draw on their own (different) perspectives. The mistake is to think that male judges have not been doing this all along and to think—in either case—that this is problematic.70 As the number of women and People of Color on the judiciary increases so will the ability “to put these statements to the test.”71 It is certain that in the future, with newfound information and insights, we will consider the effects of diversity in ways not currently understood or appreciated.
70. ERICA RACKLEY, WOMEN, JUDGING AND THE JUDICIARY: FROM DIFFERENCE TO DIVERSITY 196 (2013); see Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877, 1928-33 (1988). 71. RACKLEY, supra note 70, at 196.