Is Justice “Diverse”?

An academic friend who prefers to remain anonymous (you would, too, if you taught where he does) pointed me to a new report, Improving Judicial Diversity, recently published by the Brennan Center for Justice at the NYU Law School. Given the degree of diversity of political opinion in most elite law schools like NYU, you will have already confidently (and accurately) predicted that the report finds a woeful lack of “diversity” among state court judges.

“The United States is more diverse than ever,” the press release describing the report begins,

but its state judges are not. While we recognize that citizens are entitled to a jury of their peers who will be drawn from a pool that reflects the surrounding community, Americans who enter the courtroom often face a predictable presence on the bench: a white male…

Most of the legal disputes adjudicated in America are heard in state courts. As such, they must serve a broad range of constituencies and an increasingly diverse public. So why are state judiciaries consistently less diverse than the communities they serve? Unfortunately, studies show that both merit selection systems and judicial elections are equally challenged when it comes to creating diversity.

Apparently even those voters who just magisterially elected the first black president still stubbornly refuse to elect enough “diverse” judges, mirroring the failure of judicial selection commissions.

The authors studied the courts of ten states, and their findings in Rhode Island were typical:

Rhode Island’s population is 21% non-white. Not withstanding the statutory requirement that the governor and nominating Commissions encourage diversity on the appointing Commissions, it has no minority Supreme Court justices and minorities hold only two of the 22 judgeships on the Superior Court.

According to the report’s authors, “[t]he problem is clear”:

even after years of women and minorities making strides in the legal profession, white men continue to hold a disproportionate share of judicial seats compared with their share of the general population. The question of why this pattern persists does not have an easy answer; the dynamic is created by the intersection of a number of complex factors.

Much of the report is taken up with suggesting methods to “fix” this “situation,” such as their their first and seventh proposals:

1. Grapple fully with implicit bias. Cognitive scientists have focused attention on the widespread tendency to unwittingly harbor implicit bias against disadvantaged groups. Fortunately, these biases are mutable. Thus, by acknowledging that this tendency exists, Commissions can take steps to counteract their biases.

7. Create diverse Commissions by statute. A diverse Commission, for various reasons, is more likely to facilitate a more diverse applicant pool. States should adopt statutes that clearly encourage a diverse Commission.

I don’t mean to suggest that grappling, even “fully,” with biases of which judicial selection commissions and voters are unaware is a bad idea. No one should “unwittingly harbor implicit bias” against anyone or any group. Indeed, I firmly believe that we’d no doubt all be better off if all our biases were witting and explicit. And I’m sure I would be regarded as churlish if I paused here to point out that statutes creating “diverse” judicial selection commissions would, or at least should, be struck down as exactly the sort of quotas that “diversity” mongers usually insist they oppose. But, for today at least, but I’m more concerned with the problem than the solutions. It may be “clear” to the Brennan Center, but it’s not to me.

Exactly why, for example, should all racial and ethnic groups be proportionately represented on the bench? Why should the same standards of proportional representation be applied to judges and juries? Is the quality of justice strained if a black plaintiff or defendant appears before a white or Asian judge? Can a white complain that he was not judged by a judge from among his peers if he is judged by a black judge? Is there really a problem if Asians appear before a Hispanic judge, or Hispanics before an Asian?

There is no better place to explore these and other troubling questions than in a source that, true to form, asks none of them: a column in a major newspaper that, enthusiastically endorsing the Brennan Center report, laments the lack of “diversity” among judges in its state, Rhode Island. Never mind that the columnist, Edward Fitzpatrick, is white but doesn’t lambaste his own employer, the Providence Journal, for not hiring a more “diverse” columnist in his place.

Fitzpatrick begins, inauspiciously, by arguing that Rhode Island Gov. Carcieri should “follow the example set by the embattled Illinois governor,” Rod Blagojevich, and “take diversity into consideration as he nominates judges to the seven state court seats that are vacant or about to become vacant….” And then the nod to the Brennan Center report:

“The 2008 election opened a new chapter in the great American story,” Brennan Center Executive Director Michael Waldman wrote, noting we elected our first African-American president and a woman was the Republican vice presidential candidate. “Yet, in state after state, the diversity of judges lags far behind the general population. Too many states have all-white Supreme Court judicial benches, and women remain sorely underrepresented.”

Again, why? That is, why does Fitzpatrick think it important for race, ethnic, sex (and religious?) groups to be “represented” fairly among Rhode Island’s judges?

… [w]e should strive for a diverse bench because, as the report says, “a diversity of viewpoints will produce a more robust jurisprudence and because it will enhance the legitimacy of our system of justice in the eyes of an increasingly diverse public.” The report quotes the late U.S. Supreme Court Justice Lewis F. Powell Jr. as saying, “a member of a previously excluded group can bring insights to the court that the rest of its members lack.”

Is anyone now “excluded” from serving as a judge because of race, sex, or ethnicity? But the real zinger here is the claim that “diverse” judges “will produce a more robust jurisprudence.” What is “a more robust jurisprudence”? Is a “more robust jurisprudence” more just than a less robust jurisprudence, whatever that might be?

“Diversity,” keep in mind, is justified by its proponents because “diverse” individuals are different in important, relevant ways from individuals who are not “diverse” — that’s why the latter need to be exposed to the former. But do we really want to institute what amounts to a quota system for judges based on the assumption that the quality and nature of the justice they dispense will vary based on their race, ethnicity, or sex? Without that assumption, however, what is the justification for “diversity” on the bench?