Racial And Gender Diversity On State Courts

Racial and Gender Diversityon State CourtsAN AJS STUDYBy Malia Reddick, Michael J. Nelson, and Rachel Paine CaufieldMost Americans would agree thatracial and gender diversity is animportant quality for our nation’scourts. Whether judicial diversity is valuedbecause it increases public confidence inthe courts, provides decision-making powerto formerly disenfranchised populations, oris essential to ensuring equal justice for all,citizens seem to prefer a judiciary that isdiverse in its makeup.There is less agreement regardinghow best to achieve judicial diversity. Toaddress this question, staff of the AmericanJudicature Society undertook a project in2008 to identify the institutional andpolitical circumstances in which minority and women judges are most likelyto be selected to state courts. We compiled a dataset that includes all appellatecourt judges and a ten percent sample ofgeneral-jurisdiction trial court judges whowere serving in 2008. For each judge, weidentified the year of selection, the judge’srace/ethnicity, and the judge’s gender.We also included in the dataset a variety of characteristics of the states in whichthese judges served, the courts on whichthey sat, and the ideology of those responsible for their selection. We identified theformal selection method for the court onwhich each judge served, the method bywhich the judge was actually selected, thelegal qualifications for serving as a judge onthat court, and the partisan affiliation ofthe governor or electorate responsible forselecting the judge.We begin by providing an overview of the extent of judicial diversity nationwide in 2008 and over time.We then explore whether minority andwomen judges were more likely to beselected in particular institutional andpolitical contexts.Judicial Diversity State-by-Stateand Over TimeTable 1 (page 30) displays the percentagesof judges on appellate courts and general-jurisdiction trial courts in each statewho were racial or ethnic minorities andwho were women. The highest percentageof minority judges, 65.1%, was found inHawaii. The states with the next highestpercentages were Louisiana, New York, andTexas, where minority judges comprisedapproximately one-fifth of the bench.Interestingly, at the time this data wascollected, there were no minority judgesserving on appellate or general-jurisdictiontrial courts in six states—Maine, Montana,New Hampshire, South Dakota, Vermont,and Wyoming.The states with the highest percentages of women judges were Florida, Hawaii,Maryland, Massachusetts, Nevada, andVermont, where approximately one thirdof judges were women. Contrary to thenorm for most states, in five states—Hawaii, Louisiana, Missouri, New York,and Virginia—the percentages of minority judges were higher than the percentages of women judges.As a number of scholars have documented, the presence of minorityand women judges on state courts hasincreased gradually over time. Figure 1(page 31) demonstrates this as well, indicating the percentages of minority andwomen judges in our dataset selected bydecade. While only 4.0% of judges chosen in the 1970s and still serving in 2008were racial or ethnic minorities, 12.6% ofjudges chosen since 2000 were minorities;and while only 16.0% of judges selectedin the 1970s and still serving in 2008 werewomen, 29.2% of judges selected in the21st century were women.Selection Methods and JudicialDiversityThere are six methods through whichseats on state courts may be filled—merit selection, gubernatorial appointment,partisan election, nonpartisan election, legislative appointment, and courtappointment. The question of whethersome methods of selecting judges aremore effective than others in diversifying state judiciaries is one that has beenof interest to researchers, policy makers, and selection reform advocates fordecades. While some studies have foundthat appointive systems enhance judicial diversity, other studies have reported that elective systems produce morewomen and minority jurists. At the sametime, several studies have found no linkwhatsoever between selection systemsand diversity of the bench.However, the majority of these studies are based on the court’s formalmethod of selection and do not takeinto account the method by whichjudges were actually selected. Analysisof our data reinforces the importance ofidentifying actual selection methods, asPublished in The Judges’ Journal, Volume 48, Number 3, Summer 2009. 2009 by the American Bar Association. Reproduced with permission. All rights reserved.This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system withoutthe express written consent of the American Bar Association.

45% of judges serving in 2008 in stateswith partisan or nonpartisan electionswere initially appointed to their seats.By determining the method throughwhich judges actually reach the bench,we are able to contribute to the debateover which selection systems producea more diverse judiciary. Table 2 (page31) provides a breakdown of the minority and women judges serving on statecourts in 2008 and the methods bywhich they initially attained their seats.The most common selection method forboth minority and women members ofstate courts of last resort was merit selection, with 54.3% and48.5%, respectively,having been chosen through a meritplan. On intermediate appellate courts,more minority judges attained theirseats through meritselection (40.8%)than through anyother method, butpartisan electionsplaced slightly morewomen on thesecourts (29.3%) thandid other selectionprocesses.For general-jurisdiction trial courts,a plurality of minority judges in our dataset (35.3%) were appointed by the governor without recommendations froma nominating commission, while morewomen reached the trial court bench viamerit selection (30.2%) than throughany other selection method. However,as these figures are based on a 10%random sample of trial court judges, weconducted tests to determine whetherthe differences across selection methodsfor trial court judges were statisticallysignificant, and they were not.and to a lesser extent within, states inthese legal qualifications. The most common judicial qualifications relate to age,extent of legal experience, and residency,and we explore the relationship betweenthese requirements and the racial andgender makeup of the bench. Table 3(page 32) displays the percentages ofminority, women, and all judges whoserved on courts with these requirements.Some states have minimum agerequirements for judicial eligibility ranging from 25 to 35 years of age. As shownin Table 3, the age qualification mayhave disadvantaged women in attaininghigh court seats.While 34.7% ofall judges servedon courts of lastresort in states witha minimum agerequirement, only28.2% of womenjudges served onsuch courts. An agequalification mayhave differentiallyaffected minoritiesas well, though thedisparities are small.Compared to alljudges who servedon state appellate courts with anage qualification,a smaller percentage of minority judgesserved on courts of last resort (31.4% vs.34.7%) but a larger percentage of minority judges (30.0% vs. 26.1%) served onintermediate appellate courts.In all states, judges of appellate courtsand major trial courts are required eitherexplicitly or implicitly to have a law degree.Some states go further and require judges tohave been licensed to practice law, to be amember of the state bar, or to have servedas a judge on another court for a minimumnumber of years. According to our analysis,legal-experience qualifications benefittedminority attorneys. While 58.5% of highcourt judges nationwide served in statesthat require a minimum number of years oflegal experience, 68.6% of minority highcourt judges served in such states. AndOn intermediateappellatecourts, moreminority judgesattained theirseats throughmerit selection,but partisanelections placedslightly morewomen on thesecourts.Legal Qualifications and JudicialDiversityConstitutional and statutory provisionsdefine who is eligible to serve as a judge,and there is significant variation across,while 65.9% of general-jurisdiction trialcourt judges served on courts with such anexperience requirement, 80.4% of minoritytrial court judges served on these courts.Malia Reddick is director of Research &Programs at the American Judicature Society.She is director of a two-year research projecton judicial diversity; the results form the basisfor this article. The project is aimed at preserving and strengthening existing judicial meritselection systems and encouraging the expansion of merit selection to other jurisdictions.She can be reached at mreddick@ajs.org.Michael J. Nelson, a former researchassistant at the American Judicature Society,is a graduate student in political science atWashington University in St. Louis. He can bereached at mjnelson@wustl.edu.Rachel Paine Caufield is a professor inthe Department of Politics and InternationalRelations at Drake University in Des Moines,Iowa. She is also a research fellow at theAmerican Judicature Society. She can bereached at rcaufield@ajs.org.Published in The Judges’ Journal, Volume 48, Number 3, Summer 2009. 2009 by the American Bar Association. Reproduced with permission. All rights reserved.This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system withoutthe express written consent of the American Bar Association.