When I was in law school interviewing for jobs, I learned that there were Jewish firms and non-Jewish firms. It was worthwhile interviewing with the former. The latter, not so much. It wasn’t clear to me why any law firm would care about its lawyers’ religion, since my understanding of the point of hiring associates was to find the ones who would do the best job representing clients. What else could possibly matter?
Years later, sitting outside on the coast of Long Island Sound with friends, having a glass of red wine, it was explained to me. My friend’s father was there with us. He had been a partner in a white shoe law firm, as they were called, back when I was a snot-nosed kid lawyer, so I asked him. He explained that it wasn’t anything personal. They didn’t hate Jews. They didn’t think much about it at all.
“So what was the problem,” I asked. It was “culture,” he explained. We didn’t know what fork to eat with at dinner. We didn’t know where to buy our suits. We tended to be a little too loud, too vulgar, too funny. We weren’t raised in the ways of Choate and Harvard. We weren’t like them, with “them” being the WASPs. They had nothing against us, but didn’t feel comfortable letting us in their club, where everyone understood how to be.
The New York Times has an op-ed about the dearth of women and minorities on state supreme courts.
But seldom do these courts look anything like an increasingly diverse America.
We found that nearly half of all states do not have a single justice sitting on their high courts who is black, Asian, Latino, or Native American — even though people of color make up about 40 percent of the population. In eight of the 24 states with all-white high courts, people of color make up at least a quarter of the population. Thirteen states have not seated a single justice of color since at least 1960. Eighteen states have never seated a black justice.
The dearth of gender diversity is also appalling. Women hold only 36 percent of the seats on top state courts. Seventeen states have only one female justice. (State supreme court benches have five to nine justices.)
This will come as no surprise to lawyers, who look into the faces of their state supreme court justices as they argue their cause. They are, as they have always been, primarily white and male. What else could they be? These are the people who rose to prominence in law firms, established relationships and reputations, and finally arrived at the point in their careers where they were fodder for their respective courts.
This didn’t start yesterday, but decades ago. What we have now is the product of the seeds planted way back when. It takes time to reach the point of being ready to sit on the state supreme court. It’s not the sort of job where random people are plucked out of the courtroom hallway and handed a robe based on race or gender.
One would hope the supreme court justices would be selected with a little more care for competence, integrity and temperament. And despite its being meaningless to most baby lawyers, experience tends to be a good thing when elevating lawyers to the bench, lest their opinions consist of a string of emojis ending in a gif.
That the general population isn’t reflected in the faces of the judges is the wrong metric, which the authors likely know but chose to ignore. Judges come from the population of practicing lawyers, and the distribution should reflect that universe. Still, it does not. What it tends to reflect is the population of partners in mid- to large-size law firms and the upper echelons of government lawyers. This is the real population from which judges are drawn, not the general one, nor even the lawyer one. You have to be a big deal to be a state supreme court judge, and that’s where the big deal lawyers can be found.
This does not, of course, make the individuals chosen or elected, as the case may be, for the state supreme court bench poor choices. They are usually excellent lawyers with unblemished reputations, superior intellect and the ability to never put their dinner roll on someone else’s bread plate. So if they’re good choices other than race and sex, what’s the problem?
The public legitimacy of our entire judicial system is under threat if the judges making crucial decisions about the law don’t reflect the diversity of the communities affected. As former Justice Yvette McGee Brown of the Ohio Supreme Court observed, the public’s perception of justice suffers “when the only people of color in a courthouse are in handcuffs.”
The appearance of impropriety has long been recognized as a serious threat to the “least dangerous branch.” If the courts are perceived as exclusionary, it can well impact the public’s perception of their “legitimacy,” to the extent legitimacy means “fairness” for all. But then, this “crisis of legitimacy” comes from people like the op-ed authors pointing at the court and calling it illegitimate for lack of diversity. Is it a real “crisis”?
What’s more, research has shown that diversity on the bench enriches judicial deliberations. Studies of federal courts found that when a female justice or a justice of color sits on a panel, their male or white colleagues are more likely to side with plaintiffs in civil rights cases.
The best evidence the authors could muster is a study limited exclusively to cases deciding affirmative action. Notably, there is no evidence that state court decisions, dealing with the pedestrian issues of crime and punishment, are influenced at all by the race or gender of judges. The assumption is that black and female judges will have life experiences that will make them more sensitive to, more empathetic about, the “injustices” suffered by litigants of their color or sex. There is no empirical evidence of this, but rather a social justice belief system that assumes away the hard questions.
The authors offer a solution to their complaint:
But we can mitigate these inequities. States don’t have to elect their high court justices. If they choose to do so, there are proven approaches, like public financing, that can help open the door for diverse candidates. Lawmakers, the legal profession and law schools can and should dedicate meaningful resources toward building pipelines for diverse judicial candidates.
As the barriers to women and minorities assuming leadership positions fall, they will end up on the state court high bench, ending this “crisis” of appearance. Whether it will make any substantive difference remains a mystery, but creating a pipeline for the next generation of judicial Brahmans to replace the white shoe law firm guys sounds like making the same mistake again, only in different colors. A “conviction affirmed” opinion by a black female judge doesn’t feel much better than a white male judge.