The Color of Judges

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.

25 thoughts on “The Color of Judges

  1. wilbur

    That’s funny. I don’t remember ever seeing an attorney wearing white shoes. If I’d known that was the path to success I’d have laid in a supply.

    Reply
      1. Jim Tyre

        Perhaps he just went at the wrong time? Being Jewish, I lack personal knowledge, but aren’t white shoes limited to the period from Memorial Day through Labor Day?

        Quick aside: the California Supreme Court has 7 Justices. 4 men, 3 women. Only 2 of the men and one woman are Caucasian.

        Reply
    1. Alan Williams

      Alas, aside from “too funny,” I fit–and hence contribute to–the stereotype. To my fellow children of Abraham, may I just say: sorry ’bout that.

      Reply
  2. Cinnamongirl

    I’m off topic slightly but in NY Supreme (Supreme Court is the the trial court not the highest appellate court in NYS for those reading from other places), the administrative judge is Hon.? Deborah Kaplan whose father died in federal prison for dealing drugs for the Mafia. How he got mixed up with a bunch of dumb and very loud Italians not from the same club, I don’t know. (Before any baby lawyers that may be reading go off the rails, my own father was a bookmaker for the Mafia so I’m deeply familiar with the “culture” , therefore can say with conviction and accuracy “dumb and very loud Italians”.). Not only that, but she failed to disclose that she owned a million dollar property in Brooklyn on her judicial forms. To be fair, her father probably put this property in her name to avoid any inquiry by Uncle Sam. Nevertheless, she had knowledge and chose to fugetaboudit. No one seemed to bat an eye as she was appointed acting Supreme and then elevated to Admin Judge. I’m all for diversity on the bench but, this is an example of a definite downgrade from the the blue-blooded boys club. For fun, google her and read about her wedding where the Godfathers were in attendance and her rationale for going to law school and becoming a criminal defense lawyer which was to help Daddy. Only in NY.

    Reply
    1. SHG Post author

      More than slightly, and every lawyer here has stories, which would be perfect when they have their own blawg. But this is my blog, and my post, and my topic. Motion denied.

      Reply
      1. Cinnamongirl

        Motion to reargue: The problem with men is that they don’t relish a good juicy gossip fest. Me thinks more diversity is needed on this blog.

        Reply
  3. paleo

    Here in progressive Texas we’ve had Sharon Keller on the Court of Criminal Appeals (the Tx “supreme” court for criminal matters) for a quarter century. She’s been the presiding judge for almost 20 years. And she’s always been a dependable vote for the power of the state, including famously closing the office early to thwart a last-minute death row appeal and (I think) inventing the “unindicted co-ejaculator” concept to try to overcome a DNA result that wrecked a conviction.

    Now I learn I’m supposed to support that because of her chromosomes. I mean, I’ll try, but it’s going to be hard……

    Reply
        1. SHG Post author

          On “Women in Law” Day, the woke #ladylawyers at #AppellateTwitter were listing off all the female judges to honor their genitalia, and finally got around to Killer Keller. I asked whether they had any idea who it was they were honoring. They were no more pleased with me than usual when they informed me I was a misogynist for my failure to appreciate Killer Keller’s contributions to feminism.

          Reply
  4. DaveL

    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.

    That’s an odd passage. We’re offered the fact that 40% of the population is made of of “people of color”, but immediately afterwards we’re told that only a third of the states in question have even 25% people of color. Presumably the rest have even fewer. So why mention the 40% figure at all?

    Reply
  5. Scott Jacobs

    You’d think that one of the things even a baby Jewish lawyer would know would be exactly where to get the best suit…

    Reply
      1. Cinnamongirl

        I love this story! I didn’t know you had it in you SHG. I thought you were just a cranky, albeit smart, old badger. Always something surprising to learn on SJ.

        Reply
  6. KP

    Ah, I remember the good ‘ol days when female teachers wanted to equal the numbers of men so it was “fair”. Now that there are under 20% men in the profession, is education better??
    Will justice be better when 8 out of 10people involved are female? Black? Muslim? Maybe the best metric will turn out to be Conservative or Progressive?

    Reply
    1. SHG Post author

      There are two issues at play here. The first is integration for its own sake, which is happening organically, but not fast enough, so they want to force it. The second is the assumption that minorities and women will be more aggressively pro social justice. They may be very disappointed that it doesn’t necessarily work that way.

      Reply
  7. John Haberstroh

    “States don’t have to elect their high court justices.” Democracy sucks, wokeness rules.

    Reply
  8. Chaswjd

    The Wisconsin Supreme Court is elected with appointments to fill uncompleted terms. Until August 1, 2019, the court will be 6 women and 1 man. The women were divided evenly between the conservative and liberal blocks, although in the last term, the blocks were not entirely predictable. After that date, the balance will shift to 5 women and two men. A male candidate upset a female candidate by about 5500 votes state wide. I don’t see the sexism claimed in the article here.

    Reply

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