Academic journal article Vanderbilt Law Review

Measuring Justice in State Courts: The Demographics of the State Judiciary

Academic journal article Vanderbilt Law Review

Measuring Justice in State Courts: The Demographics of the State Judiciary

Article excerpt

Introduction

The selection of a new U.S. Supreme Court Justice was a central issue in the 2016 presidential election.1 Justice Antonin Scalia died unexpectedly on February 13, 2016.2 President Barack Obama nominated U.S. Court of Appeals for the D.C. Circuit Judge Merrick Garland to succeed Scalia.3 The Republican-controlled Senate, however, refused to consider nominee Garland because Obama was in his last year as president.4 Although unprecedented and controversial,5 the Republican Senate leadership's decision is logical. In an appointment system with nomination and confirmation, the nominator controls the agenda. A different nominator will present different options to the confirming body. The country saw this play out. President Donald Trump's eventual nominee, Tenth Circuit Judge Neil Gorsuch, had a much different judicial record than Garland.6

Any process of selection will inevitably have an impact on who is selected.7 The fifty-two judicial systems in the United States use a wide variety of processes to choose their principal judges.8 The federal judicial system uses two methods of selection: the familiar Article III presidential nomination and Senate confirmation process,9 and the less familiar Article I administrative process.10 Each state has a distinct selection process for its judicial system.11 A state judge may first gain a seat through election (nonpartisan or partisan), appointment by an elected branch (governor and/or legislature), or recommendation by a merit commission. Because few state judges enjoy life tenure, most face some form of election, either a retention election (with an up-or-down vote) or a contested election, to keep their seats.12

Judicial selection's effects extend beyond who is chosen to who even considers becoming a candidate. Federal judges and judicial nominees have complained of the discouraging effects of the slow and sometimes demeaning gauntlet to confirmation.13 They may drop out or not even make themselves available as a prospective nominee. State judges often face elections to be selected for, or at least to retain, a seat. State judges express concern that the path to the bench via the ballot box dissuades promising candidates, especially women and minorities, from seeking judicial office and has negative effects on those that do.14

The work of courts as well as the public's view of courts and their legitimacy are affected by who serves. The idea that judicial decisions and their reception are affected by the identity of the person making the decision is entirely intuitive and empirically well established.15 Thus, we need to know the demographics of the bench to understand the dynamics of the judicial process, to evaluate the means of choosing judges, and to analyze the role of the judiciary in the larger political system.16 Judicial biographies are important.

The U.S. Supreme Court is undoubtedly the most visible and well-known court in America. Countless scholarly and popular works have been published on the Court and the individual Justices who have served on it.17 We can read colorful and extensive stories about their lives: their upbringing, common or idiosyncratic habits, changing worldviews, and life-altering experiences.18 We can access detailed databases of their backgrounds, attributes, and work.19 We can even track down the gravesite for each Justice (only the dead ones, of course).20 Even the relatively unimportant Justices have received lavish attention.21 Supreme Court Justices' lives lay open for us. Yet, the Supreme Court, while important, has limited reach. The Court decides fewer than one hundred cases per year.22 Moreover, it addresses only questions of federal law. While we often hear a person say that she will take her case "all the way to the Supreme Court," the reality is that the Justices decide few cases and only a subset of legal issues.

Although the Supreme Court is the top of the federal judicial hierarchy, lower federal courts are the final word for nearly every dispute. …

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