With Diversity Pledge, President May Give New Look to US Courts Analysts Say New Women, Minority Judges Will Have Most Impact on Changing Areas of Law, Such as Sexual Harassment, Abuse of Women

Article excerpt

WALK into any federal court, and the likelihood of seeing a white male at the bench is 8 in 10. Only 10 percent of federal judgeships are held by women; only 9 percent are occupied by blacks and Hispanics.

But if President Clinton's campaign speeches - in which he pledged to make "diversity" a key criterion in court appointments - are any indication, the days of the old-boy benches are numbered. The president has an unprecedented opportunity to overhaul the look of the federal bench - and, possibly, the nature of the opinions handed down.

Mr. Clinton is the first Democratic president to appoint a justice to the United States Supreme Court in 25 years. And he is said to be considering a number of women and minorities - including Judge Ruth Bader Ginsburg of the District of Columbia appeals court and US District Court Judge Jose Cabranes of Connecticut - to fill the seat being vacated by Justice Byron White, a white male.

The president's impact on the federal bench - which, though lower profile, issues far more opinions - will be even more pronounced: There are a record 121 vacancies in the federal courts, about 1 of 7 seats on the bench.

Now that the president is poised to translate his "diversity" philosophy into Supreme Court and federal court appointments, many legal scholars are trying to figure out what diversity in the courts will actually mean. Will sex and gender change the way the law is interpreted? Do female judges write different opinions from men on, say, sex discrimination issues? Do black or Hispanic judges tend to rule in favor of plaintiffs in civil rights cases?

"It will be more egalitarian," predicts Joan Dempsey Klein, presiding judge of California's Second District Court of Appeals. "It will be more open. There will be more questions about some of the old standards that have been accepted over the years."

But conservative critics say that diversity means putting a liberal political bias in the courtroom. "The easiest way for the administration to get its political agenda through is through appointments to the courts," says Marianne Lombardi of the conservative Free Congress Foundation in Washington. Ms. Lombardi adds that in making gender and race an unspoken qualification, the administration is "cutting itself out" of some of the most experienced candidates - white males.

Surprisingly few studies have looked at how race or gender affects the outcome of rulings. The few studies on judicial opinions tend to concentrate on party affiliation - and even those suggest that decisions by women and minorities do not radically differ from those of white men.

"A good judge is a good judge, and generally race or gender doesn't make any difference," says Elaine Martin, a political scientist at Eastern Michigan University. "But on the cutting edge of the law, where things are changing, it's more uncertain, then I think you'll see that when women or minorities are present, there's a different perspective."

Professor Martin came to that conclusion after surveying 1,200 state and local judges - half men, half women. She asked them how they would decide five hypothetical court cases that involved women's rights: maternity leave, teenage abortion, divorce settlements for "homemakers," sexual harassment, and damages for battered women. …


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