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
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
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. …