Judicial Diversity-An Essential Component of a Fair Justice System
Only through a diverse judiciary can we truly fulfill the Jeffersonian promise of equal and impartial justice for all.
"The most sacred of the duties of a government is to do equal and impartial justice to all its citizens." Unfortunately, the current lack of diversity on our courts has contributed to a majority of Americans believing that this promise of Thomas Jefferson's has gone unfulfilled.
According to a national survey of American voters conducted by Justice at Stake in 2001, while 62 percent of white voters view the courts as fair and impartial, 55 percent of African Americans believe that judges are not fair and impartial. Seventy-seven percent of African Americans believe that judges are controlled by special interests. Eighty-five percent of African Americans believe that there are two systems of justice: one for the rich and powerful, one for everyone else. And 59 percent of white Americans agree.
There is a plausible link between this lack of confidence in the justice system, and the lack of diversity on the bench. While people of color are disproportionately overrepresented in the civil and criminal justice system, they are underrepresented on the bench. Just as more than half of African Americans view courts as biased, more than half of our state supreme courts are composed of all white jurists. Of the 111 members to serve on the U.S. Supreme Court in our nation's history, 106 (95 percent) have been white men. Women comprise more than half of our nation's population and, in recent years, of law school graduates. Yet only a quarter of our judges are women, and two states (Idaho and Indiana) have no women on their supreme courts. Hispanics and Asian Americans are even more underrepresented on the bench than are women and African Americans, and there is not a single Native American judge on the federal bench. Judges of color account for just over 12 percent of all state court judges chosen since 2000. Our ability to provide equal justice for all is compromised by this lack of diversity within the judiciary.
Virtually ever)' American is familiar with the concept of a "jury of one's peers." It is considered fundamental to our system of justice, and our Supreme Court has noted that the systematic exclusion of jurors based on race or gender is "at war with our basic concepts of a democratic society and a representative government." What most Americans do not realize is that the Constitution does not provide an explicit guarantee of a "jury of one's peers." Rather, the Supreme Court has interpreted the 6th Amendment's guarantee of an "impartial" jury and the 14th Amendment's right to "equal protection of the laws" to require a jury pool that is "truly representative of the community" and made up of a "fair cross-section" of the community. We should likewise view a diverse judiciary as an essential component of a fair justice system.
The benefits of a judiciary that is diverse go beyond die symbolic. We require jury pools to be representative of the community not just because it reduces the perception of bias, but because it reduces the actual opportunity for bias. The benefits that accrue from having 12 diverse viewpoints on a jury are similarly present when it comes to diversity on the bench. Judges can and do influence each other. They exchange ideas on and off the bench. A judiciary that is comprised of judges from differing backgrounds and experiences leads to an interplay and exchange of divergent viewpoints, which in turn prevents bias, and leads to better, more informed decision making. Diversity of opinion among decision makers encourages debate and reflection, and fosters a deliberative process that leads to an end product that is greater than the sum of its parts.
Both the Supreme Court and social scientists who have studied juries have recognized the importance of this interplay between differing groups on juries, noting that the races and sexes are not "fungible" when it comes to juries. …