NAVIGATING JUDICIAL SELECTION: New Judges Speak about the Process and Its Impact on Judicial Diversity

By Merola, Linda M.; Gould, Jon B. | Judicature, March/April 2010 | Go to article overview

NAVIGATING JUDICIAL SELECTION: New Judges Speak about the Process and Its Impact on Judicial Diversity


Merola, Linda M., Gould, Jon B., Judicature


Advocates and researchers have provided ample evidence that there is still work to be done to improve judicial diversity.' In 2005, a report by The Lawyers' Committee for Civil Rights under Law found that "of the 11, 344 authorized judgeships for the general jurisdiction, appellate, and trial courts within the United States, merely 1,144 or 10.1% [were] held by judges of color."2 Generally, democracy requires the institutions of government in a diverse nation be reflective of the public they serve. However, the particular importance of diversity in the judiciary cannot be understated given the specific duties of the courts.

It is the business of the courts, after all. to dispense justice fairly and administer the laws equally. It is the branch of government ultimately charged with safeguarding constitutional rights, parparticularly protecting the rights of vulnerable and disadvantaged minorities against encroachment by the majority. How can the public have confidence and trust in such an institution if it Ls segregated - if the communities it is supposed to protect are excluded from its ranks?3

Thus, it is crucial that die public sees a judiciary reflective of the diversity of its community/ Additionally, diversity in the judiciary benefits judicial decision making.5 Judges from different backgrounds and a diversity of experiences help to guard against the possibility of narrow decisions. Judges can debate with one another, offering divergent perspectives and educating their colleagues about how their decisions will affect various populations."

For some time, researchers have sought to determine whether a state's judicial selection process influences judicial diversity. Overall, the results have been mixed. Early research concluded that it was more difficult for persons of color to become state judges in appointive systems, arguing that "appointive systems in general, and merit systems in particular, tend[ed] to favor a prior status quo by perpetuating the dominance of traditional elites in the judiciary, thus decreasing opportunities for political minorities who may not have conventional legal backgrounds or experience."7

Although persons of color have traditionally faced other barriers within elective systems of judicial selection, it was thought that these systems at least allowed for the possibility of change through competitive elections/ Those supportive of merit systems have frequently maintained that they produce better-qualified judges and also remove much of the politics found in elective systems from the selection process.* More recent research challenges these claims, suggesting instead that differing judicial selection mechanisms do not systematically affect the ability of minorities or women to become judges."' Several studies have even argued that a relationship between the choice of selection mechanism and judicial diversity might once have been present, but has now disappeared."

Against this background, we conducted a study of state trial court judges of color to examine the influence of the judicial selection process on diversity. Given the complexity of selection mechanisms used across states and the progression - and sometimes disagreement - of the findings from large quantitative studies, we chose to use a qualitative, case-based approach. This allowed us to examine the overall influence of varying selection mechanisms on diversity and to develop a deeper knowledge of each judge's experience during the selection process.

Generally, we find that the varying selection mechanisms tend to operate to produce a surprising similarity in the processes, strategies, and experiences of judicial candidates. Rather than a specific selection mechanism, the judges overwhelmingly point to other factors - such as politics, networking, mentorship, and other resources - as determinative of the ability of diverse candidates to become judges. Where a choice of selection mechanism seems to operate to hinder diversity, it is not based upon this structural choice alone, but rather this choice combined with additional, more nuanced factors. …

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