JUDICIAL DIVERSITY IN FEDERAL COURTS: A Historical and Empirical Exploration
Hurwitz, Mark S., Lanier, Drew Noble, Judicature
The makeup of federal court judges, including Supreme Court justices, has seen many changes over the years, in some ways reflecting broader changes in American society.
"The administration of justice is the underpinning which sustains the entire edifice of democracy. It is time this foundation was repaired, strengthened and reinforced with a national commitment to ensure liberty and justice and fair representation for all."1
Descriptive representation is an important issue within democratic institutions. Although constitutionally designed to be the least popularly accountable branch of the federal government, the American judiciary is just as beholden to issues of representation, as succinctly stated in the quote above from four decades ago by George W. Crockett, Jr., one of the few African-American judges at the time.
Certainly, the numerous published works in scholarship and the media attest to this fact. Much of the diversity literature has focused on questions of gender and race, as those are perennial cleavages within American politics,2 and much of the judicial diversity literature has focused on the U.S. Supreme Court, even when looking beyond race and gender. We have previously explored judicial diversity by examining the proportion of federal and state appellate judges who were political minorities,3 and we have also sought to expand the traditional definition of diversity beyond the customary boundaries that largely have limited prior analyses to questions of gender and racial diversity, revolving around questions of group-based identity. Here, we broaden the definition of diversity beyond gender and race to include religious affiliation, age, education, and career background. As there are many descriptive differences among the nation's judges, we seek to expand the contemporary view of diversity to include several aspects of the backgrounds of judges in the federal courts. More specifically, in this analysis we seek to examine prior career and life experience, broadly defined, that federal judges possessed prior to reaching the federal appellate courts.
Import of Background Characteristics of Federal Justices and Judges
Generally, a judge's socializing experiences may be associated with the development of certain attitudes or a view of the appropriate judicial role.4 Judges of the federal courts are political veterans, having been involved in politics for much of their professional lives, and thus they have had many socializing experiences over time. Many of them have served in key governmental positions prior to their nominations, having been governors, prosecutors, attorneys general, senators, and even president.5 Having served in such roles gives them the exposure necessary to gain the president's attention and the experience to make them more politically astute and viable as a judicial nominee. Indeed, several have been personal friends of the president prior to ascending to the bench.6 Because of these experiences, federal judges are keenly aware of the political dynamics that surround the federal courts at various levels and their role within the American political structure. Thus, the experiences judges have gained prior to the time they are appointed to the federal bench make more diverse the sets of individuals who serve there.
Race and Gender
Clearly, one of the key factors in explaining judicial behavior is the host of demographic influences on, or immutable characteristics of, a person. The literature is replete with examples of the influences of these variables on judicial behavior, although the effect of each is contingent on setting, context, and time. Women tend to represent a broader span on the ideological spectrum than do racial and ethnic minorities, with both Democratic and Republican women found among elite decision makers.7 On the other hand, minorities in the aggregate generally hold views comparably more liberal than women.8 Thus, it is critical to consider both racial and gender backgrounds when examining judicial behavior. …