Diversity on the bench

Women scored some major victories regarding diversity on the bench lately. With the confirmation of minority Justices Sonia Sotomayor and Elena Kagan to the United States Supreme Court, and with our new Chief Justice of the California Supreme Court Tani Cantil-Sakauye, it is undeniably a historic time not only for the judiciary, but also for the state and nation.

In the background, with the recent confirmations of two minority judges, Jacqueline Nguyen and Dolly Gee to the Central District of California, we have more minority women serving as Article III federal judges than in any time prior.

What factors may have contributed to the improvement of diversity on the bench in California helping to pave the way for our first female Chief Justice? Perhaps that over the past 20 years law school populations have become more diverse. Additionally, about 20 years ago, the California Judicial Council made a formal commitment to promoting diversity. To give you an idea of the kind of progress that has been made towards a more diverse bench, in 2009 women now constitute 28.8 percent of the bench, and in terms of ethnicity the number of non-whites has increased to 22.1 percent of the judiciary.

Politics also plays a role in who gets to sit on the bench. Some of the recent improvements in diversity may have more to do with Governor Schwarzenegger’s choice of his appointment secretary, Sharon Majors-Lewis. She was the first woman, and first African-American, to hold that post. Due to concerns over the lack of judicial diversity, she revised the judicial application form to include questions regarding non-trial experiences, skill sets such as mediation, administrative and family law. As a result, the governor’s more recent appointments reflect a more diverse bench. Women now account for approximately 33.6 percent of Schwarzenegger’s appointments, and about 23.6 percent have been minorities.

But even with these recent successes at the state and nation level, the diversity of judges lags behind the diversity of the general population.

In a 2009 empirical study, conducted over a twenty year period, called “Myth of the Color-Blind Judge” by Professor Pat Chew and Robert Kelley of the University of Pittsburgh School of Law and Carnegie Mellon, out of 805 active judges in the federal courts, judges of color constituted only about 19% of the bench. Merely 11% of judges were African Americans, 7% were Hispanic and less than 1% were Asian Americans.

The Brennan Center for Justice at NYU School of Law did a study regarding improving judicial diversity, looking at the magnitude of the problem and how courts are trying to become more effective at appointing women and racial minorities. Some of the findings with regard to gender are as follows:

• Although women make up approximately 50% of the population, state judiciaries are predominantly male at almost every level.
• Only about 26% of state court judges are women.
• White males are overrepresented on state appellate benches by a margin of nearly two-to-one.

Some research suggests that, with the demise of Affirmative Action programs, the situation for African-Americans have worsened. For example, enrollment of African-American students in law school has decreased. Additionally, the number of African-American judges has decreased because they are retiring at a rate quicker than they are being appointed.

Diversity is important for the bench, not only because there is -- or sould be -- a moral imperative to include people of different genders, ages, sexual orientations, races, and economic and professional backgrounds. We also need judges that do not have a homogenized or predetermined view of the world. As Oliver Wendell Holmes wrote: The life of the law has not been logic: it has been experience. That is the reason why female and/or minority judges may reach a better result in more of the cases.

So, while we celebrate the historic event of the first female Chief Justice of the California Supreme Court Cantil- Sakauye, let us also be reminded that there is still much work to be done.