A new dataset and analysis by the American Constitution Society paints the most complete picture to date of the composition of our state courts, and the message is clear: America’s courts are failing to represent the diversity of those they serve. Despite the increasing gender and racial diversity of lawyers across the country, no state has a bench that reflects its population. This “gavel gap” is troubling because diversity is essential to a properly functioning judiciary. A court that reflects a variety of backgrounds brings a wider array of experiences to bear in its decision-making, and encourages confidence that the judicial system is fair and open to all.
The Gavel Gap: Who Sits in Judgment on State Courts? vividly illustrates the troubling lack of diversity on our state courts. In this study, law professors Tracey George and Albert Yoon compiled a dataset of biographic information for over 10,000 sitting judges, and compared the proportion of women and people of color on each state’s courts to the state’s total population. Their results are devastating: 26 states received failing scores, with the proportion of women and minority judges in the judiciary less than 60% of their proportion in the general population.
Overall, women, who make up half of the U.S. population, hold less than one third of judgeships on state benches. In West Virginia, which has the largest gender gap between its court and population, women make up only 11 percent of state judgeships. Nationwide, people of color make up roughly 40 percent of the population, but less than 20 percent of state judges. And as of December 2014, Vermont, North Dakota, Maine, and New Hampshire did not have a single non-white judge on the state bench.
The data also reveals that success achieving diversity in one category –– either gender or race –– does not necessarily produce success in the other. Oregon, for example, has achieved noteworthy gender parity, with women facing the smallest overall gap between their representation on the court as compared to the population at large, but ranks 34th in the country for its racial representation gap. This effect can also be seen regionally. While southern and western states have similar proportions of female judges to the rest of the country, the gap for people of color is larger in these states.
Why does this matter? State court judges hear 95% of all cases, making decisions affecting the environment, education, families, and more. Homogeneous courts reflect a limited range of experiences, which can lead to rulings that are neither challenged nor enriched by varied perspectives. Moreover, lack of diversity can have dangerous consequences for public confidence in the courts. As former Supreme Court of Ohio Justice Yvette McGee Brown, the first African-American woman to serve on the state’s high court, observed: “When the only people of color in a courthouse are in handcuffs, the public’s perception of Justice is ‘Just Us.’”
This is a problem that will not fix itself. Some scholars have noted structural barriers, such as low judicial salaries, inadequate recruitment, and, in the case of appointed judges, poor advertising of vacancies, which can make it difficult for courts to attract diversity. And research suggests that even when decision-makers want to be fair, implicit biases can create additional hurdles to achieving a diverse bench.
The need for states to grapple honestly with the reality of their courts’ composition is illustrated by Utah’s recent changes to its judicial selection system. In April, the state removed a provision instructing its judicial nominating commission — the body responsible for recruiting and vetting judicial candidates — that “it is relevant to consider the background and experience of the applicants in relation to the current composition of the bench” when qualifications are equal. While one lawmaker who advocated for the change described “[t]he notion that women and minorities need a special preference” as “a fiction to justify racial and gender considerations,” the data shows that Utah has one of the least diverse judiciaries in the country and received the lowest representativeness ranking of any state.
States must work diligently to promote diversity and address biases. The ACS dataset gives appointing bodies the opportunity to identify the voices currently missing from their state courts and implement measures to create a more representative judiciary. Investigating diversity gaps can also inform efforts to actively recruit diverse candidates, which research shows is a crucial determinant of who reaches the bench in both appointive and elective systems. Only after taking this hard look in the mirror, can we begin to strengthen our courts.