Judicial Diversity: Methods of Selection

I was recently in a conversation on increasing diversity in the judiciary. Having no knowledge on the subject, I did what any scientist would do, research (with the help of a friend). I am making my findings available to others. This is not an exhaustive literature review of the subject. The following is a non-expert overview of methods of judicial selection.

Introduction

Judicial diversity is important for public confidence in the legitimacy of the courts and for the quality of the opinions (Ifill 2009, Scherer 2011). However, systems often default to counting individuals of color. A strategy that often results in achieving neither goal – Clarence Thomas

There are many methods of judicial selection. However, they are all variations and combinations of two methods: elections and appointments. In elections, the judges are chosen through an electoral process. In appointments, an individual, or group, selects the judges who are then appointed.

Findings

There is no compelling research, that definitively identifies which method or methods of selection increases diversity (Hurwitz 2010, Williams 2004). One of the research challenges, is the diversity of selection methods coupled with the demographic complexities that exist across jurisdictions and the types of judicial appointment (Graham 2004). For example, the number of seats on appellate courts aid in gender diversity while the number of African-American lawyers in the state helps in race diversity.

Elections as a method of selecting judges are often favored by minority communities. Decades ago, elections had an effect on increasing diversity. However, they do not have the same impact today (Hurwitz 2010).

Recommendations

Many recent recommendations on increasing diversity focus not on the electoral process, but on ensuring diversity through the various components of the appointment process (e.g. Brennan Center for Justice’s Judicial Diversity: A Resource Page).

Others point out that the problem is not in counting the members on the bench but in raising or maintaining perceived legitimacy of the courts:

“The time has come to consider abandoning current approaches and devise a new appointment strategy that may be capable of achieving universal legitimacy. That new strategy should focus on raising levels of legitimacy among minorities while maintaining the already high levels of legitimacy among whites. Under this scenario, all races could achieve comparable levels of legitimacy.” (Scherer 2011)

Background information

The Brennan Center for Justice has an excellent interactive map of judicial selection process by state. Additionally, they have a glossary that helps navigate the many terms (e.g. election vs retention election.

Sample References

Graham, B.L 2004. 10 Mich. J. Race & L. 153

Hall 1992. Electoral Politics and Strategic Voting in State Supreme Courts. The Journal of Politics Vol. 54, No. 2. pp. 427-446

Hurwitz 2010. Options for an Independent Judiciary in Michigan. 56 Wayne L. Rev. 691

Ifill, S. 2009. Judicial Diversity. 13 Green Bag 2D 45

Scherer 2011. Diversifying the federal bench: Is universal legitimacy for the U.S. justice system possible? 105 Nw. U. L. Rev. 587

Williams, K. Brennan Center for Justice Symposium: Diversity, Impartiality, and Representation on the Bench, 10 Mich. J. Race & L. 1 (2004).