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.


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.


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).


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).

Debunking the Myth of Oyster Reefs

In the 2018 Maryland Assembly general session I testified regarding SB 926. A law that, among other things, identified oyster shell as the preferred substance to be used to create oyster reefs. The supporters of the bill were on point and on message. According to the supporters, oyster shell is the best material for healthy oyster reefs. They had a good idea, that oyster reef criteria are necessary, unfortunately their choice of material is based on a persistent myth.

There is a myth that oyster shell is the best and only substrate for oyster reefs.  There is no science to support this and in fact the opposite has been proven. Researchers from the US and around the world have studied reefs made of many different substrates. These researchers (and I was one of them) consistently find that these alternative substrates perform as well — and sometimes better — then reefs made from oyster shell.

This myth may have evolved from the findings that oyster larvae have a higher set rate shell than other substrates. Research has shown that oysters will set on almost anything hard.  They set at a higher rate on oyster shell.

But this is just the first day of an oyster’s life. When we look at these reefs over time though oysters shell may start off with a higher number of oysters, these number equalize over time. The results of long term data show that reefs sampled 3, 5, and 15 years after being set show no difference between shell and other materials.

I know that debunking a myth is hard, but the science has proven that there is no difference between oyster shell and other materials when creating a healthy oyster reef. When dealing with the Chesapeake Bay we cannot go forward with what we believe, what we’ve always known, or what we hold dear. We must base our decision on what we can prove is in the best interest of the Bay.

More information on the research regarding alternate material can be found here .

Regionally Based Hatchery

A key element of our plan is the ability to secure a long-term lease of Piney Point Aquaculture Center, a profitable operating hatchery here in Maryland.


Currently run by Maryland’s Department of Natural Resources, the agency has approached Open Shell, through its relationship with Morgan State University to take over the management and operation of this facility.


Founded by Dr. Kelton Clark PhD and Peter Ettinger, OpenShell’s mission is to create sustainable growth of the shellfish aquaculture industry.

Open Shell is focused on creating sustainable growth in the shellfish aquaculture industry through our ability to identify and implement market-based solutions to industry challenges. We provide infrastructure and production support that removes bottlenecks to production and growth.

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While starting out in Maryland, Open Shell will change a national and international industry, creating sustainable growth of the oyster shellfish aquaculture business.

OpenShell’s Partners include:

  • True Aquafarms
  • True Chesapeake
  • Oysters Inc.
  • Morgan State University
  • College of Southern Maryland




License, Own, and Introduce Impactful Intellectual Property

Open Shell’s strengths rest in our ability to create and exclusively license significant intellectual property that will change the productivity of the shellfish aquaculture industry.

OpenShell is developing focused technological solutions that:

  • Address mortality and morbidity of product,
  • Expand the sales of seed and larvae through the introduction of micro-hatcheries, and
  • improve broodstock lines.