Last week, a group of African American voters sued Alabama under the Voting Rights Act, alleging that its system of at-large elections for the state’s three appellate courts discriminates against black voters. Since 1994, every black candidate for the state’s 19 appellate judgeships has lost to a white candidate. As ThinkProgress noted, “At-large elections have been a common tactic across the country” to minimize the political influence of voters of color. A similar lawsuit was recently filed in Texas. Around 40 percent of Texas’ population is Latino, yet only 5 of the 76 justices who have served on the Texas Supreme Court since 1945—a mere 6.6 percent—have been Latino.
Texas and Alabama are not alone in their courts’ failure to represent the people they serve. America’s judges do not reflect the country’s great diversity, and this discrepancy has significant ramifications for Americans’ perceptions of the justice system. New research shows an alarming lack of women and people of color on court benches. This lack of diversity certainly affects decision-making—because only certain points of view are represented—as well as how Americans perceive the courts that serve them. At a time when racial discrimination is at the center of the American political conversation, a more diverse judiciary could make great strides toward establishing a fairer justice system. Policymakers must ensure that diverse lawyers have a path to the bench and dismantle the structural barriers that keep women and people of color away.
Diversity on state and federal courts
State courts handle more than 95 percent of America’s court cases, and they continue to be run primarily by white male judges. A recent report on racial and gender diversity from the American Constitution Society found that white men comprise 58 percent of state court judges, even though they make up less than one-third of the population. Less than one-third of state judges are women, and only 20 percent are people of color. Meanwhile, Latinos constitute 17 percent of the U.S. population, African Americans 12 percent, and Asians and other people of color 8 percent. Women of color comprise nearly one-fifth of the overall population but only 8 percent of state judges.
The report further examined the diversity of each state’s courts, grading them on an A through F scale. Only nine states received a passing score; more than half received an F. For example, people of color account for only one-quarter of Texas judges, even though whites account for less than half of the state’s population. A 2015 Center for American Progress report explored this issue further, discussing two Latino justices who lost their seats to challengers who admitted that they thought Texas voters would reject Latino candidates.
The recent Voting Rights Act lawsuits also point out the lack of ethnic diversity on the Texas and Alabama Courts of Criminal Appeals, which have seen even fewer justices of color. Judicial diversity is particularly important in criminal cases. Not only are nonwhite Americans represented at disproportionately high rates in the criminal justice system, but the judges who are hearing those same cases are disproportionally white. Only 5 percent of state trial court judges are Latino, and only 7 percent are black, according to the American Constitution Society report.
The racial and ethnic diversity of the nation’s federal courts is slightly better, thanks in part to President Barack Obama’s noteworthy efforts to appoint judges who reflect the diversity of the country. Of the 1,352 active and semiretired federal judges, 60 percent are white men, while only 11 percent are black and 7 percent are Latino. Just one-quarter of federal judges are women. And a mere 7 percent of federal judgeships are held by women of color, according to research for an upcoming Center for American Progress report.
The importance of diverse perspectives
After Justice Sonia Sotomayor faced criticism for pointing out that a “wise Latina” judge may “reach a better conclusion” than a white male judge, many criticized her for arguing that white judges are not as good at their jobs. While the ethnicity of judges has nothing to do with the quality of their legal reasoning, diversity is important because of the need for broader perspectives that can be brought to bear on the real-world issues facing judges in complex cases.
In June, a scathing dissent from Justice Sotomayor—the only woman of color to ever serve on the U.S. Supreme Court—highlighted the importance of having diverse perspectives and life experiences on the bench. The Court had ruled that if a police officer illegally stops an individual without reasonable suspicion and discovers an arrest warrant for that individual, then the previously illegal stop is legitimized and any evidence seized during the stop can be used in court. This decision issued a serious blow to Americans’ Fourth Amendment rights against unreasonable search and seizure.
Justice Sotomayor argued that it was an example of how the Court gives police too much discretionary authority over the communities they serve—particularly people of color, who are disproportionately targeted by these stops. Justice Sotomayor warned that the ruling tells those Americans that they “are not … citizen[s] of a democracy but the subject[s] of a carceral state, just waiting to be catalogued.” Perhaps drawing from her experiences as a woman of color, Justice Sotomayor added that “unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name,” including trauma and post-traumatic stress. She warned that “the countless people who are routinely targeted by police … are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”
Justice Sotomayor brings a vastly different perspective to the Court than her colleagues. An awareness of the consequences of how the law operates differently for women or people of color is just one reason why Americans need more diversity at all levels of the nation’s court system. U.S. court rulings remain largely driven by a white male perspective. The effects of discrimination may be more obvious to a woman or a person of color, and that perspective is important on the bench. One of the Alabama lawsuit plaintiffs noted that diversity “would give judges a better sense of the America we live in.”
When judges rarely look like the communities they serve, individuals in those communities may develop a mistrust in the justice system’s capacity to be just and fair to everyone, as demonstrated in communities such as Ferguson, Missouri, where the U.S. Department of Justice documented abuses against African Americans and low-income people in the municipal court system. Women and people of color obviously bring unique understandings to issues such as criminal justice, immigration, affirmative action, and reproductive rights and health. But they also bring different perspectives on more mundane issues, from tax law to intellectual property. As the country changes and grows, its courts must represent the fullness of the American experience.
There are qualified women and people of color who could fill state court benches, but the systems currently in place inhibit efforts to increase diversity. Building a strong pipeline from colleges to law schools and a career track to the bench for women and people of color are crucial steps toward more diverse courts.
Advocates for judicial diversity should also push for reforms to minimize the role of money in judicial elections, which can be a barrier for candidates of color. North Carolina saw greater racial diversity on its appellate courts after offering public financing to candidates who qualified by raising small contributions. Additionally, those with a role in deciding which judges are appointed or confirmed to the bench must be pressured to make diversifying the courts a top priority.
These steps are necessary if courts are to reflect the nation’s rich diversity. And a more diverse judiciary is an important step toward a more just and equal America.
Michele L. Jawando is the Vice President for Legal Progress at the Center for American Progress. Allie Anderson is a former intern at Legal Progress and is currently a senior at the University of Virginia.