A Principled Approach to the Quest for Racial Diversity on the Judiciary

Luis E. Fuentes-Rohwer, A Principled Approach to the Quest for Racial Diversity on the Judiciary, 10 Mich. J. Race & L. 5 (2004).

Abstract:  As has been the case with respect to many political and social institutions in American society, diversity has been demanded, and at times pursued, in the nomination and appointment of state and federal judges. Nonetheless, commentators have long lamented the lack of diversity among judges in the United States.

U.S. Supreme Court appointments epitomize the glaring lack of diversity on the federal judiciary. Not until 1967 did President Lyndon Baines Johnson appoint the first African American Justice, Thurgood Marshall, to the Court. Since then, a more diverse group of judges has served on the state and federal courts than throughout much of U.S. history. Work remains to be done, however. No Latina/os, Asian Americans, or Native American have ever served on the U.S. Supreme Court. Relatively few African Americans, Latina/os, and Asian Americans, and no Native Americans serve on the federal bench today.

Scholars rarely analyze what concrete impact diversifying the judiciary may have on the operation of the courts, including judicial decision-making and the public’s perception of the justice system. Even if advocating greater diversity among judges, few observers have been particularly clear about the concrete benefits to be gained by appointing and nominating a more diverse cadre of judges.

This article, which is part of a symposium on judicial selection, explores the substantive impacts that increased racial diversity of judges might have on the decision-making process as well as in how the general public views the courts, as fair and impartial tribunals or not. This article brings to bear fundamental tenets of Critical Race Theory – specifically, the concept of a “voice of color” – on the analysis of the possible impacts of greater racial diversity on the courts. It further analogizes the judges to juries and contends that, as diversity among juries does, pulling a group of judges from a cross section of the community may both benefit the decision-making process and improve public perceptions of the impartiality of judicial decision-making.

Importantly, a more diverse judiciary is more likely to be an independent judiciary. To the extent that judges are racial minorities, they can be expected to be more independent than other judges.

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