The subject of judicial diversity has been an interesting topic of coversation for years, but the effect of diversity in Arizona courts and across the country should really only be studied from recent history. Until the mid-1970s women and minorities were virtually absent in judicial positions. The good news is that the landscape has changed substantially.
Editor’s Note: What follows is an edited transcript of a speech by former Chief Justice Ruth McGregor of the Supreme Court of Arizona at the Carnegie Center for the Judicial Diversity Project’s Phoenix Kickoff event.
The subject of judicial diversity has been of interest for many of us for a very long time. But the effect of diversity on our courts could really only be studied fairly recently because as of the 1970s there were very few persons on our courts who were not white males. Until the mid-1970s women and minorities were virtually absent in judicial positions. The good news is that the landscape has changed substantially since the mid-1970s. In 2005 more women and minorities have stayed with our courts and have gone from being practically almost absent to making up about 36 percent of the positions.
In 2005, women and minorities accounted for 28 percent of the federal positions. That is the good news. The bad news is that the numbers haven’t really changed a lot during the past 10 years.
Arizona has stayed pretty consistently at 30 percent women and about 15 percent minority of judges on both the trial and the appellate courts. On the federal bench 32 percent of district and appellate positions are now held by women. But how helpful the number there are overall, it depends to some extent of what you do.
While the number of female Asian American judges has quintupled, the percentage of black males in judicial positions has actually decreased. It’s also worth noting that those numbers for minority women nominees will increase if the pending nominees are confirmed by Congress.
In my opinion there are two primary ways that greater diversity benefits our judicial system. One of the benefits about which most people seem to agree involves the greater likelihood that women and minorities using the courts are more likely to perceive the courts as fair if they see judges that look like them.
Survey after survey has demonstrated that one’s view of the fairness and impartiality of the justice system is powerfully impacted by the race and gender of the respondent.
For example, a recent survey conducted by the federal court system confirmed these results. When asked whether Florida treats Caucasians and minorities alike, 70 percent of non-Hispanic whites said yes. But only 43 percent of minorities agreed.
And the difference, as Florida found, extended to gender as well as to race and ethnicity.
The survey asked whether courts treat men and women alike. And 82 percent of the male judges said yes. But only 65 percent of the female judges said yes. The greater incentive for justice has known that greater diversity should work to enhance the legitimacy of our system of justice as we deal with an increasingly diverse population.
So, as we saw, we should begin to see gradually greater faith in the system expressed by women and minorities. That is a very positive result for greater diversity.
But is that all that our efforts toward greater diversity must avail?
Should we be satisfied by the fact that those sitting behind the bench now include more people of a different race or more different shades of color skin? I think not.
I would conclude based on my own experience and also on a research study examining the impact of diversity that greater diversity on the bench actually results in better judicial decision-making, particularly on appellate courts where decisions reflect the combined views of a number of judges. Those who are opposed to the notion that diverse experiences can actually benefit our courts often assert that such a notion is incompatible with the idea of an impartial judiciary.
Without question our judges must perform their duties without bias or prejudice. But in contrast to the likes of prejudice diverse experiences can be used in appropriate instances to allow judges to more fully analyze and better understand the issue that is presented to them. We are going to see that in all sorts of ways with various things from judges’ backgrounds in the ways that different factors can produce richer and more detailed analysis. Lawyers should look to create such diverse areas of substantive knowledge — whether an appellate judge should draw from experience, whether someone could draw from experience of a prosecutor or a defense attorney, whether somebody could draw from the experience in the political branches of government.
All those factors do matter when we refer to the judiciary as more diverse. But if that was true, is there any incentive to doubt that a judge’s background reflects his or her experience as related to gender or race or national origin or sexual orientation also could be helpful involving a discussion?
Scientists in studies have suggested that diversity does have a positive impact on decision-making. One of the most interesting was conducted by a doctor, Sam Sommers, at Tufts University. Dr. Sommers, using mock juries, studied the relationship between judicial racial diversity and the processes of group decision-making. He was trying mock juries with panels of six. Each was either all-white or four white with two black members. And the juries would consider criminal factual situations that involved race-related issues. The results were interesting.
Dr. Sommers discovered that the diverse groups discussed significantly more case facts than did the all-white juries. The deliberations included significantly fewer inaccurate factual statements and that the diverse group discussed significantly more race-related topics than did the all-white juries. Now, if these results are true for our jury deliberations could they also be true for judicial deliberations? I suspect they are.
Then the result of that should be discussions that are more informed, more accurate and broader in the issues that are considered. It’s difficult to find more positive results.
There’s more interesting work being done at Columbia University.
That study revealed that the presence of one female on a panel of three increased the probability that the male judge would vote for the plaintiff in an employment discrimination case by 19 percent, although the presence of a minority judge did not impact the decisions one way or the other.
The results of these studies are consistent with my own observations as an appellate judge for the past 20 years.
The presence of diverse judges — whether it be gender or race or any other unique part of the judge’s background — broadens the discussion in the analysis. Applying that additional understanding impacts judicial decision-making and does so in a matter that is entirely consistent with the required judgeship of the law.
The reason that diverse races makes it different seems to be related to the impact of diversity in the discussion on our implicit biases. All of us — at least most of us — hold such implicit biases. But we don’t always recognize their presence. We understand most of us that we need to correct for implicit bias. But doing so requires that somebody should make us aware of our bias such as your diverse points of view.
Indeed in decision-making where only one view is being heard or only one judge is being considered during judicial deliberations, how certain can you be that the deliberation is in fact impartial.
I think it’s instructive to consider how some well-known Supreme Court decisions might have changed — in language if not in outcome — if the membership of the court was more diverse.
In 1944 the court announced the decision that the United States Supreme Court upheld the criminal prosecution for Mr. Korematsu, who was a United States citizen of Japanese ancestry for knowingly violating the military order to leave his home and report to the detention center.
Would the discussion or the analysis have been different if one Japanese American justice had joined that discussion?
What about the court denying the right of Myra Bradwell the right to practice law?
Justice Bradley felt compelled to point out that not only should she not be a member of the bar, but in “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”
Perhaps that view or at least that language would have been absent from the decision of the court if a woman justice had been present.
Would the standard adopted to test gender discrimination been different if Ruth Bader Ginsburg had been sitting as a justice there rather than acting as lawyer for the plaintiffs. And if Justice Thurgood Marshall had been part of the discussion in 1896 would the courts’ characterization of separate but equal facilities and the impact of those separate facilities have changed in Plessy v. Ferguson.
And I think we can all expect that at least the discussion would have been different. Diversity is important both to continue public confidence in the courts and to the quality of judicial decision-making. Our efforts to increase diversity must grow.
Ruth V. McGregor is a former chief justice of the Arizona Supreme Court until her retirement in 2009. She was appointed by Gov. Jane Dee Hull in 1998.