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Study Finds Extreme Lack of Gender, Racial/Ethnic Diversity in State Courts

by Derek Gilna

A new report, "Gavel Gap: Who Sits in Judgment on State Courts?,” by Professors Tracey E. George and Albert H. Yoon, of Vanderbilt Law School and Toronto Law School, respectively, found that state court judges at both the local and appellate levels are less diverse than the U.S. population as a whole. To reach that conclusion, they “constructed an unprecedented database of state judicial biographies ... [including] more than 10,000 current sitting judges.”

The report, released in June 2016, noted that 90% of all judicial cases in the United States are heard by state court judges, and that “for most individuals and organizations, state courts are the ‘law’ for all effective purposes.” George and Yoon reported that “women comprise roughly one-half of the U.S. population and one-half of American law students [but] less than one-third of state judges are women.”

According to Prof. George, “We need a judiciary that reflects the population and we do not have it right now. A state court judge has tremendous power and discretion in resolving cases ... [and] is not only the most significant person resolving thousands of legal disputes that directly impact everyday Americans, they are often the only person.”

Former President Obama suggested that justice is best served when those deciding cases look more like the community they serve, and George agreed: “When people do not see themselves represented in their community leadership, when the vast majority of judges cannot relate to the ... experience of those they serve – this is a problem.”

For example, 80% of state trial court judges are white, 7% are black and 5% are Hispanic, compared with the demographics of the defendants who appear before those courts: 30% white, 44% black and 24% Hispanic.

More than half of state trial court judges and appellate judges are white men, the report found. And based on U.S. census data, according to the report, “women of color are the most underrepresented group (only 40% of their relative numbers in the general population) while white men are overrepresented (nearly double their relative numbers).” Also, as the authors noted, “in a near majority of states (24), minority judges fell below 50% of proportional representation of the general population.”

However, it was in the state-by-state comparisons that the inequity in judicial diversity came into much sharper focus. Twenty-seven states received a grade of “F” for gender diversity while 32 states received an “F” for racial and ethnic diversity, based on having representation of 60% or less for the proportion of women and minorities on the bench in comparison to the general population.

West Virginia had the dubious distinction of the lowest score for gender diversity, closely followed by Idaho, Mississippi and Utah. The most representative state with respect to female judges was Oregon.

In regard to racial and ethnic diversity, the least diverse state courts were in Vermont, followed by North Dakota, Maine and Alaska. In Montana, the percentage of minority judges most closely matched the state’s general population.

However, when both the gender and racial/ethnic diversity of state judges were compared together, Utah was the least diverse state overall, followed by West Virginia and North Dakota. Hawaii had the most diverse judiciary with respect to combined gender and racial/ethnic representation.

According to the report, its findings should first “inform the current method of identifying and selecting judges. Second, they demonstrate that we need a better process for developing a pipeline of women and minorities to serve as judges.... Our judicial system depends on the general public’s faith in its legitimacy.”

The authors concluded, “Our legal system is premised on the idea that judges can understand the circumstances of the community they serve. If we can’t meet that presumption, then we may need to reevaluate the role of courts in our society.”

The report examining diversity among state court judges, which was produced with support from the American Constitution Society, followed an unrelated study on diversity among prosecutors, which found that around 95% of elected state and local prosecutors are white. [See: PLN, Feb. 2017, p.44]. 



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