Judicial Selection and Racial Diversity:Gender, Race, and Judicial Careers

The Selection of African Americans to State Supreme Courts

Kathleen A. Bratton

Department of Political Science

Louisiana State University

Kaitlyn L. Sill

Department of Political Science

Louisiana State University

A version of this paper was presented at the Paper prepared for presentation at the 2007 Annual Meeting of the Midwest Political Science Association (Chicago, IL). I am incredibly grateful to Kathleen Bratton and Rorie Spill for their generous provision of the data used in this study. However, all analysis, conclusions and mistakes are my own.

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The last two decades have witnessed a dramatic increase in gender and racial diversity on state and federal courts. Before 1980, the appointment of a female or African-American judge to a state supreme court was still a relatively rare event. By 2007, in contrast, over one-third of all state supreme court seats were held by women or minorities. In the last two decades, scholars of judicial politics and of representation have examined both the influence of selection systems on the appointment of women to the bench (e.g., Alozie 1996; Bratton and Spill 2002; Hurwitz and Lanier 2001, 2003; Williams 2004) as well as the influence of race and gender on judicial ambition (Jensen and Martinek 2009; Williams 2008). Less attention has been paid to the factors that influence the selection of African-Americans to the bench (for exceptions, see Hurwitz and Lanier 2001, 2003; Bratton and Spill 2005), and to the relationship between sex, race, and the decision to voluntarily retire from the court. In this paper, we address these questions in the context of state supreme courts from 1965 through 2007. What factors influence the selection of women and African-Americans to state supreme courts? What role—if any—does the actual manner of selection (and the state’s formal selection system) play in the selection of women and African-Americans to state supreme courts? What factors influence the voluntary retirement of state supreme court judges—and how does the sex or race of a justice influence the decision to retire?

Gender, Race, and Judicial Careers

A variety of arguments have been made for the importance of gender and racial representation within the government. In particular, scholars have examined the link between descriptive representation and representative behavior and outcomes. In Pitkin’s seminal account of descriptive representation, "The representative does not act for others; he 'stands for' them, by virtue of a correspondence or connection between them, a resemblance or reflection" (1967, p. 61). The core of political representation, however, is substantive: "representing here means acting in the interest of the represented, in a manner responsive to them" (Pitkin 1967, p. 209). Scholars have devoted considerable attention to examining whether and how descriptive representation translates into substantive behavior and outcomes of political officials. The studies that have explored the effect of descriptive representation within courts have found some support for the expectation that gender and race influences judicial behavior, although the evidence is at best mixed (e.g. Collins and Moyer 2008; Davis, Haire and Songer 1993; Hettinger, Lindquist, and Martinek Segal 1997, 2000; Songer, Davis and Haire 1994).[1] Recent research has likewise indicated that under some conditions, diversity within courts can influence judicial outcomes, independent of potential sex or racial differences in individual level judging (e.g. Moyer 2008).

Less attention has been paid to the selection of women and minorities to the court—that is to the creation of judicial diversity rather than to the influence of judicial diversity on decision-making and outcomes. The prior research that does exist has examined the influence of selection systems on the selection of women and (to a lesser extent) minorities to the bench, and explored the impact of sex on judicial ambition and candidate success. This focus on the influence of selection systems is not surprising, given that one argument for the adoption of merit systems was based on the expectation that they would recruit a more diverse set of judges Alozie 1996; Githens 1995; Goldman 1997. Notwithstanding these expectations, the influence of selection system on gender and racial diversity in state courts appears to be rather minimal. Hurwitz and Lanier (2001, 2003), for example, have found no consistent significant effect of selection system on the number of minorities serving in state courts in 1985 and 1999; selection system has virtually no effect on the number of women serving on state courts during these years, a conclusion reinforced by Williams (2008). Alozie (1996) likewise found no influence of judicial selection system on the selection of women to state courts, a conclusion reinforced by Williams (2008).

Bratton and Spill minorities serving of state courts in 1985 and 1999 of gender and research (e.g. Jensen and Martinek 2009; Williams 2008) has found that women in the judiciary are actually more likely to express ambition than men; research has also found that the selection system

Much of the research examining the relationship between descriptive and substantive representation has focused on legislatures (e.g. Bratton and Haynie 1999; Canon 1999; Preuhs 2007; Swers 2002); significantly less attention has been paid to whether and how diversity shapes judicial decision-making and outcomes.

Most literature on political careers has focused on A variety of arguments have been made for the importance of gender and racial representation within the government. In particular, scholars assert that descriptive representation affects representative behavior and outcomes. In descriptive representation, "The representative does not act for others; he 'stands for' them, by virtue of a correspondence or connection between them, a resemblance or reflection" (1967, p. 61). The core of political representation, however, is substantive: "representing here means acting in the interest of the represented, in a manner responsive to them" (Pitkin 1967, p. 209). Much of the research examining the link between descriptive and substantive representation has focused on legislatures (e.g. Bratton and Haynie 1999; Canon 1999; Preuhs 2007; Swers 2002); significantly less attention has been paid to diversity on courts. The studies that have explored the effect of descriptive representation within courts have found some support for the expectation that gender and race influences judicial behavior, although the evidence is mixed (e.g. Collins and Moyer 2008; Davis, Haire and Songer 1993; Hettinger, Lindquist, and Martinek Segal 1997; Songer, Davis and Haire 1994)[2]

The question of how courts become and remain diversified has received even less attention from scholars. The timing and manner in which judges enter into and leave office is critically important. The factors that influence the decision to retire from office influence both the composition of the representative body and its continuity and stability. As Moore and Hibbing (1998) note in their work on retirement from the U.S. Congress, the degree to which political institutions can attract and retain members is an important component of democratic government. These questions are equally important in the context of the judiciary. In order to fully assess the potential influence of descriptive representation on the courts, we must understand not only how gender and race shape judicial behavior, but also the factors that influence the selection and retention of women and minorities to the bench.

Most scholarship on sex, race, and judicial politics has focused on the link between the sex and race on the judges and judicial decision-making. The studies that have explored the effect of descriptive representation within courts have found some support for the expectation that gender and race influences judicial behavior, although the evidence is mixed (e.g. Collins and Moyer 2008; Davis, Haire and Songer 1993; Hettinger, Lindquist, and Martinek Segal 1997; Songer, Davis and Haire 1994)The prior research that does exist has focused on the influence of selection systems on the selection of women and (to a lesser extent) minorities to the bench, and on the impact of sex on judicial ambition and candidate success. This focus on selection system is not surprising, given that merit systems was based on the expectation that they would recruit a more diverse set of judges. are designed in part to recruit a diverse set of judges (Alozie 1996; Githens 1995; Goldman 1997). Hurwitz and Lanier’s (2003) found no consistent significant effect of selection system on the number of minorities serving in state courts in 1985 and 1999; selection system had virtually no effect on the number of women serving on state courts during these years. Bratton and Spill minorities serving of state courts in 1985 and 1999 of gender and research (e.g. Jensen and Martinek 2009; Williams 2008) has found that women in the judiciary are actually more likely to express ambition than men; research has also found that the selection system

Williams 2008

(Yet this question is as important as the question of the relationship between…)

Martinek and Jensen There are a few studies that have examined the selection of women and minorities to to the bench (e.g., Alozie 1996; Bratton and Spill 2002; Hurwitz and Lanier 2003) In particular, few studies have examined the how variations in judicial selection systems impact the racial diversity courts, and the results from those studies have been conflicting and inconclusive. Even fewer studies have empirically explored the role that tokenism plays in limiting racial representation on courts. This paper addresses both gaps in knowledge. Examining the selection of blacks to state courts of last resort from 1980 to 1997, I first examine whether selection mechanisms influence the likelihood of a black judge being selected to the bench. Then, to evaluate whether blacks are limited to token status, I explore the effect existing racial composition of a court has on the selection of black judges. With this study I hope to expand the breadth of knowledge on diversity on courts.

Judicial Selection Systems and Diversity

Five formal selection systems are used to select judges to state courts: executive appointment, Missouri plan or “merit” appointment, legislative election, partisan election, and non partisan election (Berkson 1980). These formal systems essentially boil down to two broad categories in which judges are initially selected: appointment or election. Based on prior research, I expect that officials appointing judges (governors or selection committees) are more likely to respond to political pressures to diversify courts than voters (Alozie 1996; Graham 1990; Bratton and Spill 2002). Thus, I anticipate that minority judges are more likely to be appointed than selected.

A small number of studies have been conducted examining whether selection systems effect the selection of minorities; however, no consensus has been reached (Githens 1996; Alozie 1996; Goldman 1997). Some studies have found that minorities, both racial and gender, are more likely to be appointed than elected. For instance, Graham (1990) examined state trial court judges within 36 states in 1986 and found that black judges were more likely to be selected to the bench when they were appointed. Similarly, the Fund for Modern Courts (1985) and Bratton and Spill (2002) find that women were more likely to be appointed rather than elected. On the other hand, other studies have failed to find any difference in the selection of minorities due to selection methods. Alozie (1988) found that black judges were no more likely to be selected by appointment or elections. Further, Alozie (1990) studied the selection of blacks and females to lower state courts and found no effect of selection mechanisms. Similarly, Alozie (1996) also examined the selection of women to state courts of last resort and found no effect. Thus, the studies examining the effect of selection mechanisms are contradictory and inconclusive.

These results are conflicting, in part, due to complications causing variations in identifying the method with which judges are selected. Each state has a formal system with which judges are selected; however, oftentimes judges are selected through informal mechanisms that differ from the expressed, formal system. For instance, in many electoral systems, judges can be informally appointed when vacancies occur between elections. Thus, the actual method in which a judge was selected may differ drastically from the formal method. Identifying the actual method of selection rather than the formal method is difficult and often times impossible. As such, a number of the studies of selection systems have examined the formal process of selection, ignoring the actual method used(e.g. Alozie 1988, 1990). These studies fail to adequately examine the effect of the actual system used for selection. Other studies identify the actual way in which judges were selected regardless of the formal system (e.g. Bratton 2002; Fund for Modern Courts 1985; Graham 1990). This difference in the identification of selection mechanisms can lead to different findings across studies (Graham 1990).

In addition to the inconsistencies in identifying selection mechanisms, the findings of previous studies are further limited due to the time in which they were conducted, the later 1980s and early 1990s. At the time of these studies, racial minorities were just beginning to be selected to judgeships in significant numbers. As a result, the studies tend to focus on the composition of courts in a single year and can not control for factors specific to when a particular judge was selected, such as the current composition of the court. Furthermore, since racial minorities had yet to ascend to higher court positions, the studies are limited to lower courts in which a sufficient number of minorities were selected. Focusing on lower courts may diminish the potential effect of selection mechanisms because lower court judgeships tend to be less politically salient and less visible. Additionally, since lower court positions tend to be elected according to districts, controlling for electoral specific characteristics, such as demographic composition or ideology is not possible, thus the effect of elections may be skewed.

This study compensates for the limitations of previous studies and thus provides a more comprehensive examination of the effect of selection systems. First, I examine the actual method in which judges were selected thereby gaining a more accurate measure of the effect of selection mechanisms than relying on formal systems alone provides. Second, I examine the selection of judges to state courts of last resort over a twenty year period. Examining state courts of last resort is especially useful since the effect of selection systems should be most evident there due to the high salience and political importance of the seats. State high courts are often the final arbiters of law since few cases are heard by the US Supreme Court, thus the selection of those seats has increased political ramification (Alozie 1996; Neely 1981). Furthermore, since they are often the most visible courts in a state in terms of politics and elections, the information provided to voters or the political pressures placed on appointing politicians should be at their apex. Finally, state high court positions are statewide positions, so by examining them, I am able to control for constituency related factors. With the correction for these limitations of previous work, I hope to provide greater leverage and insight into understanding the effects of selection systems on racial diversity.