Unequal Opportunities: Education Pathways to the U.S. Judiciary

This paper is about diversity in federal and state courts in the United States. My main argument is that we should promote a judiciary that is reflective of the society of which it is a part for three reasons:  first, because in doing so, we gain critical awareness of barriers to judicial service; second, because in doing so, we are also promoting access to resources, education and opportunities in the legal profession; and third, because it is possible (although not automatic) that a reflective judiciary will broaden the range of experience and perspective on the matters involved in the cases themselves.  I will focus primarily on the first and second of these points, with some attention to individual judges in the paper’s closing section. In the U. S., members of the bar become judges usually after a distinguished career in practice or the academy. There are no civil service exams to enter the judiciary. Under the U.S. Constitution, federal (i.e., Article III) judges reach the federal bench via presidential nomination and senatorial confirmation. States systems are separate.  State judges attain their positions in various ways.  The formal routes include election (partisan or nonpartisan), gubernatorial appointment, legislative appointment, or nomination by commission, otherwise known as the merit system. The customary understanding of merit selection includes a nonpartisan or bipartisan commission that nominates a limited number of individuals to the executive when a judicial vacancy occurs, for executive appointment, with continuing tenure on the bench dependent upon a subsequent retention election.  In such elections, the judge is unopposed on the ballot; voters decide whether or not to retain the judge. Some state judges are elected directly by the public, like any other candidate for public office in a partisan election. Diversity of the bench is directly related to how judges are appointed and, especially, the candidate pools from which they are appointed.  Therefore, the consequences of a broadly conceived sense of diversity will not only foster judicial legitimacy, but also the most fundamental values inherent in our society—democracy, fairness and, as I will especially argue below, access to education at all levels (primary, secondary, college and law school). For the judiciary to be truly reflective of society, candidate pools must also be reflective. For this to occur with regularity, access to education is necessary at all levels of society. Education is the primary pathway to the bar and ultimately, the judiciary. A reflective judiciary is, therefore, like the canary in the mine—an indicator of access to education and to professional opportunity within the legal profession. When barriers exist to education, barriers exist to the judiciary as well. I could not, therefore, disagree more with Chief Justice Roberts than when he sought to bar the use of race to determine which public schools certain children may attend. He stated: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." I disagree, because the evidence shows that various creative policy initiatives are necessary if we are to attain a non-discriminatory society through educational opportunity. In part one of this paper, I will discuss various pathways to the federal and state judiciaries--gateways and impasses (“bottlenecks”). I will emphasize access to education and the role education plays as a gateway. As we shall see, progress has been made in the United States in the decades since the Civil Rights Act of 1964, but barriers persist.  This is evident in the patterns of minority and female participation on the federal and state appellate bench:  appointment favors men over women, and whites over minorities.  We will look within those patterns to identify further gateways and bottlenecks. In part II, we then look to the human side of the law –namely judges-- and discuss, briefly, illustrious judicial careers whose existence is owed to diversity in the federal judiciary… (continues)