Gender, Race, and Judicial Careers
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 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
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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 decisionmaking 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
1 Scholars of legislative politics have found some mixed evidence of other benefits of descriptive representation, at least under some conditions, including increased voter participation (Banducci, Donovan, and Karp 2004; Bobo and
Gilliam 1990; Griffin and Keane 2006), enhanced communication between constituents and representatives (Gay
2003), and increased constituent satisfaction (Lawless 2004; Tate 2001). There are of course potential costs to descriptive representation, including essentialism (or the assumption that all group members and only group members can represent those with who share that identity—and presumably are less able to represent others), weakened ties to other important political groups or institutions, and a loss of accountability (Mansbridge 1999).
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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 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
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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. 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
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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
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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
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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.
Tokenism
In addition to providing a more comprehensive analysis of the effect of selection mechanisms, I examine whether the diversity of courts is limited by tokenism. Diversification of courts is often perceived to stem from the creation of a “token seat,” such as a “black seat” or a
“female seat” or a “religious seat” (Sciligiano 1971; Baum 1998). This perception is especially evident in descriptions of the selection of Justice Clarence Thomas as filling the “black seat” left by Justice Marshall (Dean 2001, 8; Flax 1999, 53). The notion of tokenism serves to limit diversification by providing a false sense of racial or minority inclusion when, in actuality, diversification does not extend beyond the “set aside” position(s). Accordingly, while diversification appears to be occurring when tokenism is in place, in actuality the limited level of it serves to curtail increased diversification.
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Despite the perception that judicial diversification if limited to tokenism, scholars have not evaluated the potential affect that current racial composition of a court may have on whether another minority is selected. Bratton and Spill (2002) examined the effect of tokenism on the selection of women to state supreme courts. They find that the presence of a female justice significantly decreases the likelihood that another female is selected, approximately a twenty percent decrease. Thus, the presence of women as judges appears to be limited to a token status in which diversification exists only in the extent to which the appearance of it is maintained. I undertake a similar analysis with regards to racial diversification and examine whether the presence of a black justice affects whether a black judge is selected. If racial diversity is limited by tokenism, as with gender diversity, I would anticipate that when a black justice sits on a court, the likelihood of selecting another significantly declines.
To summarize, in this study I address two questions. First, I examine whether the method in which a judge is selected influence whether a black judge is selected to a state supreme court.
Second, I examine the role of tokenism in racial diversity by testing whether the presence of a black justice on a court influences whether another black justice is selected.
Data and Methods
To test the effect of selection mechanisms and the racial composition of a court on the likelihood of a black being selected to the bench, I utilize data on every justice selected to a state court of last resort from 1980 to 2002.
3
Using the selection of each individual justice as the unit of analysis, I construct a logit model to determine what factors influence the likelihood that a black judge is selected to the bench. Thus, the dependent variable is a dichotomous variable coded ‘1’ if the individual selected to the bench was black and ‘0’ if any other race.
3 Data from Bratton and Spill (2002).
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Selection Mechanism. To test the effect of selection methods, I included a variable identifying how each justice was initially selected to the bench, regardless of the formal selection system. Justices that were appointed were coded “1,” and justices that were elected were coded
“0.” If my hypothesis is correct and black judges are more likely to be appointed than elected, I would anticipate a significant, positive relationship.
Tokenism. To examine the effect of tokenism on the selection of black justices, I examine whether the presence of one or more black judges on a court influences whether the justice subsequently selected is black. To test this relationship, each observed selection was coded for whether, at the time of appointment, one or more members of the court were black.
Judges selected to courts with one or more black justice were coded “1” while those selected to courts with no black justices were coded “0.” If black representation is limited to token status, then I would expect a significant, positive relationship.
Time.
Since black judges may be more likely to be selected in later years, I include a control for time by including a variable identifying the year that each justice was selected.
Additionally, I include a number of controls variables in my model that are likely to influence the selection of a black justice. Unlike most previous studies, I am able to control for factors with measures taken relatively close to the selection of each individual justice. In particular, I control for the prestige of the judicial position (length of term and court prestige), the opportunities for blacks to be selected (number of seats on the court and proportion of lawyers in the state that are black), and state characteristics (percentage of the population that is black, liberalism of the state, and region).
Prestige . First, I control for the prestige, or attractiveness, of the position. Studies have provided some empirical support that minorities and women are more likely to be represented in
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political institutions (e.g. courts, legislatures, mayoral positions) with less prestige (Carol1985;
Diamond 1977; Hogan 2001, Welch 1979). Thus, black judges may be more likely to serve on less prestigious or attractive courts. To control for this relationship, I include two measures of court prestige. First, judgeships with longer terms are more attractive than those with shorter terms because they are more stable, so, for each justice, I included a variable measuring the length of the term of the seat he or she was selected for.
4
Second, to measure the prestige of the court as a whole, each justice was assigned a value from Caldeira’s (1983) rankings of state courts corresponding to the state court he or she was selected to.
Opportunities.
The likelihood of a black judge being selected to a court should be influenced by the extent to which they have the opportunity to be selected. The number of seats on the court and the proportion of lawyers in a state that are black should influence whether a black individual has the opportunity to be selected to a judicial positions. Larger courts may have higher turnover and greater opportunities for the selection of black judges (Alozie 1996;
Bratton and Spill 2002). Thus, I include a variable measuring the number of seats on a court and anticipate that the more seats on a court, the greater the likelihood that a black judge is selected.
Also, the size of the pool of eligible candidates should influence whether a black judge is selected to a court. Some studies look to the homogeneity of the composition of the legal profession to explain the lack of minority judges (Graham 1990; Shuman 1971; American
Judicature Society 1973). These studies argue that the primary determinant of the number of black judges is the number of statutorily qualified black lawyers in a society, and until blacks are better represented in the legal profession they will be unlikely to ascend to the bench (Graham
1990, 319).
To control for this potential explanation, I include a measure of the proportion of
4 Term lengths ranged from 6 years to 19 years or life tenure. The variable is coded as the number of years in a term with terms of life tenure given the value of 20.
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black lawyers in a state.
5
I expect that the greater the proportion of black lawyers in a state, the more likely a black judge is selected.
State Characteristics.
Characteristics of each state may also influence whether a black judge is selected. Across all selection systems, black judges may be more likely to be selected in states with higher black populations. In election systems, blacks may have a greater chance of winning with a larger black population. In appointment systems, there may be more pressure on elected officials to appoint a black justice when the black population is larger (Alozie 1990). To control for this potential influence, I include a measure of the estimated black population of each state per year from the State Politics Dataset (State Politics and Policy Quarterly Dataset 2005).
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The ideology of the state may also influence whether or not a black justice is selected. To control for this I include Berry’s (1998) measure of state liberalism in which higher values indicate a more liberal state. Finally, studies have shown that blacks are more likely to be selected to courts in southern states (Alozie 1990; Emmert and Glick 1988). Thus, I included a dichotomous variable coded “1” if a state is in the south.
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Findings
The rate of selecting black state supreme court justices appears to have been stable over time. As the graph in Figure 1 illustrates, the selection of black judges has not become more frequent in recent years. This finding is supported by the multivariate analysis, presented in
5 This measure was derived from the U.S. Department of Commerce, Census Bureau. Since the data is collected every decade instead of annually, each year is assigned the value of the nearest census. Thus, for selections in 1980 through 1984, the 1980 data was assigned. For selections in 1985 through 1994, the 1990 census value was assigned, and for selection in 1995 through 2002, the 2002 data was assigned.
6 I also interacted the prestige of the court with the black population because diversity in courts may be more valued within homogeneous states with prestigious hours; the interaction was not statistically significant.
7 States classified as being Southern were Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia based on Census classifications.
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Table 1 , which shows that there has been no significant change in the likelihood of a black judge being selected over time; rather, there has been an insignificant decrease in the likelihood of selecting a black justice. Part of this lack of change may be due to the small number of black justice selected to state high courts over the twenty years of this analysis. Of the 637 selections in 50 states over twenty years, only 45 of the justices selected were black,
8
and only 25 states selected at least one black judge to the bench.
9
Turning to our key questions, are black judges more likely to be appointed or elected?
Consistent with other studies on the selection of racial and gendered minorities, I find that black judges are significantly more likely to be appointed than selected. The results in Table 1 demonstrate that there is a significant, positive effect on the likelihood of a black justice being selected when he or she is initially appointed rather than elected.
Next, is the selection of black justices limited to tokenism? The results suggest that this may indeed be the case. The likelihood of a black justice being selected significantly declines when a black justice already sits on a court. This finding is in line with Bratton and Spill’s
(2002) conclusion that the presence of a female on a court decreases the likelihood that another female justice will be selected. Thus, once the perception of diversity is met by the presence of a minority justice, further diversification is unlikely.
For the most part, the control variables tend to behave as expected, with the exception of court prestige. I anticipated that black judges were less likely to be selected to more prestigious courts; however, I find just the opposite; black judges are significantly more likely to be selected the more prestigious a court is. This finding is, however, consistent with Bratton and Spill’s
8 7.1% of justices selected were black.
9 These states selected black supreme court justices during this time period: Alaska, Arizona, California, Colorado,
Connecticut, Florida, Georgia, Illinois, Indiana, Louisiana, Maine, Michigan, Minnesota, Missouri, Mississippi,
North Carolina, New Jersey, New York, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Washington,
West Virginia.
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(2002) findings regarding the selection of women. Furthermore, consistent with other studies on black representation on courts, I find that the greater the proportion of black lawyers in a state, the more likely a black judge will be selected. I also find that state characteristics influence the selection of black judges. Specifically, more liberal states are significantly more likely to select black judges. Finally, Southern states are significantly more likely to have a racially diverse court than non Southern states, as expected.
Conclusions
This study has shown that selection mechanisms matter in creating diversity on courts.
Black judges were found to be significantly more likely to be appointed to state high courts than elected, regardless of the formal selection rules. Additionally, this study importantly also finds that black judges appear to be relegated to token status since once one black judge obtains a seat on the court another is significantly unlikely to be selected. This indicates that, in line with public perceptions, blacks judges are selected to fill a “token” seat, and once that seat is filled, no further diversity is sought.
These findings present three interesting questions for future research. First, are these findings applicable to other racial minority groups such as Latinos and Asians? In other words, are Latinos and Asians also more likely to be appointed than election? Are they similarly relegated to token status? Very little work has been done examining what factors effect the selection of judges from other minority groups; however, similar influences could be at play.
Also, is the token seat status on courts set aside for a minority justice in general or is there a
“seat” for each minority group. In other words, does the presence of a black judge decrease the likelihood that a Latino or Asian is selected to the bench?
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Another important question is whether the effect of existing diversity applies only to the initial stages of diversification and decreases once a level of heterogeneity is achieved. In other words, the selection of a second black judge may be significantly affected by the presence of a single black judge; however, is the selection of a third black judge equally affected? To address this question, the selection to lower courts would have to be examined because, to date, no high court has more than two black judges.
A third important question from these finding is how token status affect the behavior of minority judges. Significant research has been done on legislators and has found that women and minorities behave differently when the serve in small numbers than when they serve in larger numbers. Thus, it would be interesting to examine whether minority judges behave different when they are the single minority than when there are two or more.
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Tables and Charts
Figure 1. Selection of Black State Supreme Court Justices
Per Year, 1980-2000
7
4
3
2
6
5
1
0
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002
Year appointed
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Table 1. Logistic Regression of the Likelihood of Selecting a Black Individual to State Courts of Last Resort a
Independent Variables
Term
Justice Appointed b
Black Justice on the Court
Position Prestige
Parameter Estimate
(Standard Error)
-.008
(.027)
1.118**
(.429)
-1.619***
(.443)
Length of Term
Prestige of Court
Opportunity and Eligibility
Size of Court
Proportion of Lawyers that are Black
.004
(.076)
.005**
(.002)
.027
(.165)
.256**
(.084)
State Characteristics
Percentage of Population that is Black
State Liberalism
Southern State
Constant
Number of Justices Appointed (N)
.003
(.009)
.029*
(.017)
1.997***
(.518)
10.040
(54.093)
633
Dependent Variable: Black Justice Selected a 1980-200 b Includes appointment by governor and judicial nominating committee.
* p < .05, one tailed test
** p < .01
*** p < .001
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