Diversity Matters

Judicial Policy Making in the U.S. Courts of Appeals

Susan B. Haire, Laura P. Moyer

• Publisher: University of Virginia Press
• Year: 2015
• Print ISBN: 9780813937182
• eBook ISBN: 9780813937199
• Topic: Política y relaciones internacionales
• Subtopic: Historia y teoría política

Until President Jimmy Carter launched an effort to diversify the lower federal courts, the U.S. courts of appeals had been composed almost entirely of white males. But by 2008, over a quarter of sitting judges were women and 15 percent were African American or Hispanic. Underlying the argument made by administration officials for a diverse federal judiciary has been the expectation that the presence of women and minorities will ensure that the policy of the courts will reflect the experiences of a diverse population. Yet until now, scholarly studies have offered only limited support for the expectation that judges' race, ethnicity, or gender impacts their decision making on the bench. In Diversity Matters, Susan B. Haire and Laura P. Moyer employ innovative new methods of analysis to offer a fresh examination of the effects of diversity on the many facets of decision making in the federal appellate courts.

Drawing on oral histories and data on appellate decisions through 2008, the authors' analyses demonstrate that diversity on the bench affects not only individual judges' choices but also the overall character and quality of judicial deliberation and decisions. Looking forward, the authors anticipate the ways in which these process effects will become more pronounced as a result of the highly diverse Obama appointment cohort.

1

RACE, ETHNICITY, AND JUDGING

These determinations require a judge to draw upon something that is not found in the case reports that line the walls of our chambers. Rather judges draw upon the breadth and depth of their own life experience, upon the knowledge and understanding of people, and of human nature. And inevitably, one’s ethnic and racial background contributes to those life experiences.

—Judge Edward M. Chen

In the introduction, we highlighted the varying efforts of Democratic and Republican administration officials to identify qualified minority nominees to fill vacancies on the federal appellate bench. Although presidents garner electoral support among African Americans and Latinos when selecting judges of color (see Scherer 2005b), officials also advance policy arguments for increasing the presence of minorities in the judiciary. One rationale underlying the push for descriptive representation in the judiciary is a substantive one: minority judges bring important and traditionally excluded perspectives to the bench (Ifill 2000). As noted by Judge A. Leon Higginbotham, “having minorities on the court . . . proffers an enrichment of experiences that one can use to examine issues” (Washington 1994, 12).

Underlying Judge Higginbotham’s observation is the premise that socializing experiences associated with race and ethnicity affect the formation of opinions, and those opinions and experiences continue to be reinforced by a judge’s identification with a racial or ethnic group. In this chapter, we draw on existing research to develop this theoretical perspective and empirically evaluate the claim that minority judges’ decisions are distinct from those made by their white colleagues. In doing so, we recognize that this effort is not new; however, the increased number of racial minorities appointed to the bench over the past decade provides a new opportunity for empirical researchers. Many previous studies on the role of race in federal appeals court decision making were centered on Democratic appointees, particularly those appointed by Carter (Gottschall 1983). During the 1980s, only three African Americans were appointed by Presidents Reagan and George H. W. Bush. During the Clinton administration, the number of minorities on the appeals court bench increased substantially, with nine African American and seven Latino appointees. George W. Bush was more successful than his Republican predecessors in identifying minority candidates for the circuit bench; he appointed six African Americans and three Latinos to the federal appeals courts.

Given this increased diversity in appeals court appointments under both Democratic and Republican administrations, we examine decision making from 1982 to 2008. As a result, we are well positioned to revisit the contention raised by supporters of diversity in judicial selection that minority appointees bring a “representative voice” to the bench.

Racial Identity and Politics

Understanding the role of race and ethnicity in judicial decision making necessarily begins with an inquiry centered on racial identity. Situated at the intersection of sociology and psychology, social identity theory has directed scholars to examine the relevance of group closeness, including those associated with racial and ethnic groups. This theory suggests that an individual’s identity can be conceptualized in terms of group identification—that is, the degree to which the individual is aware of belonging to a group and having a psychological attachment based on his or her perception of shared beliefs, feelings, interests, and ideas with others in the group (Matthews and Prothro 1966; McClain et al. 2009).

Consistent with this approach, scholarship on black racial identity and its effects on political behavior identifies multiple physical, psychological, sociopolitical, and cultural dimensions with a particular emphasis on the role of in-group “closeness” (McClain et al. 2009). Distinct from the concept of racial identification, race consciousness suggests that beliefs about the standing of one’s racial group may be tied to the view that collective action provides an avenue through which the group can advance its interests. From this perspective, race consciousness will be held by those in minority groups who feel “close” to their own race as a result of being oppressed (Miller et al. 1981). An individual’s perception of linked fate is an important cognitive component of racial group consciousness (McClain et al. 2009). In the context of black political behavior, scholars have found that the history of slavery in the United States and African Americans’ shared struggle with discrimination in the twentieth century have promoted a sense of shared destiny (McClain et al. 2009). In a 1984 survey of African Americans, when asked if they believe what happens generally to black people in this country will have something to do with what happens in their own lives, 64 percent responded affirmatively (Dawson 1994, 79). Research also finds that these perceptions of linked fate are strongly related to support for racial policies (Dawson 1994). When little information is available to make political decisions, African Americans may be expected to rely on the status of their racial group as a cognitive cue (Miller et al. 1981). As one scholar suggests, “as long as African American life chances are powerfully shaped by race, it is efficient for individual African Americans to use the perceptions of the interests of African Americans as a group as a proxy for their own interests” (Dawson 1994, 61).

Research on the relationship between race and public opinion provides support for this perspective. When evaluating policy proposals where race is salient (such as affirmative action), African Americans are dramatically more supportive than whites of proposals to expand the role of government in addressing problems of racial inequality (Kinder and Winter 2001). The racial divide in public opinion is not limited to explicitly race-based policy issues. When evaluating economic policy matters, scholars have found a similarly large gap in respondents’ views about inequality, suggesting that blacks view the economic system as biased whereas whites believe the system is fair (Kinder and Winter 2001; Sigelman and Welch 1991). A similar cleavage has been documented when comparing respondents’ views of the criminal justice system. In one study, scholars scrutinized the causal mechanism underlying the racial divide and found that blacks’ unfavorable views of law enforcement are related to their beliefs that the criminal justice system is unfair, whereas white respondents tended to see the system as fair and tended to overlook differences between black and white civilians in police encounters (Hurwitz and Peffley 2005). In explaining these connections, the study’s authors concluded: “African Americans, far more often than whites, are the subject of unfair and discriminatory treatment from law enforcement officers. Because so much of one’s general sense of whether the criminal justice system is fair is experientially determined, these encounters (whether experienced personally or vicariously) contribute heavily in creating in much of the African American community a profound understanding that the justice system is inherently biased against them” (Hurwitz and Peffley 2005, 781).

Most studies that have examined the link between racial identity and political behavior have focused on African Americans. While many scholars emphasize the shared interests of minorities as a rationale for finding similarities in values and behavior, it is less clear whether the relationship between race consciousness and behavior operates similarly for other racial groups, like Latinos, who lack a shared past that includes enslavement and the often-contentious race relations of the civil rights era (McClain et al. 2009). Studies that have examined whether Latinos have a sense of linked fate report mixed findings, in part because substantial diversity exists among Latinos in terms of geographical origins (Lopez and Espiritu 1990; Leal 2007). Latinos in the United States share a common language and religion, but otherwise, they are varied in terms of their ethnic origins, with Mexican Americans representing the largest demographic group, followed by Puerto Ricans, Cubans, and Salvadorans. In a recent survey, when asked whether they identify with an ethnic group, survey respondents reported their country of origin rather than using the “Latino” or “Hispanic” label.¹ Indeed, many Latinos in the United States view themselves as white (Darity, Dietrich, and Hamilton 2005), and a large proportion report that they have never experienced discrimination in the same manner as African Americans (McClain and Stewart 2006).

Given pan-ethnic variation, efforts to promote a Latino identity in the United States have placed an emphasis on common values shared by various groups that center on populist democracy, immigration, and language (Leal 2007). As a group, Latinos are more likely to trust and support an active role for government, including higher levels of spending, when compared to the views of white Americans (Leal 2007). On specific issues related to morality and religion (for example, divorce, suicide, abortion on demand), Latinos tend to be more conservative than whites (Leal 2007). Similar to the findings on black-white differences reported above, Latino-white cleavages emerged on policy issues where Latinos may perceive a “shared fate”: immigration and bilingual education (Leal 2007). With respect to criminal justice, less than half of Latinos surveyed in 2007 reported that they have confidence that police officers will not use excessive force, compared with 73 percent of whites and 38 percent of blacks. Overall, other studies also report that Latinos tend to fall in the middle between whites and African Americans; for instance, they are more approving of law enforcement than African Americans, but less supportive than whites (Cheurprakobkit 2000; Weitzer 2002).

Collectively, research on racial and ethnic identities suggests that closeness to one’s group varies, with black racial identities being strong and relatively stable, particularly when compared to Latinos (Huddy 2001; McClain and Stewart 2006). Although fragmentation among Latinos is fueled by variation in country of origin, the relative absence of national leaders and the low rate of Latino political participation are also contributing factors (Kaufmann 2003). However, even among African Americans, the influence of racial identity on political behavior varies with the salience of racial and ethnic categories (Huddy 2001). To the extent that Latinos and African Americans perceive a shared outsider status, then one would expect to see opinions and behavior consistent with this notion of commonality between these two groups. In the section below, we consider the backgrounds and experiences of African American and Latino judges on the courts of appeals to further evaluate the argument that these experiences are relevant in understanding a judge’s racial and ethnic identity.

Racial Identity and Judging on the U.S. Courts of Appeals

AFRICAN AMERICANS: A SHARED STRUGGLE
WITH DISCRIMINATION

With his appointment to the Third Circuit in 1950, William Hastie became the first African American to be named to the federal courts of appeals. It would be over a decade before another African American, Thurgood Marshall, would be appointed to the federal appellate bench in 1961. Five years later, Spottswood Robinson joined the D.C. Circuit. Although separated by a few years in age, these three judges had much in common, with overlapping paths to the bench that focused on legal efforts to desegregate. After graduating from Harvard Law School, Hastie joined in private practice his friend Charles Houston—who later became known as the man who “killed Jim Crow laws.”² Several years later, Hastie would again work with Houston at Howard University where, as dean of the law school, he became acquainted with then-student Thurgood Marshall. Deeply influenced by Houston, Marshall committed himself to developing the litigation strategy for dismantling segregation. He worked for many years on behalf of the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund, ultimately arguing Brown v. Board of Education before the U.S. Supreme Court, on which he would later serve. Robinson, like Marshall, graduated from Howard University Law School and, like Hastie, served as dean. He also followed the career path taken by Thurgood Marshall and worked for the NAACP for twelve years. These three judges shared experiences with segregation in their personal and professional lives that profoundly shaped their perspectives on the legal system (Hastie 1973; Kluger 1976; Brennan 1991; Wermiel 2003).

Firsthand experience with race discrimination also shaped the career choices made by Carter appointee A. Leon Higginbotham, who first enrolled at Purdue University in 1944 seeking a degree in engineering. Placed in unheated off-campus housing, Higginbotham requested from the university president that he and other black students be permitted to live in heated on-campus housing. After the president responded that “the law doesn’t require us to let colored students in the dorm, we will never do it, and you either accept things as they are or leave the university immediately,” Higginbotham transferred and decided to pursue a legal career. He graduated from Yale Law School and served in the public and private sector prior to being appointed to the federal district court bench in 1964. Elevated to the Third Circuit by President Carter in 1977, Higginbotham served for sixteen years before stepping down in 1993. He did not leave the bench to retire; instead, he left federal judicial service so that he could teach and provide counsel on pressing civil rights issues, including those associated with redistricting in the United States and efforts in South Africa to dismantle apartheid (Washington 1994).

Although the first two black judges on the appeals court bench were named to seats in northeastern circuits, the Sixth Circuit would be the home court for five African Americans appointed through 2008. The first black judge appointed to this circuit, Wade McCree, was selected by President Johnson in 1966. Although McCree, like William Hastie, graduated from Harvard Law School, his career path was geographically centered in the Midwest. He had been the first African American to serve as a judge in the state trial court in Wayne County, Michigan, and became only the second African American judge to sit as a federal district court judge. Like Thurgood Marshall, McCree served as solicitor general (although the order of experience was reversed): McCree resigned from the Sixth Circuit to take on the Department of Justice post during the Carter administration.³

In the year following Wade McCree’s appointment to the Sixth Circuit, President Johnson named another African American, Damon Keith, to the same federal district court position that had been held by McCree. A decade later, Keith was elevated to the Sixth Circuit after McCree stepped down. Two years following Keith’s elevation, President Carter appointed Nathaniel Jones to join him on the bench, marking the first time that two African American judges would be seated on the same circuit. Influenced by Thurgood Marshall and Charles Houston, Jones had served as general counsel for the NAACP and directed the organization’s litigation strategy against northern school segregation during the 1970s. Like Carter, President Clinton appointed two African American judges to the Sixth Circuit: R. Guy Cole and Eric Lee Clay. Both graduates of Yale Law School, these two judges shared personal experiences similar to many African Americans born in the segregated South in the years following World War II.

African Americans would not be named to the federal appellate bench in the West or the South until the Carter administration. Carter named two African American judges, both Alabama natives and World War II veterans, to seats on the Ninth Circuit: Jerome Farris and Cecil Poole. Similar to other African American judges appointed by Carter, Farris had a mix of career experiences in the private and public sector, sitting as a state court of appeals judge at the time of the appointment. Poole had been appointed by President Ford to the federal district court in 1976, serving as a federal trial judge for over a decade before being elevated to the Ninth Circuit.

As the first African American to be elected in the South to a statewide office, Joseph Hatchett was a logical choice for Carter when deciding who would fill a vacancy on the Fifth Circuit (soon to be split from the Eleventh Circuit). Like many other African American judges, Hatchett had earned his law degree from Howard University. Although he was just a teenager during the civil rights movement, Hatchett recalled how he was deeply affected by the murder of a state civil rights leader.⁴ On the Eleventh Circuit, he was eventually succeeded by another African American, Charles Wilson, who was appointed by President Clinton. Clinton also named an African American, Carl Stewart, to the Fifth ...

Table of contents

• Cover Page
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction: A Judiciary in Transition
• 1 Race, Ethnicity, and Judging
• 2 Gender and Judging
• 3 Intersectionality and Judging
• 4 Diversity on the Panel
• 5 Diversity within the Circuits
• Conclusion
• Appendix
• Notes
• Bibliography
• Index