DIVERSIFYING THE FEDERAL BENCH: PRESIDENTIAL PATTERNS*

Justice System Journal, 2005 by Solberg, Rorie L Spill, Bratton, Kathleen A

In this study of all federal district court appointments from 1977 through 2004, we examine a variety of possible influences on the selection of women and minorities to the federal bench. We find that women and minorities are more likely to be appointed to relatively large courts and to courts that have relatively few female or minority judges. The pool of eligible candidates also has a substantial and significant influence on the likelihood that a minority judge will be appointed. We find that political factors such as state ideology or the partisan composition of the U.S Senate delegation from the state have little influence. We conclude that Residents take race and gender into consideration when making judicial appointments and are particularly interested in diversifying relatively homogeneous courts; moreover, large courts may offer an opportunity to diversify with relatively few trade-offs in representation of other groups or interests.

The role of diversity in the federal judicial selection process has been debated durng each administration since that of President Carter. In his campaign, he pledged not only to recruit judicial candidates based on merit but also to diversify what was at the time an overwhelmingly white and male federal bench (Goldman, 1997). During the administration of George H. W. Bush, Thurgood Marshall acknowledged that race would almost certainly be a factor in the choice of his successor (Wines, 1991). During the 1992 presidential debates, Bill Clinton proclaimed his commitment to diversity and said that his cabinet and other appointments would "look like America." And certainly we have seen lively speculation about George W. Bush's potential Supreme Court appointments, focusing on the possible nominations of the first Latino justice in the person of Alberto Gonzales or the first black female justice in the person of Janice Brown.1

The notion that diversity is politically and substantively important is not new; historically, seats had been reserved for particular regions or religions (Baum, 1998; Scigliano, 1971), revealing that judicial appointments serve the political and policy goals of presidents. Yet despite the attention paid to the importance of racial, ethnic, and gender diversity, the numbers of women and minority judges continue to be much lower than the number of white male judges. To understand more fully why these numbers remain low, we need a systematic assessment of the role diversity plays in judicial selection. We need to learn, for example, whether the lower numbers of women or minorities on the bench reflect the relatively small pools of eligible candidates and whether there are particular institutional and political factors that make it more likely that women and minorities will be nominated to the bench.

The most thorough research on how gender and race matter in the selection process has been carried out at the state supreme court level. That research reveals that existing gender diversity significantly affects the filling of vacancies on state supreme courts (Bratton and Spill, 2002) and that the effect is exacerbated by merit selection systems, although Hurwitz and Lanier (2003) found that the differences in selection systems are abating as time progresses. Less is known, however, about the role of gender and race in federal judicial selection, and there is very little empirical research examining the selection of Latino judges. To date, most of the research regarding gender and racial diversity on the federal bench focuses on judges' decision making once on the bench and has produced mixed findings (e.g., Davis et al., 1993; Gottschall, 1983; Walker and Barrow, 1985).

We add to this literature by focusing on the effect of existing diversity on the selection of women and minority judges rather than on their behavior once on the bench. While it is critical to understand their potential differences in judicial behavior, it is also important to comprehend the factors that influence the likelihood that women and minorities attain these positions of power. Included in this study are political and institutional factors, many of which are not unique to the federal judiciary. This allows us to anticipate that our study will provide findings regarding the role of diversity in judicial selection under any type of appointment system. For example, the federal selection system is similar to both gubernatorial selection and merit selection systems in the key respect that the selectors are well aware of the current composition of the bench. Inclusion of these factors should also allow application of our findings to political appointments of women and minorities more generally.

In the present article, a study of all federal district court appointments from 1977 through 2004, we focus on the factors that influence the selection of women and minorities to the district courts. We include African-Americans and Latinos in this study, but exclude Asian-Americans and Native Americans because there are too few for any reliable analyses or conclusions. We examine the effect of the pool of available candidates on the selection of women and minority judges, paying particular attention to differences in the size of the selection pool across groups. That the pool of available female candidates has generally been much larger than the pools of available African-American or Latino candidates has made it more likely that gender diversity has taken place at a more rapid pace than racial or ethnic diversity. Diversifying on the basis of gender is also easier to accomplish because the pool of female candidates is likely to be more ideologically diverse than the pool of AfricanAmerican or Latino candidates.2