Report: Judiciary Decision Making Swayed by Race and Ethnicity

A recent examination of federal lawsuit decisions found that plaintiffs charging workplace racial harassment prevailed 45.8 percent of the time when the presiding judge was Black. The percentages decrease by more than half when those cases were heard by a White judge.

However, there were only 24 Black judges, compared with 350 White judges, to hear complaints from about 300 Black plaintiffs.

“African-American judges’ (likely) experiences (with discrimination) give them valuable knowledge, perspectives and understandings of minority plaintiffs that many Whites lack,” the study said. Black judges are better able to identify “subtle and nuanced forms of discrimination,” according to “The Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases,” which observers say bolsters arguments for a more diverse judiciary. 

“All judges of all races should follow the legal principles and look at just the facts. What our research found is judges are doing that but they come out with different decision-making patterns based on race in these cases. This just didn’t happen by chance,” said Pat K. Chew, a law professor at the University of Pittsburgh who conducted the analysis with Robert E. Kelley, a professor at Carnegie Mellon University’s Tepper School of Business.

Chew and Kelley randomly selected and analyzed more than 400 workplace harassment cases reported from six federal circuits from 1981 to 2003. The study also examined judges’ political affiliation, plaintiffs’ success rate in winning a case and types of cases, such as those involving racial slurs.

Dana Horst, director of development and marketing for Just The Beginning Foundation, which works to increase diversity in the judiciary, said this study is confirmation that the under-representation of minorities in the judiciary influences the application of the law.

“The interpretation of occasionally murky legal principles … creates an argument for a diverse and representative judiciary. Although, as the paper notes, judges of all races are equally attentive to the merits of the case, it is the inclusion of unclear principles in many of these cases that call for personal interpretations informed by specific experience,” Horst said.

The study places renewed significance on the diversity of President Barack Obama’s judicial picks as he tries to fill 103 federal bench vacancies.

Although the number of minority judges remains low, Obama has appointed 24 federal judges of color during his 15 months in office. As of March 10, eight of Obama’s choices were confirmed. Among those awaiting Senate approval is Goodwin Liu, an associate dean and professor at University of California, Berkeley School of Law, who was nominated for the United States Court of Appeals for the Ninth Circuit. In comparison, Ronald Reagan appointed 22 judges of color during his two-term tenure. Bill Clinton appointed 92 and George W. Bush 49.

The study provides a detailed analysis of the severe shortage of Blacks, Hispanics and Asians and especially Native Americans on federal and state benches. That’s why the National Congress of American Indians in Washington, D.C., met with Obama administration officials in December and presented a few names of judicial candidates. 

“There were two Native Americans (Frank Howell Seay and Billy Michael Burrage) appointed to the federal district courts in the entire history of the judiciary, and both in Oklahoma. Two is not a large number,” said staff attorney Katy R. Jackman. “A report like this is definitely needed to show diversity is needed in the federal judiciary. We are hopeful in the coming months to see some Native Americans who are nominated (by Obama).”

Chew said the lack of understanding among minority lawyers about the political process in becoming a judge may contribute to the limited number of minorities reaching the federal bench.

However, Kellye Y. Testy, dean of the University of Washington Law School, said there is a pipeline problem that begins with inadequate numbers of minorities getting into law school. A recent Columbia University study found that 61 percent of Black and 46 percent of Mexican-American students were denied admission to law school from 2003 to 2008.

“We need to make a pipeline for legal education for minorities. Justice will not be served if we do not have diversity in the legal profession,” Testy said.

Noting the significance of their findings, the authors say the data makes the case for more diversity on the bench.

“As a legal community and as a diverse society, we should not be blind to the color of judges,” the report stated.