The logic of pursuing diversity is being taken to absurd levels: so why not sports, too?
It is often argued that the federal judiciary should be representative of the nation, with representativeness defined by race, ethnicity, and gender. President Donald Trump’s nominees were criticized for being too male and too white. By contrast, President Joe Biden has promised more diverse nominees. And some federal judges themselves have argued for this kind of representative judiciary.
But this call raises uncomfortable questions. First, legal decision-making is not supposed to reflect a process by which case outcomes are apportioned representatively or even where the characteristics of the people before the judge should affect the outcome. The icon of justice is blind. Second, even if representativeness were desirable, a focus on race, ethnicity, and gender distorts the diversity of America: Other factors, such as religion and family background, are at least as relevant to what makes an individual representative. Third, appointing with reference to representativeness devalues considerations of quality.
Law and Representativeness
The more formal one’s view of law, the less representativeness should matter to the legitimacy of the judiciary. A formalist believes that the material of written law—the text as understood in the context of rules of interpretation and sometimes supplemented by precedent also applied according to formal rules—generates decisions. Thus, judges have little, if any, policy discretion in reaching decisions. To be sure, there may be easier and harder cases, but there is still no room for personal policy views in deciding them. If legal correctness of a more formal kind is the goal of judging, the focus in judicial appointments should be on the candidates’ legal acumen and legal fidelity, including a fierce determination to put aside irrelevant considerations like race, ethnicity, and gender.
If, on the other hand, judges were policymakers, and race, ethnicity, or gender were proxies for policy views, representativeness, including these factors, might be useful in making sure that the policy reflected a variety of interests. In setting policy, the judiciary is then acting more like a legislature. It follows that representativeness might have more of a role in state courts than federal courts, because state courts have common law responsibilities, such as shaping the law of contracts and torts. At least in the modern view of the common law, these judges do make policy. But federal courts have almost no common law responsibilities, being charged with interpreting constitutional and statutory text.
It also follows that Republicans have a principled reason to reject representativeness as an ideal because they have embraced the formal methods of constitutional and statutory interpretation—originalism and textualism. Democrats, however, oppose these methods. They either believe that they are not possible because written law has large gaps, or that they are not desirable because a formally oriented jurisprudence makes it too hard to change the status quo. One might conclude, therefore, that Democrats have a principled reason to embrace representativeness.
Progressivism and Diversity
But there is a limit to such principled advocacy of representativeness defined in terms of race, ethnicity, and gender. First, as discussed below, race, ethnicity, and gender are only a few of the factors that reflect a diverse polity, and progressives are generally unconcerned with any other categories. Second, many if not most progressives count as “diverse” only candidates with progressive views. Democrats opposed many of the female and minority lawyers nominated by Trump just as much as the white males that he nominated. For many progressives, the definition of representativeness is simply instrumental to advancing their political positions.
The connection between politics and representativeness explains the reason that President Biden has announced that he will first nominate a black woman to the Supreme Court. On a straightforward representativeness ideal, this decision is odd. African Americans comprise 13 percent of the country and one justice out of nine is African American—a close approximation to the proportion of the population. In contrast, Asian Americans have no representation on the Court and never have.
But Justice Clarence Thomas is not a progressive. He is a formalist and (to use political science terms) the most conservative justice on the Court. He is not infrequently denounced by the left for his apostasy from what is understood to be the view of most African Americans.
But that complaint underscores yet another problem with representativeness as a concept. Are judges supposed to reflect the median views of their identity group? If so, they must conform to a stereotype. And the requirement of conformity implicit in this ideal of representativeness damages our society, where people of any race, gender, and ethnicity must be free to think for themselves. It also hardens existing fault lines of society by connecting race, ethnicity, and gender to political and ideological differences. Confirmation of this damage came just this week. Amazon has removed a documentary about Justice Thomas from its video collection. It was Black History Month and apparently the only African American justice on the Court was not Black enough to participate.
Who is Representative?
Thinking more broadly, if representativeness is related to policy views, then race, ethnicity, and gender are not the only key considerations. For instance, getting married and having children substantially changes people’s worldviews, including their political views. That fact gave President Trump, a master of political jiu-jitsu, the opportunity to turn representativeness to his advantage when, at her installation as a justice, he touted Amy Coney Barrett as the first woman at the Court who had children at home. Elena Kagan and Sonia Sotomayor, in contrast, have never had children, unlike the great majority of women. Does that make them unrepresentative for those who, unlike me, think representativeness should shape judicial appointments?
Religion is also a great shaper of worldviews. On this point, the current Court is very unrepresentative with five practicing Catholics, one non-practicing, one Episcopalian, and two Jews. (Before Justice Ruth Bader Ginsburg’s death there were three). Catholics and Jews thus are heavily overrepresented. But just as noticeable is the absence of evangelical Protestants who constitute a quarter of the American population. Should appointments take account of judges’ religion?
Social class also affects a person’s views. It is true that most successful lawyers of the kind likely to be appointed to federal courts are at least middle class, but there is still a wide range of wealth and income within that group. Moreover, a person’s perspective is influenced by his or her upbringing. Someone who has risen from poverty is likely to be shaped in part by that experience. If one were really concerned about representativeness, screening lawyers for their social background, regardless of race and ethnicity, would be important, particularly because it has been shown that federal courts often follow elite rather than popular views.
But the larger point is that it is impossible to construct a representative Supreme Court or even a representative circuit court on any fair definition of the representativeness that might matter to policy. The numbers are simply too small. Indeed, focusing on one dimension of representativeness may make a court less representative on a different dimension. Moreover, it is just not the case that the pool of lawyers from which judges are drawn are representative of the population. Like most jobs, the enterprise of law attracts particular groups more than it does others. Jews and people of Irish descent, for instance, continue to be overrepresented, as are the middle and upper-middle classes.
Representativeness and Quality
If representativeness is an idea impossible to achieve in practice and unattractive in theory, it is at least heartening that the left’s obsession with a narrow view of representativeness will almost certainly undermine their goal of moving the judiciary leftward. Selecting on the axis of identity will make it less likely that the best and most articulate champions of progressive jurisprudence will get on the bench.
It is not, of course, that there are no such effective champions among people of all races, ethnicities, and genders. But the process of becoming a federal judge requires running a gauntlet that discourages many even from trying. Only lawyers of a certain experience are eligible. Home-state senators of the President’s own party have influence on nominees for both the district and appellate courts and senators of the other party have influence on the district courts. The process has become so polarized that even writings during college can be deemed disqualifying. Adding yet another screen of representativeness makes it even harder to get the most outstanding nominees. The Trump administration’s nominees to the appellate bench encompassed a very high percentage of Supreme Court clerks. If the goal is to get that level of professional distinction, a singular focus on quality is necessary.
And quality pays dividends in influence. While judges within a circuit hear an equal number of cases, that does not guarantee equal influence. Much of their shaping of the law comes through their opinions—their shifting of precedent and parsing of text. Some opinions are more persuasive than others and thus are cited more, enjoying an outsized effect on fashioning the law for the future.
We have some evidence that the influence may not currently be distributed randomly along the lines of some of the representative factors. One law review article measured the influence of federal appellate judges by a variety of considerations, such as the number of written opinions and citations per opinion by other appellate judges. The judges in the top ten on various measures were uniformly white. Some of the categories did include women in roughly their proportion on the judiciary. Others were all male. But there is no indication that influence will necessarily map onto the factors that make for representativeness at any given time. The best predictor of influence at that time seemed to be academic prominence before taking the bench, with Richard Posner and Frank Easterbrook leading the tournament of judges by a substantial measure. Having met both of these distinguished jurists, I would claim that they are representative only of their own towering intellects.
Sadly, however, the focus on the racial, ethnic, and gender identity of judges will not go away. It may well be joined by other identities that are no more relevant to formal judging and no more predictive of a diverse policy outlook than many that are ignored. It was once a commonplace that our society was devoted to the rule of law rather than the rule of men. But a focus on the representativeness of judges will entrench a rule of identity.