Actors in the Judicial Process
To what extent is the American bench representative of the US population? And do the lived experiences that women and racial or ethnic minorities bring to the bench make a difference? The bench is a political institution in a democratic republic, so there is a broad interest in ensuring that these agents of government are representative of their principal—the citizens. In this section, we present six chapters that examine the nature and/or effect of the representation of the judges sitting on the American bench. Professor Greg Goelzhauser’s chapter explores the connection between state judicial selection systems and the intersectional diversity of their courts. He finds there are systematic patterns—namely, appointive systems are more apt to result in benches with intersectional diversity than are elective systems. Professor Jeanine Kraybill takes up the question of whether women US Supreme Court justices use different principles of legal reasoning (a women’s voice) in their written opinions than do their male counterparts. Using computer-assisted text analysis, she finds some differences between female and male justices in the use of legal reasoning, but not of the nature she expected. In the end, she shows there are patterns of differences in the use of legal principles in the justices’ written opinions and that the female justices do not have a monolithic writing style. Professor Kraybill continues this focus and examines whether male and female judges perceive their treatment as members of the judiciary and their role and place in the legal profession differently. Using the California state judiciary as her potential subject pool, she surveys judges and finds that male and female judges do indeed have different perceptions and experiences, and this is, indeed, related to their gender. Professors Shane Gleason, Scott Comparato, and Christine Bailey explore whether the citation of precedent from one state to another is affected by the gender of the author and thus whether a different voice inhibits (or not) the diffusion of precedent and its influence on policy beyond immediate state borders. Professor Kristen Renberg examines a similar question at the US Courts of Appeals. Also examining the voluntary citation of precedent, Renberg considers judicial attributes beyond gender and court-level characteristics to determine what factors again influence the flow of precedent across the regional appellate courts. Next, Jeknic et al. examine the judicial selections of President Trump through the lens of diversity and inclusion. They find that Trump’s judicial cohort was paler and more testosterone-driven than the cohorts of more recent presidents (Obama, G. W. Bush, and Clinton). In other words, Trump appointed judges as if it was 1980 rather than 2020. Despite the record number of judges placed on the bench, the overall impact was somewhat blunted by the larger number of active and senior-status judges continuing to serve. They discuss the significant implications of this lack of descriptive representation on the legitimacy and support for the courts, as do other authors in this section. Finally, Professor Craig Smith looks at the more toxic side of representation—specifically, those instances when a justice’s association with an interest in or party to a case is so close that the justice’s objectivity and impartiality are brought into question. It is under these circumstances that recusal is considered. Using Justice Tom Clark’s recusal decisions as a case study, Professor Smith seeks to unpack the set of conditions that moved Justice Clark to recuse himself. In his analysis, Professor Smith shows the recusal decision to be a highly personal one that is affected by the stakes of the case and the justice’s preferences. When the stakes are high and justices’ preferences are engaged, they will rarely recuse themselves. Once again, then, we see the importance of judicial attitudes coming to the fore.