Chapter 1: Actors in the Judicial Process
Section 2: Judges
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? As a political institution in a democratic republic, there is broad interest in ensuring that these agents of government are representative of their principal – the citizens. In this section we present five chapters that examine the nature and/or effect of the representation of the judges sitting on the American bench. Professor Greg Goelzhauser’s research paper 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 that some differences in the use of legal reasoning between female and male justices but not of the nature she expected. In the end, she shows that 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. Professors Shane Gleason, Scott Comparato and Christine Bailey explore whether the citation of precedent from one state to another is affected by 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 U.S. 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. 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 the justice’s preferences are engaged, justices will rarely recuse themselves. Once again, then, we see the importance of judicial attitudes coming to the fore.