Judges are tasked with applying the law to the facts, and are often called upon to determine which barriers have risen too high and what behaviors are considered reasonable. The lens through which a judge views the facts of criminal and civil cases, as well as appeals, affects the outcome of those cases. However, the law does not happen in a vacuum. Much like a jury, judges do not leave the sum of their experiences at the door when called to make a decision, and how those experiences influence judicial decisions has a direct impact on the people at the mercy of the courts.
The reality is that all judges have a variety of intersecting privileges, including economic, educational, citizenship, and fluency in English. Additionally, the face of the judiciary has traditionally reflected lawyering, a profession that has been overwhelmingly white and male. According to a search by the Federal Judicial Center, which collects the data for federal judges, there are 798 active Article III judges who are nominated by the president and confirmed by the Senate. 587 of them are white, 530 of them are men, and 186 of them are white women. The recent Article III judicial appointments since President Trump has taken office saw the escalation of an existing trend. There were 108 judicial vacancies when President Trump took office, many of which were left empty by the Senate despite the efforts of the Obama administration. Trump has since appointed over 190 judges, the vast majority of whom are conservative, and two-thirds of those appointments were white men.
We are in the process of completing the 2020 census, but the most recent Census Bureau estimation shows a much different demographic picture than our federal courts. Similarly, there is an inversely telling racial disparity in incarceration rates within the federal prison population. Black inmates make up 37.5% of the incarcerated population despite making up less than 15% of the nation’s population, calling into question the widening gap between those who sit on the bench and those standing in the well awaiting judgment. Even within the child welfare system, where poor families have an increased risk of involvement and the judges are more affluent, the gap between the demographic makeup of the judges and the plaintiffs and defendants pushes against what it means to be objective.
A single judicial opinion can change millions of lives because of the lens through which they are reviewing the facts or decisions of a lower court. While the job of judges has traditionally been thought of as one requiring both objectivity and lifetime appointments to be protected from the influence of other branches, judges are routinely called upon to make decisions that are at odds with objectivity. Even if they aren’t making the factual determinations in a case, they are in charge of determining what jury instructions are read to a jury. Judges are sometimes required to determine what a “reasonable person” would do in a variety of contexts; a concept that considers what a hypothetical average person in society would do as a litmus test for appropriate behavior. They are also asked to determine not only what someone knew, but what they “should have known,” not to mention whether someone’s action belies consciousness of their guilt. Their determinations affect the degree to which people are able to exercise their constitutional rights.
In late 2017, judges sitting on the Louisiana Supreme Court declined to hear an appeal involving the right to counsel during interrogation. The appellant, Warren Demesme, was interrogated by police in Harvey, Louisiana, and said, “just give me a lawyer, dog.” In a concurring opinion, one judge, Justice Scott Crichton, wrote: “In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants the termination of the interview.” In short, that court thought it was equally reasonable for the police to interpret the request as someone asking for a lawyer that is a dog, as it was to believe the question was simply a colloquialism.
Changing the face of the judiciary to better represent the people that it both judges and protects is a net good. We should start with reframing our understanding of what judges do and follow with a deep dive on who is doing the job. One of the more telling aspects of how we understand our judiciary is what data we do not collect. When those with the power can start seeing the world through the eyes of the rest of us, we can create a more just system and move those who interpret the law to better reflect the community the law surrounds.