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INTRODUCTION: A JUDICIARY IN TRANSITION I would hope that a wise Latina woman with the richness of her ex­ periences would more often than not reach a better conclusion than a white male who hasn’t lived that life. —Justice Sonia Sotomayor An argument frequently advanced by advocates for an inclusive judiciary is that the representation of women and minorities ensures that the federal courts fairly reflect the experiences of a diverse population . According to this view, a diverse judiciary allows historically excluded groups an opportunity to advance perspectives, issues, and interests that had been previously ignored (Kenney 2013). Underlying this normative argument is a series of empirical questions: Do women judges bring a “different voice” to the bench? Are minority judges responsive to the concerns of minority groups? Does the presence of minorities and women on a collegial court affect the policies advanced by that court? How have white male judges responded to increasing diversity within their ranks? Does the number of women and minorities seated on the bench affect judicial behavior? This book addresses these questions, and, in doing so, informs current debates about affirmative efforts to identify qualified women and minorities to fill vacant judicial positions. 2 DIVERSITY MATTERS The U.S. Courts of Appeals: A Judiciary in Transition Within the federal judicial system, the federal courts of appeals are the intermediate appellate courts that serve, for most litigants, as their court of last resort because of the Supreme Court’s comparatively smaller caseload (Hettinger, Lindquist, and Martinek 2006, 11–14). Tens of thousands of appeals come through the courts of appeals each year and are typically decided by three-judge panels from each circuit. Each circuit varies in geographic size and in the number of judicial seats assigned to it; for instance, the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) has only six authorized seats, while the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands) currently has twenty-nine authorized seats. Figure 1 shows the geographic boundaries of each circuit in the federal courts of appeals. Over the past thirty years, there has been a great deal of change in the composition of the federal courts of appeals, as evidenced by the increasing numbers of white women, minority men, and minority women (Hurwitz and Lanier 2008). The bar graph in figSource : Administrative Office of the U.S. Courts, /CircuitMap.pdf. FIGURE 1 Circuit boundaries INTRODUCTION 3 ure 2 shows several snapshots of the composition of the courts of appeals, marking the end of the Carter administration, the Reagan administration, the George H. W. Bush administration, the Clinton administration, and the George W. Bush administration. Each one of these periods indicates a growth in the number of women, minorities , or both. Of these appointment cohorts, President Reagan appointed the highest percentage of white males to the appellate bench (92.3 percent), while President Clinton appointed the lowest (49.2 percent)—though Clinton’s record on diversity has since been overtaken by President Obama.1 Scholars generally point to the Carter administration as a turning point for diversity on the lower federal bench (Goldman 1997; Slotnick 1982-83). When President Carter assumed office, the normative argument for a diverse judiciary was particularly compelling given the near absence of women and minorities on the federal bench. At the start of the Carter administration, only four African American judges had ever served on the federal courts of appeals: William Hastie, a Truman appointee; Thurgood Marshall, a Kennedy appointee ; and Wade McCree and Spottswood Robinson, Johnson appointees . Likewise, only two women, Florence Allen (Sixth Circuit) 0 10 20 30 40 Number of active nontraditional judges serving 1980 1988 1992 2000 2008 White women Minority men Minority women Note: Numbers represent all active service appeals court judges who served at any point during the year indicated. Minority men include African Americans, Latinos, and Asian Americans. Minority women are African Americans and Latinas. FIGURE 2 Snapshots of diversity on the federal courts of appeals 4 DIVERSITY MATTERS and Shirley Hufstedler (Ninth Circuit), had served as circuit judges. Through policy guidance and executive order, Carter directed circuit court nominating commissions to make a special effort to identify qualified women and minorities (Goldman 1997). However, the first half of the Carter administration did not yield many minority and female appointees (Goldman 1997). When tensions surfaced between officials at the Justice Department and the White House counsel...


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