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1 RACE, ETHNICITY, AND JUDGING These determinations require a judge to draw upon something that is not found in the case reports that line the walls of our chambers. Rather judges draw upon the breadth and depth of their own life experience, upon the knowledge and understanding of people, and of human nature. And inevitably, one’s ethnic and racial background contributes to those life experiences. —Judge Edward M. Chen In the introduction, we highlighted the varying efforts of Democratic and Republican administration officials to identify qualified minority nominees to fill vacancies on the federal appellate bench. Although presidents garner electoral support among African Americans and Latinos when selecting judges of color (see Scherer 2005b), officials also advance policy arguments for increasing the presence of minorities in the judiciary. One rationale underlying the push for descriptive representation in the judiciary is a substantive one: minority judges bring important and traditionally excluded perspectives to the bench (Ifill 2000). As noted by Judge A. Leon Higginbotham , “having minorities on the court . . . proffers an enrichment of experiences that one can use to examine issues” (Washington 1994, 12). Underlying Judge Higginbotham’s observation is the premise that socializing experiences associated with race and ethnicity af- 14 DIVERSITY MATTERS fect the formation of opinions, and those opinions and experiences continue to be reinforced by a judge’s identification with a racial or ethnic group. In this chapter, we draw on existing research to develop this theoretical perspective and empirically evaluate the claim that minority judges’ decisions are distinct from those made by their white colleagues. In doing so, we recognize that this effort is not new; however, the increased number of racial minorities appointed to the bench over the past decade provides a new opportunity for empirical researchers. Many previous studies on the role of race in federal appeals court decision making were centered on Democratic appointees, particularly those appointed by Carter (Gottschall 1983). During the 1980s, only three African Americans were appointed by Presidents Reagan and George H. W. Bush. During the Clinton administration, the number of minorities on the appeals court bench increased substantially, with nine African American and seven Latino appointees. George W. Bush was more successful than his Republican predecessors in identifying minority candidates for the circuit bench; he appointed six African Americans and three Latinos to the federal appeals courts. Given this increased diversity in appeals court appointments under both Democratic and Republican administrations, we examine decision making from 1982 to 2008. As a result, we are well positioned to revisit the contention raised by supporters of diversity in judicial selection that minority appointees bring a “representative voice” to the bench. Racial Identity and Politics Understanding the role of race and ethnicity in judicial decision making necessarily begins with an inquiry centered on racial identity. Situated at the intersection of sociology and psychology, social identity theory has directed scholars to examine the relevance of group closeness, including those associated with racial and ethnic groups. This theory suggests that an individual’s identity can be conceptualized in terms of group identification—that is, the degree to which the individual is aware of belonging to a group and having a psychological attachment based on his or her perception of shared beliefs, feelings, interests, and ideas with others in the group (Matthews and Prothro 1966; McClain et al. 2009). RACE, ETHNICITY, AND JUDGING 15 Consistent with this approach, scholarship on black racial identity and its effects on political behavior identifies multiple physical , psychological, sociopolitical, and cultural dimensions with a particular emphasis on the role of in-group “closeness” (McClain et al. 2009). Distinct from the concept of racial identification, race consciousness suggests that beliefs about the standing of one’s racial group may be tied to the view that collective action provides an avenue through which the group can advance its interests. From this perspective, race consciousness will be held by those in minority groups who feel “close” to their own race as a result of being oppressed (Miller et al. 1981). An individual’s perception of linked fate is an important cognitive component of racial group consciousness (McClain et al. 2009). In the context of black political behavior, scholars have found that the history of slavery in the United States and African Americans’ shared struggle with discrimination in the twentieth century have promoted a sense of shared destiny (McClain et al. 2009). In a 1984 survey of African Americans, when asked if they believe what happens generally to black people in this...


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