The federal bench is not a very diverse group. University of Rochester political science professor Maya Sen reports that of 1,355 sitting federal judges, 81 percent are white and 76 percent are male. In a New York Times op-ed, Sen attributes this homogeneity in part to the ABA’s judicial candidate ratings. Sen’s research shows that there is an interesting correlation between the ABA’s ratings, which are usually requested by the President, and whether a candidate is confirmed. She states that candidates who receive the lowest rating (“not qualified”) are “35 percentage points less likely to be confirmed than their more highly ranked peers.” African Americans and women are less likely to receive the ABA’s “well qualified” rating than similarly situated peers by 42 and 19 percentage points, respectively. Judicial performance doesn’t seem to account for this gap. Sen’s data indicates that a judge who received a “not qualified” rating from the ABA was “no more likely to be reversed [on appeal] than his or her higher-rated peers.” Sen sees this as an indication of bias against women and minorities.
Sen’s op-ed made me wonder about diversity among Michigan court judges. Using figures from 2008-2010, the American Judicature Society (AJS) found that approximately 26 percent of Michigan judicial positions were held by women and 15 percent were held by minorities. (I was unable to find more current information.) In comparison to Sen’s data on the 2014 federal bench, the Michigan bench looks slightly better along gender lines but worse in terms of minority representation. Neither category mirrors Michigan’s overall population, of which nearly 51 percent are women and 24 percent are not white.
So why is our bench less diverse than it could be? Perhaps it has something to do with the demographics of our bar. The percentage of minority judges identified in the AJS data nearly matches the percentage of practitioners who identified their race/ethnicity as non-European in a 2010 SBM survey. Another factor could be our system of judicial selection. According to an AJS study of judicial diversity nationwide, women and minorities do well in states that use a merit selection system—which usually means that a governor or legislature appoints a judge from a group of finalists selected by a panel of lawyers and nonlawyers. The AJS study notes that other factors, like age and experience requirements and the political environment, also seem to play a role. Then there is just the possibility, as Sen suggests, that women and minorities are hindered by bias. In any event, I would like to see a study like Sen’s performed in Michigan. (So if you know a political science graduate student hunting for a project, this would be great!)