A Typical Case of American Blind Justice?
Justice is blind. All are equal before the law. Courts often are maligned as the branch of government least responsive to democratic control, and accurately so. At the federal level and in some states, judges are unelected officials. Their appointed nature is supposed to insulate them from fleeting whims of the electorate and better allow them to interpret the law in a fair and unbiased manner.
Since the tide began to turn against racist policies in the U.S., perhaps around the time of the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), there has been increasing acceptance of the view that race is at least a questionable (and usually unacceptable) basis for distinctions in public policy. The best way to end race-based discrimination, the saying goes, is to stop discriminating based upon race.
Affirmative action policies are a major affront to this view. These policies overtly base decisions at least in part on race. There are two primary justifications for affirmative action policies. The first is remedial: the policies favor groups that have been the victims of discriminatory policies in the past, attempting a grand rectification of historical wrongs. The second is rooted in a notion of diversity and can operate independently of the first: the policies favor minority groups, the increased presence of which would increase diversity, a good end that benefits all involved. The Supreme Court upheld a state affirmative action policy justified solely on the diversity notion in 2003. See Grutter v. Bollinger, 539 U.S. 306 (2003).
As an affront to the nondiscrimination view of race-based policies, more nuanced issues in the affirmative action area could fill many posts here. This one focuses the inquiry on the appropriateness of race as a consideration in the selection of federal judges. Even more specifically, it looks at the presence of Native Americans among that group.
According to a late 2009 article in the Judge’s Journal, “an entire culture– America’s first culture, as multifaceted as it was and is– is not represented on the federal bench.” Robert O. Saunooke, Native Americans and the Federal Bench: The Time has Come, Judge’s Journal, Fall 2009, at 25. The author, a member of the Eastern Band of Cherokee Indians and an attorney, states his charge in the form of a question: “How can we as members of [the legal] profession continue to dismiss the importance of a Native American presence within the federal judiciary and still profess to support diversity?” Id. The need for Native American federal judges is especially important, Saunooke argues, because “no other group appears more frequently in the federal system than Native Americans,” and “no other cultural group continues to endure the public ridicule and notoriety that Native Americans face.” Id. at 26. Saunooke’s goal is broad:
The challenge is, as it has been for members of most minority groups, to instill in the public mind a broad understanding of the potential that lies within each individual and a sense of the dignity that is each individual’s right. When those two things are understood, there will be more Native American judges– and more judges from every minority group. That will contribute immensely to the quality of justice for Native Americans and for all people.
Id. at 27. An implicit assumption of Saunooke’s argument appears to be that a judge’s race affects his or her judging, and therefore, race should be a factor in judicial selection.
That conclusion, as stated, is contrary to the nondiscrimination view mentioned above. The implicit assumption, however, finds support in two recent studies that conclude that the difference a judge’s race or gender makes in the outcome of cases is “enormous” and “dramatic,” “at least for cases in which race and gender allegedly play a role in the conduct of the parties.” Edward A. Adams, Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find (linking to the studies).
Most of the rhetoric in this corner of affirmative action discourse is limited to the second justification– diversity and its beneficial effects– and without reference to the first (remedial) justification. This may make the arguments in favor of the use of race in selecting judges more palatable to those inclined to oppose affirmative action policies, especially where the social science actually supports the diversity notion. On the other hand, it may be the case that the racial classification itself undermines the diversity notion insofar as classifying an individual on the basis of his or her race is inherently demeaning. If so, balancing these two conceptions seems difficult.
Within the context of judicial appointments, does the use of race as a factor in the selection process constitute improper discrimination, or is it necessary in the interest of justice? If a judge’s race and gender are outcome determinative, at least in part, what does that mean for the rule of law and our understanding of impartiality and justice?