Myth of the color-blind judge: an empirical analysis of racial harassment cases.

• Author: Chew, Pat K.

TABLE OF CONTENTS I. INTRODUCTION II. COLOR OF THE JUDICIARY A. Racial Representation in the Judiciary B. Judicial Diversity in Context 1. Racial Underrepresentation Relative to the General Population 2. Racial Diversity in the Bar and Among Presidential Appointments III. RESEARCH ON JUDICIAL DECISION MAKING AND JUDGES' RACE IV. EMPIRICAL STUDY: JUDGES' RACE IN RACIAL HARASSMENT CASES A. Research Methodology B. Results of the Statistical Analyses 1. Analysis 1: Cross-tabulations of Individual Variables with Case Outcomes 2. Analysis 2: Logistic Regression of Judges' Race on Case Outcomes 3. Analysis 3: Judges' Race with Judges' Political Affiliation and Plaintiffs' Claims V. DISCUSSION AND IMPLICATIONS A. Judges' Race and Case Outcomes B. Judges' Race and Judges' Political Affiliation C. Judges' Race and Merits of the Case VI. CONCLUSION APPENDIX A: DATA SET SUMMARY APPENDIX B: LOGISTIC REGRESSIONS FOR MAIN EFFECTS APPENDIX C: LOGISTIC REGRESSIONS FOR TWO-WAY INTERACTIONS Our experiences instantly become part of the leas through which we view our entire past, present, and future, and like any leas, they shape and distort what we see. (1) I. INTRODUCTION

In today's political climate, congressional and presidential partisanship have created a gauntlet for any judicial appointee and a quagmire of unfilled judicial posts. (2) Legislators fight over the appropriate political, racial, and gender composition of the judiciary (3) and debate the projected rulings of candidates of particular political bona fides. (4) While the judiciary has become more racially diverse, it remains homogeneously White and hardly reflects the diversity of the American society it serves. (5) Understandably then, a range of politicians, scholars, and the judiciary itself continues to press for a more racially diverse and representative bench. (6)

What difference will it make if we have a more racially diverse judiciary? Some argue that greater diversity among judges would provide minority role models and that public confidence in the judiciary system would be enhanced. (7) Others argue that having more judges of color may substantively improve the judicial decision-making process by increasing judicial impartiality and yielding fairer legal outcomes. (8)

But do these benefits actually occur and are there accompanying costs? Researchers are just beginning to explore and answer these questions. In the past, so few minority judges sat on the bench that studying them would yield little generalizable information. While the numbers are still relatively small, there are enough judges that we can now begin to do preliminary analyses. (9) In addition, while empirical research is still fairly novel in legal scholarship, it is emerging as an important and relevant form of analysis. (10) At the same time, scholars have begun to deploy innovative research methods for understanding the cognitive processes of judicial decision making, including the possible roles of race and prejudice in those processes. (11)

This Article begins with a brief overview of the racial diversity of the judiciary of both the federal and state courts, including the degree to which they reflect the racial diversity of American society. (12) Next follows an introduction to the social science research on judicial decision making. (13) In particular, we discuss studies on how personal attributes of judges, such as race, relate to their judicial deliberations. (14)

We then turn to our own empirical study of judges' race and their decision making in federal court cases on workplace racial harassment. (15) While we focus on the judges' race, (16) we also consider how the judges' political affiliations. (17) and how the plaintiff-employees' particular claims of racial harassment affect who wins. (18) Racial harassment cases are a particularly appropriate context for these inquiries because the relevant laws require judges to tap their discretionary judgment on race-related matters. (19) In addition, the thousands of racial harassment claims (20) make understanding judicial decision making in these cases urgent.

Our exploratory empirical study, the first on the role of judges' race in racial harassment cases, resulted in striking findings. (21) We learned that judges' race matters very much in how cases turn out, but not necessarily in predictable ways. For example, African American judges rule quite differently from White judges. The judges' political affiliation and the merits of the case also can play a part. The study's results bring both comfort and consternation to those who think that judicial decision making is a totally rational and objective process.

2. COLOR OF THE JUDICIARY

   1. Racial Representation in the Judiciary

      Data on the racial diversity of the judiciary are now available from various sources. (22) These data reveal that, although a minority judge is not the rare phenomenon it was decades ago, (23) the American judiciary continues to be overrepresented by Whites. As we discuss below, this overrepresentation persists in both the federal and state courts.

      In the federal courts, out of a total of 805 active judges, non-White judges constitute about 19% of the bench. (24) As shown in Chart 1, 11% of judges are African Americans, 7% are Hispanic, (25) and fewer than 1% are Asian Americans. Minority representation is lower at the federal appellate level than at the district court level. (26) Currently, no Native American judges sit on the federal judiciary at all, (27) and no Asian Americans sit at the appellate level. (28) As Lawrence Baca, a Native American and former chair of the ABA Commission on Racial and Ethnic Diversity in the Profession, reports, he has been before a minority judge only once in his twenty-seven-year career at the Department of Justice. (29) Baca observed that he would likely retire from practice "'without ever once appearing before a judge of my own race." (30)

      In the state courts, minority representation is even less than in the federal courts. Minority judges represent approximately 10% of the bench at all state court levels, (32) as shown in Chart 2. African Americans constitute fewer than 6%, Hispanics fewer than 3%, Asian Americans 1.1%, and Native Americans 0.1%. Minority judges predominantly serve in the state trial courts rather than state appellate courts. (33)

      As shown in Chart 3, combining both federal and state courts, the percentages of judges by race are similar to those in the state courts. Of a total of over 12,000 judges, White judges constitute approximately 90% and minority judges constitute approximately 10%. (36) African American and Hispanic judges together constitute about 90% of all the minority judges. (37)

   2. Judicial Diversity in Context

      1. Racial Underrepresentation Relative to the General Population

         The practical significance of this paucity of minority judges comes into focus when one compares their representation to that of the general population. In theory, if the judiciary is open to all individuals regardless of race, one would expect minority representation in the judiciary to reflect minority representation in the general population. Instead, as described below, a dramatic discrepancy exists between minority representation on the bench and in American society generally.

         Comparing Table 1 and Chart 3, while minorities constitute about 30% of the general population, only about 10% of the judiciary is of color. (40) More specifically, over 12% of the general population is African American, while African American judges represent about 6% of the overall judiciary. Among Hispanics, Asian Americans, and Native Americans, the disparity is even greater. Hispanics represent about 12.5% in the general population, about four times their representation on the judiciary. Similarly, Asian Americans constitute 3.6% of the general population, over three times their representation on the bench. Meanwhile, Native Americans are underrepresented by a factor of ten. Moreover, this summary likely underestimates the underrepresentation of minority judges, given that the most current census data for the general population are from 2000 and minority populations have markedly increased in the last eight years (41)

         Disaggregating the data on state and federal judges provides additional insights into racial diversity in the two systems. By comparing the data in Table 1 and Chart 2, we see that state court judges reflect extreme underrepresentation among every racial minority group. In contrast, by comparing the data in Table 1 and Chart 1, we find that while federal court judges also underrepresent minorities as a whole, the level of underrepresentation varies with each racial group. Hispanics number almost twice the representation in the general population as in the federal judiciary (42) Asian Americans have over five times the representation in the general population than in the federal judiciary, (43) indicating the greatest underrepresentation among minority groups except for Native Americans. As indicated earlier, Native Americans are not represented at all on the federal bench (44) On the other hand, the representation of African Americans in the federal judiciary suggests a positive direction, with 12.3% representation in the general population and 11.1% representation in the federal judiciary.

      2. Racial Diversity in the Bar and Among Presidential Appointments

         The racial diversity of lawyers is also relevant to our understanding of the diversity of judges. Judges are typically selected from among lawyers, so a lack of minority lawyers would make it more challenging to build a racially diverse judiciary and might explain in part the scarcity of minority judges. In fact, minorities are dramatically underrepresented among lawyers. (45) In 2000, about 4% of lawyers were African American, 3.3% were Hispanic, 2.3% were Asian American, and 0.2% were Native American (46) Combined, minority lawyers constituted less than 10% of the...