Vol. 34 No. 01 (January 2024) pp. 6-8

DIVERSIFYING THE COURTS: RACE, GENDER, AND JUDICIAL LEGITIMACY, Nancy Scherer. New York: New York University Press, 2023. 223 pp. Paperback $30. ISBN: 9781479818723.

Reviewed by Nancy Arrington. Department of Political Science, Cal Poly San Luis Obispo. naarring@calpoly.edu.

In Diversifying the Courts: Race, Gender, and Judicial Legitimacy, author Nancy Scherer addresses why American Presidents have sought (or not sought) to diversify the federal judiciary and then tests whether diversifying the courts has (or has not) shaped perceptions of legitimacy among the public. A key theme is what Scherer terms the “Diversity Dilemma:” if descriptive representation increases the legitimacy of those who are descriptively represented, then increases in legitimacy among women or people of color as the court diversifies are offset by decreases in legitimacy among men and white members of the public. The diversity dilemma suggests that using diversification of the court as a tool to build overall levels of judicial legitimacy among the public may be misguided.

Chapter 1 summarizes the process of diversification of the federal judiciary and addresses how the salient characteristics worthy of diversifying have changed over time. In addition, Scherer tracks the selection of women and judges of color to the US Supreme Court, US Courts of Appeals, and US District Courts from the Roosevelt through Trump presidencies.

Chapters 2 and 3 address Democratic and Republican Presidents’ stances on diversification of the judiciary. For both parties, a key focus is on building the legitimacy of the courts, but the parties diverge in the tactics for doing so. For Democratic presidents, the justification or goal of diversification has changed over time. Scherer explains that President Carter sought diversification as “a means to remedy past discrimination” (p. 27) whereas subsequent Democratic presidents have emphasized descriptive representation, the idea that political offices should generally reflect salient characteristics of the public. President Obama, by emphasizing shared experiences and judicial empathy, “is the first to rely on “descriptive/substantive representation to justify his diversity policy for federal courts” (p. 37).

In describing recent Republican Presidents’ approaches to diversity in the judiciary,Scherer notes that Republican presidents “publicly oppose affirmative action policies” and “dismantle the diversity plans of their Democratic predecessors” (p. 41), but then still make “special efforts to appoint minority and female judges” (p. 42). This three-part strategy used by Republican presidents since Regan attempts to maintain support from the anti-affirmative action base while still seeking support from additional constituencies. This chapter on Republican opposition to diversification efforts also addresses the potential risk of stigmatization and backlash and addresses the idea that diversification efforts may undermine the legitimacy of the judiciary if the public believes that unqualified judges are appointed only for their race or gender.

Chapter 4 outlines interview data from 19 federal court judges (4 men of color; 2 women of color; 9 white women; 5 white men) in 2009. The interview data offer interesting insight into how sitting judges view concepts addressed in the earlier chapters. For example, white male judges “uniformly dismissed” the idea that diversity appointments should be made to remedy past discrimination while Hispanic and African American judges were less dismissive of the idea (p. 60). Only two judges (a white woman and a white man) rejected the idea that judges are shaped by their race, gender, or ethnicity, and, generally, judges were receptive to the goal of descriptive representation. The non-white judges interviewed did not think that diversity strategies diminish the quality of the court, although some of the white women interviewed emphasized the importance of qualifications and/or expressed concerns about backlash or de-legitimatization.

Chapters 5 through 9 address the effects of diversification on perceptions of legitimacy and report evidence from a series of survey experiments. One set of survey experiments tests for perceptions of judicial legitimacy based on aggregate levels of women or Black judges in the judiciary relative to the population. The experiment on gender (Chapter 6) shows that people under-estimate the number of women in the judiciary (see table 6.1), that men have higher baseline levels of judicial legitimacy, and that women see the judiciary as more legitimate when there is gender parity (51% women). Assessing the potential for heterogenous treatment effects by party identification of this study (Chapter 9) suggests that while party ID has a direct effect on perceptions of legitimacy, treatment effects do not vary by party.

Chapter 7 assesses how the over or under-representation of Black judges on the bench relative to the population shapes perceptions of legitimacy. Descriptions of the experimental procedure suggest that Chapter 7 is a re-telling or re-analysis of the Scherer and Curry (2010) data. Chapter 7 shows that Black respondents see the judiciary as more legitimate when the percentage of Black judges is greater than the percentage of Black people in the population. As expected by the discussion of the diversity dilemma, white respondents see the judiciary as less legitimate when the percentage of Black judges is greater than the percentage of Black people in the population.

Chapter 8 outlines a survey experiment designed to test for the effects of the combination of descriptive and substantive representation by providing information about a racially salient case in which a judge excludes evidence in a drug trial for illegal search and seizure. The race of the judge is varied in the treatment conditions. Absent information about the judge’s race (i.e., the control condition), there is substantial variation in respondent attitudes towards the judge’s decision based on respondent race. Black respondents are much more supportive of the decision to exclude evidence than white respondents. The race of the judge does not affect Black respondents’ support for the decision, but the race of the judge does matter for white respondents: white respondents are more critical of the decision to exclude evidence in a drug case when the judge is Black.

Finally, the conclusion situates the empirical findings of the previous chapters within President Trump’s hostility towards the judiciary, emphasizes the importance of judicial legitimacy, and returns to the concept of the diversity dilemma. Overall, this project brings together an assessment of presidential approaches to judicial diversification, interview data of sitting judges about their attitudes towards judicial diversity, and survey experimental data about the effect of judicial diversity on respondents’ perceptions of judicial legitimacy. Nancy Scherer has produced a substantial body of work on diversification in the judiciary over the last many years. This book brings together some of those ideas and empirics from earlier projects in a holistic and useful way. However, I had hoped it would include some replication of those earlier projects with more recent data. The chapters on presidential approaches to diversification efforts are particularly interesting and provide a wealth of historical information about descriptive representation in the judiciary that is sometimes missing from empirical work on diversification.

Of course, diversity is not the only factor that shapes legitimacy. While a direct assessment of other sources of judicial legitimacy is beyond the scope of this book, situating the role of diversity in the broader web of legitimizing factors would add useful nuance. For example, if a goal is to build aggregate legitimacy of the judiciary, are there non-diversity related tactics that might increase legitimacy among white people and white men and, thus, offset the drop in legitimacy from increased diversification? Might exposure to legitimizing symbols (borrowing from Gibson’s work) of female and minority judges and justices erode the negative association between diversity and legitimacy among white and white male members of the public while further building legitimacy among women and minority members of the public? Altogether, this book is a useful contribution to the literature on descriptive representation in the judiciary and shows the importance of diversifying the judiciary as a means of building legitimacy among historically excluded populations.

© Copyright 2024 by author, Nancy Arrington.